Culpability is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning.

• The court should balance these factors to reach a fair assessment of the offender’s overall culpability in all the circumstances of the case and the offender.
• The mere presence of a factor that is inherent in the offence should not be used in assessing culpability.
• Deliberate or gratuitous violence or damage to property, over and above what is needed to carry out the offence will normally indicate a higher level of culpability.
• For offences where there is no requirement for the offender to have any level of intention, recklessness, negligence, dishonesty, knowledge, understanding or foresight for the offence to be made out, the range of culpability may be inferred from the circumstances of the offence as follows:

• For offences that require some level of culpability (eg intention, recklessness or knowledge) to be made out, the range of culpability will be narrower. Relevant factors may typically include but are not limited to:

• These models of assessing culpability will not be applicable to all offences.

Abuse of Trust

A close examination of the facts is necessary and a clear justification should be given if abuse of trust is to be found.

In order for an abuse of trust to make an offence more serious the relationship between the offender and victim(s) must be one that would give rise to the offender having a significant level of responsibility towards the victim(s) on which the victim(s) would be entitled to rely.

Abuse of trust may occur in many factual situations. Examples may include relationships such as teacher and pupil, parent and child, employer and employee, professional adviser and client, or carer (whether paid or unpaid) and dependant. It may also include ad hoc situations such as a late-night taxi driver and a lone passenger. These examples are not exhaustive and do not necessarily indicate that abuse of trust is present.

Additionally an offence may be made more serious where an offender has abused their position to facilitate and/or conceal offending. 

Where an offender has been given an inappropriate level of responsibility, abuse of trust is unlikely to apply.