The Sentencing Guidelines Council has announced that the new edition of the Magistrates Court Guidelines will take effect on 4 August 2008.

In the intervening period there is a substantial training exercise to be undertaken to explain to magistrates and their legal advisers the changes which are brought about by the new edition. These will all be explored, in due course, in the Gazette.

However, on 3 March 2008 definitive guidelines in relation to assaults by adults came into force, both in the magistrates and the crown courts. Magistrates are not yet familiar with these guidelines and defence solicitors will need to bring them to their attention.

As with all guidelines the sentencing tables are prepared on the basis that a ‘first-time offender’ has just been convicted after a trial. A discount for guilty plea must always be given.

However, it is important that courts understand that ‘first-time offender’ has a special meaning. It means an offender who does not have a conviction which, by virtue of section 143(2) of the Criminal Justice Act 2003, must be treated as an aggravating factor. This will occur when the court considers that it can be reasonably so treated, having regard in particular to:

  • The nature of the offence to which the conviction relates and its relevance to the current offence; and
  • the time that has elapsed since the conviction.

This is often summarised in guidelines as meaning that a ‘first-time offender’ is a person who does not have a ‘relevant and recent conviction’.

Particular attention needs to be paid to the guideline in relation to common assault (set out in the table).

This offence causes particular difficulties in sentencing. Many such offences could have been charged under section 47 of the Offences Against the Person Act 1861 but, for various reasons, the Crown prefers to proceed with a summary-only charge. However, a person cannot be sentenced for an offence with which they could have been charged but which was not preferred by the prosecution. This means that, for common assault, a unique sentencing regime has to be used.

At the first stage of the sentencing process for this offence the court must identify whether or not there are aggravating factors that indicate a higher degree of culpability. Examples are listed in the guideline. If there is no such factor, the starting point for sentence will be a fine. If there is one such factor, a community order; if there are two, a custodial sentence will normally be the starting point, subject in each case to discount for guilty plea and personal mitigation. Factors indicating a more than usually serious degree of harm only come into play once the initial level of sentence has been identified. If the harm is serious then the sentence will move up the sentencing range within fines, community orders or custody as appropriate. However, the level of harm cannot itself fix the starting point.

This guideline applies not only to the basic offence of common assault but also to racially and religiously aggravated offences. It must be noted that factors indicating racial and religious aggravation cannot be treated as aggravating factors when only the basic charge is preferred, the Crown has chosen not to make such an allegation.

The vast majority of assaults are specified or serious specified offences, and bring into play the sentencing provisions for a dangerous offender. However, it will seldom be appropriate for a magistrates court immediately to commit to the crown court for this reason alone. In order to make the appropriate judgments about the significant risk of a further specified offence, and whether that offence creates a significant risk of serious harm to a member of the public, full reports will usually be required.

In relation to the guidelines for section 47 assault and section 20 infliction of grievous bodily harm or unlawful wounding, special care has to be taken with the guidelines published. The suggested starting points and ranges are based upon a ‘first-time offender’ as defined earlier, convicted after a trial. However, matters of personal mitigation are often highly relevant to sentencing for these offences and may justify a non-custodial sentence, particularly in a case of a ‘first-time offender’. Such a disposal might also be considered appropriate where there is a guilty plea.

In looking at aggravating and mitigating factors, whether listed in the guideline or in the Sentencing Guidelines Council’s generic paper Overarching principles: seriousness, it is important that courts avoid double-counting. Thus, in the guideline for section 20 a higher starting point applies where a weapon has been used. The use of a weapon cannot then be treated as a further aggravating factor.

The Sentencing Guidelines Council also published, with effect from 3 March, a generic guideline dealing with assaults by adults on children under 16, and on child cruelty. These offences include a wide range of behaviour and all of these are considered in the guideline. Particular consideration is given to chastisement where the guideline states that, where a defendant is charged with an assault occasioning actual bodily harm and the court finds, as a fact, that the defendant only intended to administer lawful chastisement to the child and the injury was neither intended nor foreseen, this should result in a substantial reduction in sentence and should not normally result in a custodial sentence. Where not only was the injury neither intended nor foreseen but was not even reasonably foreseeable, then a discharge might be appropriate.

The guideline also gives particular consideration to the adverse effect that a sentence may have on the victim and on offenders who have primary caring responsibilities.

Common assaultCriminal Justice Act 1988 (section 39) andRacially/religiously aggravated common assaultCrime and Disorder Act 1998 (section 29)Racially or religiously aggravated common assault is a specified offence for the purposes of section 224 of the Criminal Justice Act 2003Maximum Penalty (section 39): 6 months’ imprisonmentMaximum Penalty (section 29): 2 years’ imprisonment

Nature of failure and harm - Starting point

The custody threshold is normally passed where two or more aggravating factors indicating higher culpability are present - Custody

The community sentence threshold is normally passed where one aggravating factor indicating higher culpability is present - Community order

Assault where no injury caused - Fine

1. Common aggravating factors:

Factors indicating higher culpability: use of a weapon to frighten or harm the victim; offence was planned or sustained; head-butting, kicking, biting or attempted strangulation; offence motivated by, or demonstrating, hostility to the victim on account of his or her sexual orientation or disability; offence motivated by hostility towards a minority group, or a member or members of it; abuse of a position of trust; offence part of a group action

Factors indicating a more-than-usually-serious degree of harm: injury; victim is particularly vulnerable or providing a service to the public; additional degradation of the victim; offence committed in the presence of a child; forced entry to the victim’s home; offender prevented the victim from seeking or obtaining help; previous violence or threats to same victim

2. Common mitigating factors: provocation; single push, shove or blow