Sentencing of repeat offenders

Joe Ryan

Background

When an offender is sentenced, there is a statutory requirement that the court treat any previous convictions as an aggravating factor, providing it considers that it is reasonable to do so. The court will consider the nature of the offence and its relevance to the current offence and how recently the offender was convicted of the previous offence. The presence of an aggravating factor can increase the severity of a sentence.

Section 65 of the Sentencing Act 2020 states that:

(2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to—

(a) the nature of the offence to which the relevant previous conviction relates and its relevance to the current offence, and

(b) the time that has elapsed since the relevant previous conviction.

Sentencing Council guidelines

This is reflected in the guidelines produced by the Sentencing Council. The Sentencing Council is an independent, non-departmental public body. It issues guidelines on sentencing, which the courts must follow unless it is in the interests of justice not to do so.

Previous convictions are considered at step two in the Council’s offence-specific guidelines, at the point that sentencers adjust the sentence to take account of any aggravating or mitigating factors. The guidance on previous convictions indicates how this information is used by the court when determining the degree to which previous convictions should aggravate a sentence:

The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
Previous convictions are normally relevant to the current offence when they are of a similar type.
Previous convictions of a type different from the current offence may be relevant where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are less relevant to the offender’s culpability for the current offence and less likely to be predictive of future offending.
Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence.

Minimum sentences

Sections 313-315 of the Sentencing Act 2020 require courts to impose minimum sentences for specific repeat offences where certain conditions are met. These include:

7 years custody for a third class A drug trafficking offence
3 years custody for a third domestic burglary offence
A minimum custodial sentence fora repeat offence involving a weapon,bladed article or corrosive substance

The 2020 Act requires the court to pass a custodial sentence of at least the specified length unless the court finds there are “particular” circumstances relating to any of the offences or to the offender that would make it unjust to do so.The Police, Crime, Sentencing and Courts Act 2022 amended these provisions to require “exceptional,” rather than “particular,” circumstances to justify not imposing the relevant minimum sentence. The relevant provisions of the 2022 Act will come into force from 28 June 2022.