Sentencing for serious crime, most often sexual assault and unlawful killing, frequently provokes controversy where it may appears sentences lack consistency.
But, consistency in sentencing is elusive. The elements to be considered vary widely from the nature of the crime, its impact on the victim, the circumstances of the perpetrator, including age and state of health, whether this was a first offence, and the presence or lack of remorse. Only the judge hearing the case and submissions on the appropriate sentence is in a position to calculate what it should be.
In the UK judicial independence in sentencing has been combined with sentencing guidelines, drawn up by a Sentencing Council made up of eight judges and six qualified lay people. Judges retain discretion in sentencing, but the guidelines outline on a single-page form, to be filled in during the hearing, all the aggravating and mitigating factors. The form is then sent on to the council for analysis.
No such guidelines exist here and there is little judicial appetite for them. However, an innovative project chaired by Mr Justice Peter Charleton is collating information on all sentences passed in the courts involving serious crime. This is intended to give judges around the country information on sentencing trends to promote consistency, while preserving their discretion to take all relevant circumstances into account. The sentencing reports are also available to the public on a website and the research, to date, shows a considerable degree of consistency in sentencing for similar crimes.
This should go some way to reassuring the public. However, if exceptions, like the imposition of suspended sentences for sexual assault such as occurred last year, continue to occur, confidence in this project will be undermined. Minister for Justice Alan Shatter has argued mandatory sentences are not the answer to controversial sentences. True. But if sentences that appear to depart from the expected norm continue to be imposed, the case for sentencing guidelines will be difficult to counter.