- Crown Court - Definitive Guideline: Sexual offences
- Update 10 - Magistrates’ Court Sentencing Guidelines
With regard to a convicted individual's previous "good character", the new guideline says something which is rather interesting.
Consider the guidance for offences of rape. The listed mitigating factors are:
No previous convictions or no relevant/recent convictions, remorse, previous good character and/or exemplary conduct*, age and/or lack of maturity where it affects the responsibility of the offender, mental disorder or learning disability, particularly where linked to the commission of the offence. The asterisk * next to 'previous good character and / or exemplary conduct' refers the sentencer to this note:
* Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor. In the context of this offence, previous good character/exemplary conduct should not normally be given any siginificant weight and will not normally justify a reduction in what would otherwise be the appropriate sentence.
Just what does this mean? The Response to the Consultation (which preceded the new guideline) offers an explanation - see, in particular, pages 18 and 19. Two decided cases are also of relevance: Milberry  EWCA Crim 2891 and Hall  EWCA Crim 1450.
Here are two quotations from the Response:
A) The Council has included “previous good character and/or exemplary conduct” as a mitigating factor in all its guidelines. This factor attracted a number of comments and the Rights of Women response echoed a commonly held view on good character. “Previous good character and/or exemplary conduct is a dangerous factor to have as mitigation, even with the caveat provided that little weight should be attached. Although an
offender may have led an exemplary life or be of good character up to the point of the offence, this does not mean that, now having committed an offence, they should have their sentence reduced because of their previous activities prior to it.... This is also dangerous because exemplary conduct could be conducted alongside a life of sexual offending, for example, it is possible for someone to win a Nobel peace prize and simultaneously conduct a campaign of rape against their wife”
B) the following wording will be added to all offences carrying a maximum of life or 14 years:
“In the context of this offence, good character/exemplary conduct should not normally be given any significant weight and will not normally justify a substantial reduction in what would otherwise be the
This approach follows established principles about lesser weighting in all serious offences but allows consideration of previous good character in a way that clearly signals to the public and sentencers that the process of assessing this mitigation requires careful consideration and weighting.
Logically, there is previous ACTUAL good character and previous PERCEIVED good character. Some individuals have developed a certain public image by doing work for charities/good causes - e.g. the late Jimmy Savile (previous post). These activities enabled them to come into contact with (usually young) victims. It may be that such perceived good character was part of their attraction to those who became victims. This appears to be what the guidance means when it states - "Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor."
It will be interesting to see how this develops as it is applied by the courts in actual cases with all their varying facts.