Question 2: ‘Offence seriousness should be the primary determinant of sentence. But that does not mean that an offender’s criminal record is irrelevant to sentencing.’ In what ways, if at all, do you think previous convictions should inform sentencing decisions?
The first part of the question was clearly noted in the judgment of Queen that ‘the proper way to look at the matter is to decide a sentence which is appropriate for the offence before the court’. Thus, the seriousness of the current offence should be the primary determinant factor in sentencing. Lord Taylor CJ in Bexley (1993 has further emphasized, the court must regard primarily to the seriousness of the current offence. In determining the seriousness of the offence, the sentencer would always take into account any aggravating or mitigating factors which impinge upon the question of offence seriousness. Some of the factors apply across a range of offences. They may further treat previous convictions, there is considerable evidence, as a form of aggravation, without much reference to the concept of a ‘ceiling’ set by the current offence.
The present essay I would examine into two parts, firstly, whether the offence seriousness should be the primary determinant of sentence ; then, what information about a defendant’s prior record is relevant to sentence selection, and in what ways that inform sentencing decisions.
The key concept of offence seriousness:
It is very difficult to define ‘seriousness’ in the abstract, and no attempt is made to do so in existing sentencing law. It is of great importance, however, for the sentencer to gauge the seriousness of one offence in relation to another, and to distinguish within each offence, for example one case of burglary from another case of burglary. In assessing seriousness, the sentencer would regard to the immediate circumstances of the offence, and the degree of the offender’s culpability in relation to that offence.
Factors which aggravate offence seriousness:
Offence seriousness can be notified through the aggravating factors which are well established in English sentencing practice: offences by groups or gangs; offences against young, elderly or otherwise vulnerable victims; offences involving the abuse of trust or authority; racially motivated offences; and offences involving planning or organization. By weighing up such factors as these, the sentencer will be able to reach a view on offence seriousness, and hence a provisional view on the appropriate sentence. According to the CJA 1991 (and now the PCC (S) A 2000), offence seriousness is the key factor in determining whether the sentence will be a financial, community or custodial penalty.W-55
Offence seriousness justifies severe sentence:
The PCC (S) A 2000 requires that (with an exception relating to violent offences and sexual offences) a custodial sentence can be imposed only where the offence committed by the offender is ‘so serious that only such a sentence can be justified’ (s. 79 (2) (a). this makes it clear that custodial sentences should be reserved for the most serious crimes, and that on every occasion when a sentencer is considering using custody he must ask himself whether ‘only such a sentence can be justified’: in other words that no lesser penalty, such as a community order, will do. The exception referred to above, that a sentencer may impose custody where the offender has committed a sexual offence or a violent offence, requires that ‘only such a sentence would be adequate to protect public from serious harm from him’ (s. 79 (2) (b).
The 2000 Act also provides that a sentencer must justify the imposition of a community sentence ( rather than something less severe) and the criterion here is that the offence committed by the offender is ‘serious enough to justify such a sentence’ (s. 35 (1)). This makes it clear that community sentences should be reserved for that ‘middle band’ of offending which is serious enough to justify that approach but which is not so serious that the only possible sentence is a custodial one. The sentencing hierarchy is, then, primarily fixed by offence seriousness. It is offence seriousness which mainly determines the outcome at both the ‘custody threshold’ and the ‘community sentence threshold’.
Guidelines to assess seriousness:
Sentencers are not entirely on their own in assessing seriousness. They do not need to start from a blank sheet in every case. They will derive guidance on the assessment of offence seriousness, particularly where sentence is being imposed in the Crown Court, from the guideline judgments of the Court of Appeal and, where sentence is being imposed by magistrates, from the Magistrates’ Association Guidelines (2000) and, perhaps, guidelines and norms produced by the particular bench. This guidance relates to sentencing for particular offences, which deals with sentencing for a range of individual crimes.
Relevance of previous convictions:
The significance of the offender’s previous convictions to the current sentence is virtually unanimous. The Streatfeild Committee regarded it as ‘obvious and clear’ (1981, p-8) that full details of the defendant’s criminal record should always be made available to the sentencing court and it seems that sentencers themselves regard the receipt of this information as being of very great significance, second only perhaps to details of the current offence. (Hogarth, 1971, PP-231-235). It can be seen that s.151 (1), 2000 Act gives sentencers complete flexibility to take account of previous convictions when sentencing, so that offenders can now be sentenced ‘on their record’.( One of the clearest statements of this principle can be found in Queen (1981). There the offender pleaded guilty to theft and related offences. Queen, who had a long list of offences of dishonesty going back 25 years, was given a prison sentence of 18 months. In the court of Appeal Kenneth Jones J said that it was clear that the offender had been sentenced ‘not merely for the offences which he committed, but for his record’.) In Spencer and Carby (1995), where two pickpockets had been sentenced for attempted theft and for theft, McCowan LJ remarked that ‘without doubt the offences for which they were being dealt with could properly be viewed as more serious by reason of the appallingly long records of each of these men for pickpocketing offences’. Lord Bingham CJ in Brewster (1998) stated that ‘the record of the offender is of more significance in the case of domestic burglary than in the case of some other crimes’, holding that courts should distinguish between professional burglars and others who show less persistence and deliberation.
Arguments against the relevancy of previous convictions:
No prisoner should be sentenced for the offences which he has committed in the past and for which he has already been punished. The proper way to look at the matter is to decide a sentence which is appropriate for the offence for which the prisoner is before the court. Then in deciding whether that sentence should be imposed or whether the court can extend properly some leniency to the prisoner, the court must have regard to shoes matters which tell in his favour, and equally to those matters which tell against him; in particular his record of previous convictions. Then matters have to be balanced up to decide whether the appropriate sentence to pass is one at the upper end of the bracket or somewhere lower down. Some Court of Appeal decisions, such as Galloway (1979), Bailey (1988) and Bexley (1993), displayed a general acceptance of the view that it is wrong to impose a sentence which is longer than would be indicated by the seriousness of the offence purely on the basis of previous record. A poor record should not, on that view, be regarded as an aggravating factor relevant to offence seriousness.(The Court of Appeal confirmed in Bexley (1993), one of the decisions delivered soon after the 1991 Act came into force, Lord Taylor CJ held that s29 (1) ‘embodies the principle established in case law before the 1991 Act, that an offender who has been punished for offences committed in the past should not in effect be punished for them again when being sentenced for a fresh offence’. ) . Sadly, On the other hand, the argument, not sentencing a man on his record but only for the offence before the court, does not provide any fair approach. For example, where two offenders appear together charged with burglary. For one of them, it is his first offence; the other has been convicted of burglary five times before and has breached probation orders and failed to comply with community service orders. How can it be just to treat them both the same?
Previous convictions in American Jurisdiction:
The modern American sentencing guidelines movement selects the defendant’s criminal record ( or ‘criminal history score’) as one of the key determinants in sentencing (von Hirsch, 1976, 1981). In some American jurisdictions criminal record has traditionally been given greater weight by sentencers even than the nature of the current offence ( Johnston et al…, 1973)
Previous convictions should inform sentencing decision:
In what ways previous convictions to be relevant:
It can be inferred that most of the references to Criminal record’ so far have been general. But criminal records differ in several ways, therefore the court must weigh and interpret the criminal record of the particular offender it is dealing with. The court would likely to take into consideration of the factors of prior record, which are emerged relevant, as is follows: Were the previous offences a long time ago? Has there been a recent gap in offending ? were the previous offences similar, or serious?
- Number of previous convictions:
The number of previous convictions is regarded as important in itself is supported by several observations of the way in which prior record information is provided for and handled by sentences. It is suggested that formal police cautions should be presented to the court at the same time as previous convictions, but ‘care must be taken to present cautions separately so that the distinction between cautions and convictions is clear’ (Home Office, 1985). Findings of guilt when the defendant was a juvenile and convictions followed by nominal sentences are also included. Spent convictions are included, although they should be specially marked. However, it is clear that number alone is not the governing factor. A research was carried out by Shapland indicates that sentences generally do not require that a defendant’s full criminal record be read out in court, requesting ‘last three or four only’ (Shapland, 1981) as reflecting previous convictions generally regarded as relevant. Official guidance ( Home Office, 1973 ) suggests that previous convictions should not be read out if they ‘are either so stale or so different from the current offence as to make them of little relevance’. There seems to be a clear working assumption on the part of police and court personnel that some previous convictions are more relevant than others. The common practices of prosecuting sample counts and taking offences into consideration tend to distort the number of previous convictions appearing on a record.
- Similarity of previous offences to the current offence:
The English practice is heavily weigh the previous similar offences against an offender than the dissimilar offences. It is unusual even to cite previous road traffic offences after a non-traffic conviction, or to cite non-traffic offences after a traffic conviction. More generally, previous offences of a class different from the current offence may be able to be ignored (e.g. in the case of theft, no reference may be necessary to a previous conviction of a sexual offence)’. The Magistrates’ Association’s Sentencing Guidelines (2000) seem to follow this trend. Magistrates are advised: ‘Consider previous convictions, or any failure to respond to previous sentences, in assessing seriousness. Courts should identify any convictions relevant for this purpose and then consider to what extent they affect the seriousness of the present offence’.
( A Practice Direction requires the police to provide courts with details of ‘the circumstances of the last three similar convictions, and/or of convictions likely to be of interest to the court, the latter being judged on a case by case basis’. The drift of this Practice Direction and of the Magistrates’ Association guidelines is therefore towards convictions relevant to this offence.)
Some of the appellant cases where the very different nature of the earlier offending has been held to render the record wholly or in part irrelevant are Silver (1982) (conviction for manslaughter, earlier record of traffic offending irrelevant), Williams (1983) (defendant convicted of offence of dishonesty; the court took note of a ‘record of dishonesty’ but regarded an earlier conviction for rape as ‘not material’), Cawser (1980) (convicted of rape; ‘ a man with a bad record; it is, perhaps, fair to say, that there is only one incident in his record of a sexual nature’).
It is a general principle of English law that previous convictions become ‘spent’ after the lapse of time. The provisions of the Rehabilitation of Offenders Act 1974 establish ‘rehabilitation periods’, with the effect that for most purposes a conviction should not be mentioned outside that period. The periods vary according to the sentence imposed- for example, the period is five years where the sentence was a community service order, but the period is unlimited if the sentence was custody for longer than 30 months. Where an offender’s criminal record is produced in criminal proceedings, convictions which are spent should be marked as such, and courts should only take them into account in sentencing or mention them in open court where ‘the interests of justice so require’. These provisions may be seen as an attempt to control the stigma arising from criminal convictions.
Where an offender has a conviction-free gap in his record, prior to the current affence, it is well established that this should reduce the effect which the previous convictions have on sentence. In Fox (1980), for example, the Court of Appeal reduced the sentence on a man aged 35 convicted of grievous bodily harm who had two previous convictions many years earlier: ‘In our judgment, his previous record of violence when he was in his late teens and mid-twenties should have been left out of account in deciding what action to take. Various justifications may be offered for this concession –e.g the offender deserves credit for going straight, or the present offence is to some extent ‘out of character’ in terms of his recent behaviour, or the conviction-free gap makes it less likely that he will reoffend – but it is perhaps less question- begging simply to affirm the underlying principle of the Rehabilitation of Offenders Act. Generally speaking, it would be unnecessarily harsh if a person had to bear the burden of previous convictions indefinitely.
Should the comparative seriousness of previous offences be relevant? In practice it probably is. Courts are likely to attribute greater significance to previous burglaries than to small thefts, although it is unlikely that a court passing sentence for shoplifting would consider a previous conviction for a serious offence of sex, violence or fraud to be relevant. At the level of theory, if the discount for first or relatively inexperienced offenders stems from a recognition of human weakness, it may be argued that minor offences perhaps show a more understandable and acceptable weakness than serious ones. Three principles have been proposed in the foregoing paragraphs-there should be a discount for a conviction-free gap; previous similar offences should in general be given more weight than previous dissimilar crimes; and previous serious offences should generally be given more weight than previous minor crimes. It must be conceded that nay structured guidance which purported to take these principles fully into account would become entangled in impossibly fine distinctions of detail. However, at least on a desert rationale, it is surely proper that the three principles should be proclaimed and , to the extent that no undue complication results, integrated into any guidance on sentencing. A-167
3 Frequency of reoffending:
there are a number of indications that frequency of past offending is relevant in sentence selection. Convictions become spent under the 1974 Act after the relevant ‘rehabilitation period’ has expired. If an offence is committed during the rehabilitation period, the first offence is not lived down until the rehabilitation period for the second offence has ended. Frequent offenders, therefore, have few or no spent convictions. Frequency is a criterion for the imposition of an extended sentence. The existence of a conviction-free-gap prior to the current offence is regarded as a significant mitigating factor (Thomas 1979, pp. 200-202). A recent example is Bleasdale (1984), where Hobhouse J . commented: ‘what has to be said in favour of this appellant is that since serving that sentence (in 1978) he has kept out of trouble. This is an important feature in his favour ..This appellant did make an effort, clearly, and between 1978 and 1982 he succeeded.’
A case combining this factor with the previous one is West (1983), where the defendant was convicted on two counts of assault. The court, while noting West’s ‘indifferent record’, changed a custodial sentence to one of community service on the basis that the last conviction for violence ‘was some nine years ago, when he was in his twenties’.
4 Seriousness of previous offences:
Previous offences which were visited with severe sanctions (custodial sentences of thirty months or more) are never spent under the 1974 Act. All indictable offences committed by the defendant should necessarily appear in his criminal record, but summary convictions contained in local police records may not appear (Walker 1985). Seriousness of past offences is a criterion for the operation of the extended sentence. In Dodsworth (1984) the defendant was convicted of the rape of a girl aged twelve. The fact that the defendant had been convicted of attempted rape in similar circumstances in 1979 was regarded as highly significant, ‘…so plainly this is a man who has to be punished and punished severely and from whom the public is entitled to expect protection for a considerable length of time’.
5. Previous sentences:
full details of previous sentences received should be included in the criminal record, such as the amount of any fine, the duration of any custodial or non-custodial sentence, or number of hours community service and any alteration as the result of an appeal. The date of release from the last custodial sentence is also given. Where the defendant has not previously served a custodial sentence, the sentencer is obliged by statute to satisfy himself that custody is now essential ( Powers of Criminal Courts Act 1973, s20; Criminal Justice Act 1982, s1). The Home Office Circular of 1973 suggests that there are a number of other situations in which previous sentences received by the defendant must be regarded as relevant: (Home Office 1973): ‘ previous offences and sentences which bear on statutory sentencing requirements may need to be cited if the court contemplates a sentence to which one of the requirements is relevant’ some sentences are dependent upon the existence of an earlier decision of a sentencing court (e.g punishment for breach of a conditional order).
Also the court might, for example, find it necessary to cite a finding of guilty of an offence, in a different class from the current offence, in respect of which an offender had been placed on probation but had failed to comply with the requirements of the order, in order to make it understood why the court was not considering a probation order in the current case. Similarly, it may be necessary where the court is considering imposing a custodial sentence to cite a previous sentence of imprisonment, regardless of the nature of the offence.
Previous sentences handed out to a particular offender are sometimes reffered to especially where the offending pattern has continued. In Tremlett (1984) the defendant was convicted of assaulting a bus conductor. The Court of Appeal noted that in Tremlett’s record similar assaults had been punished by way of fine in 1979 and suspended prison sentence in 1980. According to the Court, ‘He does not on this occasion fall to be dealt with for those offences but what has happened in the past indicates strongly that it is high time that this appellant was brought to his senses’. An immediate custodial sentence was imposed. Conversely, where it appears from the defendant’s record that he has complied with earlier sentences, such as conditional orders, a ‘jump’ to a more severe kind of sentence should not be made in the absence of more serious law breaking (Thomas 1979, pp.204-205). Shapland (1981) found that a common ground for mitigation was the beneficial effect upon the defendant which a particular sentence was said to have had in the past.
6.Staleness of previous convictions:
the same circular also provides: ‘it may only rarely be necessary to take into account a single, isolated offence more than, say, ten years (or even five years) previously’.
This appears to be concerned with the staleness of certain offences on a criminal record. The Rehabilitation of Offenders Act 1974, as applied to sentencing by the Practice Direction of 1975, reflects a similar view. A complex set of rehabilitation periods is laid down in the Act, where heavier sentences are tied to longer regabilitation periods. The implications for sentencers of the Circular and the Act taken together seem to be that stale offences are of less significance in the criminal record than recent offences, that minor offences become stale more quickly than serious offences and that offences visited with severe penalties never become stale.
Broadly in line with this is section 16(2) of the Children and Young Persons Act 1963 which provides that in proceedings against a person who has attained the age of twenty one, findings of guilt made against him when he was under the age of fourteen shall be disregarded ‘for the prupose of any evidence of previous convictions’. Oddly, though, such information should still be incorporated in the antecedents.
In Cole (1983), the defendant was aged twenty-seven at the date of conviction. A ‘very ancient conviction as a juvenile…. Can be disregarded for present purposes’. Said the Court of Appeal.
7. Age of defendant when he received previous convictions:
The age of a defendant is often an important consideration in sentencing in England, and can operate as a significant mitigating factor, particularly where it is associated with other factors. Thomas (1979, p.195) suggests that youth continues to have some value as a mitigating factor throughout the early twenties and sometimes as late as thirty. An aspect of this is that if previous convictions were recorded against a defendant at a young age, they may be regarded as less relevant later.
Antecedents generally contain the age of the defendant, and his age at the time of the commission of each earlier offence is evident from the list of previous convictions. Findings of guilt are included but convictions under the age of fourteen are generally so marked. If the defendant was under seventeen when convicted, certain of the rehabilitation periods under the 1974 Act are halved.
8.Previous record as allowing character inference:
Certain offences in a criminal record are regarded as ‘obviously revealing’in some way about the defendant, indicating that there must be ‘something wrong’ and suggesting a particular line of enquiry for the court, or a particular mode of disposal. Examples would be a previous history of offences of arson or sexual offences. An example given by Devlin (1970) indicates that sometimes a criminal record will allow character inferences to be made where the offences contained therein would not otherwise appear particularly relevant to the current conviction: ‘.. some benches have been observed to regard it as highly relevant in some offences of dishonesty that a young offender has a record of the less serious motoring offences as being indicative of a complete disregard for the rules’.
Shapland’s research (Shapland 1981, pp.70-71) shows that mitigation advanced by lawyers on behalf of their clients often refers to previous convictions. Apart from the obvious benefit to the client of a clean or virtually clean record, mitigation was often advanced to try to show the character of the defendant in a better light than at first appeared from a perusal of his previous law-breaking. She says: Previous convictions.. will tend to show that the offender is of little moral worth…Mitigating factors concerned with previous convictions will either assert that, contrary to the virtual offender normally considered by the court, this particular offender has few or no convictions; or that his previous offences were of a minor nature; or as he is not a persistent offender the present offence does not fall into a train of similar offences. In these cases the offender is attempting to adjust the virtual picture of himself painted by the police.
In Loosemore(1980) the Court of Appeal made the general obsernation that a sentencer should deal with the defendant on the basis of his offence and not on the basis of his ‘feckless character and general behaviour’. There are numerous examples, however, where the Court may be seen to drawn an inference as to character from the list of previous convictions. An example is Smith (1982), where it was said to be ‘clear from Smith’s record that he is a man who sees no reason at all why he should not poach if he has the time and the opportunity’. And Bowater and Davies (1980) where the Court inferred from the record that the defendant was a man well acquainted with dishonest methods of dealing in scrap metal.
Perhaps the classic instance of English courts drawing character inferences is in the use of ‘last-chance probation’ in an attempt to break a cycle of repeated offending, where repeated custodial sentencing is perceived by the sentence as ‘ineffective’. Recent examples are Hammond (1982) and Bradley (1983).
Guidance or guidelines?
To what extent are the eight factors identified above capable of being refined and encapsulated in appellate guidance or sentencing guidelines? Traditionally, the Court of Appeal in England has been reluctant, when hearing appeals against sentence, to travel much beyond the instant facts of the case to provide general guidance for sentencers. Recently, however, this has begun to change, with an important series of ‘guideline’ judgments providing more generalized assistance for sentencers on important questions of sentencing policy, such as prison overcrowding, or dealing with particular types of case, such as sentencing in serious drug offences in Aramah (1983). The Court of Appeal has not so far addressed the general issue of interpretation of prior record in a similar way, but in principle it would seem that some ground-rules should be capable of being drawn and indeed must be enunciated if we are to have anything approaching consistent decision making. As the Lord Chief Justice has commented in his seminal speech in Bibi (1980) : ‘We are not aiming at uniformity of sentence; that would be impossible. We are aiming at uniformity of approach’.
To what extent can there be such uniformity of approach in relation to the interpretation of prior record? In order to achieve uniformity, we have to move away from the still prevalent notion in England that sentencing is a matter of intuition, towards the articulation of general rules and relevant exceptions.
The first substantial difficulty is that prior record may be taken account of for one of two very different reasons. It may be looked at in order to provide a basis for some kind of predictive assessment of the defendant’s likely future behaviour or response to sentence, or it may be considered as a dimension of the defendant’s culpability against which his punishment is to be measured. Some of the eight factors identified above primarily reflect the predictive approach, some primarily reflect the culpability approach, but nearly all are capable of reflecting both.
Criminal record and prediction:
Some writers have argued that whenever previous convictions are taken into account by the sentencer, a predictive rationale of sentencing must be operating. Take, for example, Fletcher (1978, p 466): ‘ The contemporary pressure to consider prior convictions in setting the level of the offence and of punishement reflects a theory of social protection rather than a doctrine of deserved punishement . the rule of thumb is that recidivists are more dangerous and that society will be better served if the recidivists are isolated for longer terms’.
Whilst the correctness of this view will be challenged in a moment, it is certainly true to say that previous convictions are more obviously relevant to the sentencer working on a predictive rather than a just deserts basis.
Let us consider the implications of prior record for the predictive approach. To start with, the number of previous convictions recorded against a defendant is generally regarded as being the best available predictor of future offending. The research evidence is that the more convictions recorded against a defendant, the greater the likelihood that he will be reconvicted.
An English research study (Philpotts and Lancucki, 1979) found that 29% of males having no previous convictions who were convicted of standard list offences in January 1971 were reconvicted within six years. The percentage of offenders who had one previous conviction when convicted in January 1971 who were reconvicted within six years was 54%. If they had two to four previous convictions the figure rose to 70% and for those with five or more previous convictions, 87% were reconvicted within six years.
A sentencer working on a predictive rationale would, therefore, require a full and accurate account of the defendant’s previous law breaking. A number of American jurisdictions allow the sentencer to have reference to the defendant’s ‘arrest record’ as well as previous convictions, on the basis that this more clearly establishes a criminal ‘pattern of conduct’, and there is some research evidence that the number of the defendant’s prior arrests was a very important determinant of sentence in pre-guideline America. (Hawkinson 1975).
The predictive sentencer would require information about prior record in order to implement one or more of a variety of approaches. He might well seek to deter or incapacitate the individual offender by a severe sentence, perhaps relatively early in his perceived criminal career, as a ‘nip in the bud’. The severe sentence would be seen as more likely to prevent the offender from continuing his life of crime. Evidence of repetition of similar offending, and frequency of repetition, would inevitably tend to reinforce the predictive sentencer’s view, even though the statistical evidence is that repetition of a particular type of offending in the past is not a particularly good indicator that similar offending will continue in the future.
The English research study referred to above (Philpotts and Lancucki, 1979) also examined the likelihood of reconviction of certain types of offence given the offence with which the offenders in the sample were convicted in January 1971. a person covicted of an offence involving violence, for example, was found to be considerably more likely to be reconvicted of violence than any other offender but the violent offender was still considerably more likely to be reconvicted of a property offence than an offence of violence. Thus for offenders of twenty-one ore over who were convicted of offences of violence in January 1971, 58% were not reconvicted, 15% were first reconvicted for an offence of violence and 27% were first reconvicted for an offence against property.
With regard to the age of the defendant when the previous offences occurred, recent Home Office Research (1985) shows that the earlier a defendant’s first conviction occurs, the more likely he is to be reconvicted. Yet this must be set against the fact that of all males first convicted fefore the age of sixteen, some two-thirds are not reconvicted at all within two years.
The seriousness of previous convictions seems, from the earlier observations from the writers to be regarded as a reason for taking a tougher line on sentencing. Yet the statistical evidence is that, in general, crimes of serious personal violence and sexual molestation are the least likely to be repeated.
The drawing of character inferences from the prior record would seem to be rooted in a predictive rationale. The sentencer is making a ‘diagnosis’, based on what the defendant has done in the past, geared towards his needs and the best perceived way of amending his conduct for the future, such as trying to break into a cycle of offending through ‘last chance probation’. It will be seen from this last example that, exceptionally on the predictive approach, a poor record could form the basis for a lenient sentence in order to pursue some therapeutic objective.
Systematic guidance could in theory be drawn up for sentencers along the lines of statistical prediction of likely reoffending on the basis of past record, in reliance on research such as that outlined above. There is insufficient evidence of his kind available for it to be done now and there are uncertainties and contradictions in the work which has been done, but it could in principle be achieved. Such an exercise would be not dissimilar to the work which has been done in this country and the United States on ‘parole prediction scores’.
In England and Wales the parole prediction score is based upon sixteen variables, including the nature of the offence for which the prisoner was sentenced, the number of his previous convictions, the number of his previous imprisonments, any gap prior to the latest conviction, his age when first found guilty and his age when convicted of the current offence.
There are, however, numerous problems with the predictive approach. Firstly, in the vast majority of predictive studies carried out, whilst criminal record taken together with other predictive factors has been strongly associated with subsequent recidivism, the associateion between each of the variables and future offending has been found to be weak. A high rate of error in prediction almost always occurs, both in failing to identify those who did return to crime and in mistakenly identifying those who did not. Secondly, efforts to improve predictive accuracy involve the collection of information about the offender going far beyond his actual criminal record. In important recent work on predictive sentencing by Greenwood (1982) matters identified as predictors include the defendant’s history of drug use and his employment status, as well as the number of his previous convictions and his age when first convicted. Collection of such ‘soft’ data may well be objected to on grounds of its likely inaccuracy and its invasion of privacy.
Criminal record and ‘Just deserts’
The recent history of sentencing reform in America, the resurgence of the notion of ‘just deserts’ and the introduction of sentencing guidelines in so many states has been fully described elsewhere in this volume. One of the most difficult matters for the just deserts theorists to resolve has been the relevance of the defendant’s previous convictions to the current sentence. Some writers have argued that such a theory cannot support more severe sentences for persistent offenders and that the reasoning employed in taking account of them must be covertly preventive. Most recently, Wilkins (1985) has claimed that it is ‘because we know that prior convictions are prognostic of future criminality that the strict retributive model is, to most persons, unacceptable’. Such criticism has provoked an important response from Andrew von Hirsch, the leading proponent of the just deserts view.
In Doing Justice (von Hirsch, 1976), two main arguments were advanced for taking account of prior record in computing culpability. The first was that ‘A repetition of the offence following …conviction may be regarded as more culpable since persisted in the behaviour after having been forcefully censured for it through his prior punishment’.
The second was an ‘evidentiary’ one that the more often the defendant is convicted and punished, the more sure we can be that he is actually guilty. In a later article (von Hirsch, 1981) he seems not to pursue the latter claim (wisely, perhaps, for it apparently confuses ‘evidence of greater culpability’ with ‘greater culpability’. He does, however, provide the fullest account yet available of the relevance of previous convictions within just deserts theory.
It is argued by von Hirsch that when a person commits some misdeed in everyday life, he may plead that his misconduct was uncharacteristic of his previous behaviour. This plea relates to an inference which is normally drawn from(a) a judgment about the wrongfulness of an act to (b) the disapproval directed at a person. The actor is claiming in mitigation that though this act was wrong he should not suffer full obloquy for it because the act is out of keeping with his customary standards of behaviour. Logically, this plea carries greatest weight when the actor has not committed the misdeed before and it becomes progressively less persuasive with repetition of the wrongdoing. This analysis is then transferred to sentencing.
It is clear that the resultant model is very similar, though drawn in more detail, to the ‘progressive loss of mitigation’ theory, outlined above. It entails that the defendant’s criminal record is not appropriate to justify endless successive increases in penalty, but is primarily a means of achieving sentence reduction for those with clean or nearly clean records.
The clarity of von Hirsch’s model, especially as set out in his 1981 article, provides us with an excellent opportunity to examine the eight factors which were identified above as potentially relevant to prior record in the English sentencing context, to see to what extent they might be compatible with a just deserts sentencing framework.
The first consideration is number of previous convictions. It will be recalled that on the basis of predictive sentencing, number provided the best available indicator of future offending. The greater the number of previous convictions, the greater the risk of reoffending and the more pressing the need for appropriate preventive sentencing.
In ‘Just deserts’ sentencing, however, number is relevant is only a strictly limited way. The defendant is entitled to mitigation for the first few offences, and then the mitigation is exhausted so that the defendant is visited with the full penalty of the law. The obvious question is how many repetitions can occur before the force of the mitigation is lost? Von Hirsch concedes that he has ‘no ready answer’ to this question, being content to suggest ‘a certain limited number of repetitions’. We may, for the purposes of argument, select five. The crucial point is that after those five convictions, reconviction would not attract greater severity. Von Hirsch calls this a ‘closed criminal history score’.
If we take the Minnesota Sentencing guidelines as an example, we see that the defendant is assigned one pint for every felony conviction prior to the current conviction. The guidelines have a closed criminal history score in that after six or more previous convictions, the presumptive sentence in the right hand column of the grid remains unchanged with, for example, twenty four months representing the ‘ceiling’ for an offence in seriousness category.It must be obvious, however, that in taking account of prior record on a just deserts calculus, number cannot be all there is to it.
What of the similarity or otherwise between the current offence and offences appearing in the record? Surely similarity ought to be relevant, for it confirms in the starkest possible manner that such misbehaviour is characteristic of the defendant. Von Hirsch is less forthcoming on this point, but in Doing Justice, he argued that previous convictions might lose some of their significance if they were for crimes ‘sufficiently dissimilar’ to the present one. Of course, the significance of this must depend upon the level of generality at which similarity is identified. Von Hirsch now suggests that the criterion is whether the current act and prior criminal conduct are ‘similar in the basic principles they violate’. In arguing that ‘white collar swindle’ is similar to ‘other frauds’, ‘outright thefts’ and ‘acts of force’, since these all ‘involve willful injury’, it is clear that he identifies similarity at a fairly low level. The effect of this is to decrease the relative importance of similarity in the criminal record and increase the relative importance of number. In the Minnesota guidelines no particular importance is attached to repetition of similar offences. It seems that this may have been for fear of introducing great complexity into the calculation of the criminal history score( von Hirsch 1982, pp.201-202).
What about the staleness of previous convictions? Again, in Doing Justice it was argued that provision should be made ‘for the decay of offenders’ criminal records, with convictions long past being disregarded’. This is because the more distant the conviction the less plausible it is to claim that such acts are characteristic of the defendants’ conduct. The Commission introduced a ‘decay factor’ into the Minnesota guidelines in this respect. Thus prior felony convictions do not count towards the criminal history score if ten years have elapsed sine the date of discharge from or expiration of the sentence, providing that the defendant remained free of conviction during that period.
There is also the question of the seriousness of the previous convictions. According to von Hirsch (1981, p. 620): ..the quality of the record should count. Someone convicted of his first serious crime would be entitled to plead that such gravely reprehensible conduct has been uncharacteristic of him, and hence that he deserves to have his penalty scaled down –even where he has a record of lesser infractions.
Where the current crime is serious, in other words, the criminal history should take into account the gravity of the prior convictions as well as their number.If, on the other hand, the current offense is less serious than some offences which appear on the record, it would seem that the defendant has shown that offending of a nature at least as serious as the current offence is not untypical of him and the argument for mitigation is much less strong. In the Minnesota guidelines relative seriousness is taken into account in computation of criminal history scores, but only to a limited extent. If a previous offence was punished only by way of a fine it will be accorded less weight. If the fine was $100 or less, the conviction does not count at all. Yet the distinction remains crude in that all previous convictions resulting in custodial sentences attract one point, whether the offences were in fact serious or relatively trivial.
Frequency of repetition does not as such form part of von Hirsch’s scheme, though, as we have seen, he advocates giving less weight to older convictions. On the face of it, rapid repetition of offending would seem relevant to desert, as underlining the characteristic nature of the behaviour, and it is perhaps odd that specific provision is not made for it. In the guidelines, adoption of the ‘decay factor’ takes account of it to some extent. The commentary states that ‘a person who was convicted of three felonies within a five-year period is more culpable than one convicted of three felonies within a twenty-year period’. Yet, it is not clear that the ten year ‘decay factor’ for felonies would operate in either of these cases, assuming the convictions to be evenly spaced.
On a just deserts view, the age of the defendant does not qualify as a mitigating factor as such, though it could be relevant indirectly, such as through the issue of degree of participation in the offence( e.g. where a young person was led by experienced offenders into a criminal enterprise). The relevance of the defendants’ age to his culpability is a matter which has not so far been adequately dealt with by the just deserts theorists. It is, however, taken account of in the Minnesota guidelines, where for an offender who is under twenty-one when sentenced, only half a point is ascribed to him for each prior felony conviction occurring after his sixteenth birthday. Previous convictions for less serious offences committed as a juvenile are disregarded. Once the offender attains the age of twenty one, a nominal one point will be left on his record to indicate to the court the existence of convictions as a juvenile. If he has one such prior conviction, the resultant half-point will be disregarded. It is difficult to discern the rationale upon which the Commission proceeded in weighting theses factors.
It is apparent from the just deserts model that what is taken to matter is the legal classification of previous convictions, rather than previous sentences served by the defendant. The emphasis upon convictions seems also to ensure that in ‘just deserts’ theory, in contrast to predictive sentencing, no attention should be given to ‘arrest records’ or alleged but unproven law-breaking. These limitations are reflected in the Minnesota guidelines. On the other hand, as we have seen, the guidelines refer to sentences served rather than to offence seriousness when drawing the fairly crude distinctions in assigning points to take account of seriousness of previous offences.
Recently, walker has criticized von Hirsch’s analysis of the relevance of prior convictions by questioning the implications of the ‘out of character’ plea. He says: the principal defect of his justification, however, is its failure to distinguish clearly between punishing because punishment is deserved and punishing because punishment expresses disapproval. If his argument is to hold water it must be carried to the length of saying that recidivists should be punished not merely to express disapproval of their character but because the sentencer is entitled to punish them for that character. The Court of Appeal sometimes allows evidence of good moral character –such as bravery – to mitigate sentence..but to generalize from this to a policy of sentrencing people for their moral character would be a leap into a bog without boundaries.
If Walker is right in this vividly-expressed criticism, it seems that factor number eight, above, whereby information about prior record can be used by the court in drawing character inferences must be regarded as being within von Hirsch’s theory. Yet this factor must surely be confined to predictive sentencing, having no possible place in just deserts theory. A closer reading of just deserts theory, however, reveals that it does not have the wide implications which Walker claims for it. ‘just deserts’ relates to punishment for the current offence, though if that offence is the first, there is some room for leniency in the way in which it is sentenced. In no sense, therefore, could this amount to ‘sentencing people for their moral character’. As von Hirsch says, it must be a mistake to assume that using prior law-breaking in judging someone’s actions ‘must rest on a whole-life notion of good or bad character’. Perhaps, though, von Hirsch’s use of the words ‘typical’ and ‘characteristic’ to describe the assessment to be made of the defendants’ record in the light of the current offence is unfortunate in tending to suggest an assessment being made of the overall moral standing of the person. It is quite clear from the context of the discussion that this is not what is meant.
It certainly makes prima facie sense of a utilitarian kind to try a more severe measure when a milder one has failed; but retributive purists who want severity to be as proportional as possible to culpability find it hard to see how culpability can be increased by previous offences, however similar. One rather artificial suggestion is that having a clean record should be regarded as a mitigation. It can be made plausible by treating it as a ‘Fletcherian excuse and arguing that the commission of a single offence does not justify the inference that the offender is ‘the sort of person who does that sort of thing’. If so, suggests Ashworth (1992), with each successive conviction there is a ‘progressive loss of mitigation’. One could argue, however, that it takes only one previous similar conviction to rebut any presumption that the offender is not ‘that sort of person’, and that something more plausible is needed to explain the feeling that each successive conviction justifies greater severity. It seems less artificial to say simply that the number of previous convictions is a measure of the offender’s lack of respect for the law. Either way, he is being sentenced for character as well as deed. In this context utility makes more sense than desert.
It also entails, however, that an offender’s sentence should never be increased to a level disproportionate with the seriousness of the current offence simply because of his poor record. Despite the Court of Appeal authority listed above, this principle has never been fully accepted by sentencers who undoubtedly do still tend in practice to regard a list of previous convictions as an aggravating factor and, at least to some extent, to sentence offender ‘on their records’.
Stockdale & Devlin on Sentencing p-110
A sense of proportion: it is obviously for the sentencer to keep a sense of proportion when deciding on the total sentence. It is sometimes said that the totality of the offences or of the criminality must be borne in mind, more often that the totality of the orders of the court must be appropriate. The point arises in practice in defferent ways.
One common way is in the case of a defendant who has committed a number of offences on different occasions, so that consecutive sentences are justified. The individual offences may well justify consecutive sentences of four, three and two years’ imprisonment. No criticism of the three individual sentences may be possible, yet the total of nine years’ imprisonment for that defendant at that stage of his career might nevertheless be found by the Court of Appeal to be excessive, as in Hunter. The same is true when the total sentence for various offences short of murder exceeds that which a murderer might be expected to serve. Lawton, L. J. warned in Holderness:
‘Only too frequently courts which impose these consecutive sentences do not take the step which this Court on numerous occasions has shaid should be taken, namely, of standing back and looking at the overall effect of the sentences which have been passed’.
Sometimes the point arises when a defendant appears for sentence in two court within a short space of time. The second court should not merely consider whether a concurrent sentence rather than a consecutive one would be more appropriate. If deciding in favour of a consecutive sentence, the sentencer should look at the total of the two sentences, and should scale down his own sentence if the total would be excessive. The second sentencer cannot scale down the first sentence, but he can reduce his own so as to arrive at a fair combined sentence.
It seems beyond doubt that while the importance of taking account of the defendant’s previous convictions is universally recognized in English sentencing practice, there is great confusion over the precise relevance of items of information contained in such records. The theory of progressive mitigation, which is akin to just deserts, appears to be gaining prominence in English writings, reflecting the majority of observations of the Court of Appeal. On this view, as we have seen, good record is a matter capable of constituting mitigation but poor record is not an aggravating factor.
Yet one of the leading writers on English sentencing, Nigel walker, while accepting this position in theory, says that ‘it would be more realistic to acknowledge that in practice a record with previous relevant convictions is an aggravating consideration’. A leading practioner, Sheriff Nicholson, says that ‘previous good character is not so much a mitigating factor, but rather an essentially neutral one, whereas previous bad character is certainly an aggravating factor’. An attempt has been made in this chapter to separate out two strands in English sentencing in relation to prior record ‘predictive’ sentencing and ‘just deserts’. It has been argued that these approaches are in tension with each other, often entailing contrary inferences from facts about a defendant’s previous record. So long as English sentencing retains both approaches in this context, its attitude to the relevance of prior convictions is bound to be incoherent.
A powerful case has been made in several of the Chapters of this book for the adoption of guidelines based on just desert into English sentencing practice. As far as the relevance of prior convictions is concerned, the attractions of such an approach are considerable. First, as reflected in the theory of progressive loss of mitigation, it allows us to break with the open-ended approach of increasingly severe sentencing which ultimately bears no relation to the seriousness of the last offence. Secondly, it provides us with an agenda of matters relating to previous convictions which ought to be taken into account in every sentencing decision. While it will be clear from the foregoing discussion that there is still room for debate about which factors should be included, the respective weight to be assigned to each, and the practicability of including them within a workable scheme, the attraction of sentencing guidelines is that they offer us a framework within which sentencers are constrained to a ‘uniformity of approach’. Of course the issues are difficult to resolve, because sentencing is a complex form of decision-making, but the resultant model offers the great attraction of coherence, a quality clearly lacking in current English sentencing practice.
In determining the seriousness of the offence, the sentencer must always take into account any aggravating or mitigating factors which impinge upon the question of offence seriousness. Some of the factors apply across a range of offences. An example of a factor which tends to make an offence more serious is where the offender has committed the offence in breach of trust. This has relevance in theft and deception offences, for example where a senior employee abuses his position of responsibility to embezzle funds or provide an outside team of offenders with a key to the stockroom. It also has relevance in sexual offences, for example where a schoolteacher or a social worker abuses that position of authority to commit a sexual offence on a child. An example of a general factor which tends to make an offence less serious is where there was provocation immediately before the offence. This factor may be relevant in arrange of offences against the person or against public order. There are other factors which are relevant to seriousness in a more restricted range of offending. Thus, if the offence is one involving dishonesty, the court, as well as considering any breach of trust, will also be influenced by matters such as whether the offence was carefully planned or was committed on impulse, the value of the property involved and whether any, or how much, of it has been recovered. If the offence is one of violence, the court will be influenced by the severity of the injuries caused to the victim, the extent to which the victim has recovered, the offender’s intention (or lack of it) to cause serious injury and the nature of the weapon (if any) which was used.
When the sentencer is determining the seriousness of the offence, he obliged by s.81 (4) to ‘take into account all such information as is available to him about the circumstances of the offence (including any aggravating or mitigating factors’). This must be done whenever the sentencer is considering the imposition of a custodial sentence (s. 81 (4) or a community sentence (s 36 (1). It should be noted that the language of the Act in this respect is mandatory, and imposes a duty upon the sentencer to give proper weight to factors relevant to offence seriousness. In addition, and by contrast, s.158 (1) states that nothing shall prevent the court having regard to any other matters in mitigation which are personal to the offender.
Aggravation as increased seriousness:
It is not difficult to think of a handful of aggravating factors which are well established in English sentencing practice: offences by groups or gangs; offences against young, elderly or otherwise vulnerable victims; offences involving the abuse of trust or authority; racially motivated offences; and offences involving planning or organization. How do these possible justifications relate to the theory of proportionality? In relation to each of them, is the conduct more harmful, or are the offenders more culpable?
General culpability is probably the answer where an offender commits a crime against a vulnerable victim: there is a widely shared view that it is worse to take advantage of a relatively helpless person, and so the offender is more culpable if aware that the victim is specially vulnerable (eg old, very young, disabled, etc). Decisions on violence against young children emphasise their helplessness as a prominent reason for aggravating the sentence in these cases. Martin Wasik, examining these justifications, has argued that there is not only greater culpability but also greater harm. Research in the 1980s suggested that the factor most strongly associated with the use of immediate custody, and with longer custodial sentences, in the Crown Court was ‘elderly victim’. Offenders who select or ‘target’ elderly victims can expect their sentence to be increased substantially (eg ten years’ imprisonment for successive burglaries of houses occupied by elderly people) and where an offender must have been aware that the victim was elderly this is also treated as aggravating.
Elements of both greater harm and greater culpability may be found in cases involving a racial element, as the Court of Appeal has held in two strong judgments that confirmed racial motivation as an aggravating factor. The Crime and Disorder Act 1998 has since introduced racially aggravated forms of wounding and assault (s 29), criminal damage (s 30), public order offences (s 31) and harassment (s32). These create a sentencing problem, since, in order to conform to existing conventions, Parliament increased the sentences for the different offences by different proportions- for example, the maximum for common assault rises from six months to two years if racially aggravated (a fourfold increase), whereas the maximum for a s20 wounding or a s 47 assault ri