Criminal law – Sentencing Council guidelines

On 6 April 2010 the new Sentencing Council came into being. Previous guidelines are deemed to be guidelines of the council until they are reconsidered. Courts must now follow any relevant guideline unless it is satisfied that it would not be in the interests of justice to do so. Similarly, each court must identify which category of seriousness most reflects the individual case so as to identify the starting point and sentence within the range unless that also would not be in the interests of justice.

The coming of the council means that significant analysis is required of the meaning of particular guidelines. Critical words in guidelines on violence have been considered in a number of cases.

The courts have analysed what is meant in the context of assaults by a ‘particularly grave injury’, which significantly increases seriousness for sentencing purposes. In R v Collins [2009] EWCA Crim 2534, it was held that this did not require the injury to be a permanent one. In that case a victim had been shot twice by a pre-armed defendant; one shot perforated their colon close to liver and kidney, the other hit the groin. The injuries were life-threatening although corrected by two major operations. Permanence of the injury was not the crucial test; vital body parts had been at risk. However, in the context of section 20, a fractured cheek bone requiring an operation to be reset, a bloody nose, soreness and bruising to the left arm, and injury to the right shoulder were not, in the context of grievous bodily harm, deemed to be particularly grave injuries (R v Blythe [2009] EWCA Crim 1982). The same applied to a fractured jaw (R v Shannon [2008] EWCA Crim 2131 (S)95) and also to a broken hip (R v Howard [2009] EWCA Crim 1984).

Cases have also considered the meaning of the word ‘premeditation’ in the guidelines. A conditional intent to use a piece of glass as a weapon could amount to premeditation (R v Haystead [2009] EWCA Crim 1177), and a domestic assault by a man with relevant previous convictions, where injuries were sustained in a repeated attack and were far from minor, was equivalent in the court’s opinion to premeditation (R v Parker [2009] EWCA Crim 1226).

Detailed consideration of the guideline on causing death by careless driving was given in R v Campbell [2009] EWCA Crim 2459.

Corporate manslaughterThe final guideline published by the Sentencing Council was on corporate manslaughter, and health and safety offences which cause death. This came into effect on 15 February 2010. It is concerned only with offences committed by companies and organisations. Those found guilty of corporate manslaughter will possibly be liable for fines of millions of pounds – the level should seldom be below £500,000. For other health and safety offences that cause death, fines from £100,000 to hundreds of thousands of pounds should be imposed. However, in deciding the level of a fine, account has to be taken of the financial circumstances of the organisation. It is critical that the court has full, accurate and reliable information on those circumstances. The effect on the employment of the innocent may be relevant, as may the effect on the provision of public services. As is usual, the guideline lists a series of aggravating and mitigating factors.

However, of particular relevance not just to such offences but to all regulatory crime, is an annex to the guideline identifying in some detail the financial information that organisations will be expected to provide. Defence solicitors may wish to use this annex to advise organisations and their accountants of the detailed information required to satisfy the court’s needs.

When considering which guideline to apply to a particular set of facts it is important to look at the substance of the behaviour rather than the form in which it is charged. Thus in R v Lawson [2010] EWCA Crim 193, although the case was charged as a confidence trick, the theft in breach of trust was the more appropriate guideline.

ExpectationIn Thornton v CPS [2010] EWHC 346 (Admin), the original court had indicated that a community order was appropriate before asking for pre-sentence reports. When the defendant received a custodial sentence, it was argued that the expectation principle prevented such a sentence from being imposed.

The guideline for the offence was custody, and the original court had given no reason for disapplying it. In those circumstances it was held that there could be no expectation. It is now the guideline which sets the expectation. Solicitor-advocates will need to ensure that courts giving indications of community orders set out their reasoning for moving, in the interests of justice, from the guideline sentence.

HomicideFor all offences on or after 2 March 2010, a new starting point for sentencing those convicted of certain types of murder has been inserted into schedule 21 to the Criminal Justice Act 2003. For adults who take a knife or other weapon to the scene of the crime with intent to use it to commit any offence, or to use it as a weapon, and use it in committing murder, the starting point is 25 years. In R v Maina; R v Saddique; R v Kika [2009] EWCA Crim 2544, the Court of Appeal had already given detailed consideration to the appropriate sentence when a knife was involved in a killing.

In R v Appleby and others (AG Ref No 60, 62, 63,/09) [2009] EWCA Crim 2693, the court strictly limited the meaning of ‘one-blow’ manslaughter, indicating that gratuitous unprovoked violence in the street would usually fall outside the use of that phrase. Older judgments should be carefully reconsidered where the death is anything but ‘almost accidental’.

Dangerous offendersThe requirement that, were a determinate sentence being imposed it would be at least four years, has severely restricted the use of any dangerous offender sentence. In relation to an offence of assault occasioning actual bodily harm with a maximum penalty of five years, and a discount for a guilty plea, an extended sentence was therefore set aside in R v Fisher [2009] EWCA Crim 1852 and also, in the context of domestic violence, in R v Fazli [2009] EWCA Crim 939.

Minimum sentenceOnce the court had found that a minimum sentence is unjustified in all the circumstances, there was no limitation on the court’s sentencing discretion and a community order could be imposed (R v Burns [2009] EWCA Crim 1907). In that situation normal sentencing principles applied and the discount for a guilty plea was not limited to 20% (R v Darling [2009] EWCA Crim 1610).

In the context of the minimum five-year sentence for a firearms offence, and the defence raise the issue of exceptional circumstances and give evidence in support, it is for the Crown to disprove those circumstances to the criminal standard. These were not extraneous matters of mitigation which might otherwise amount to an exception to the Newton rules (R v Lashari [2010] EWCA Crim 1504). A Newton hearing in the Crown court attracts higher fees for both litigators and advocates.