- Commission of offence whilst under the influence of alcohol or drugs.
The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.
This applies regardless of whether the offender is under the influence of legal or illegal substance(s).
In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.
An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.
- Offence was committed as part of a group.
The mere membership of a group (two or more persons) should not be used to increase the sentence, but where the offence was committed as part of a group this will normally make it more serious because:
- the harm caused (both physical or psychological) or the potential for harm may be greater and/or
- the culpability of the offender may be higher (the role of the offender within the group will be a relevant consideration).
Culpability based on role in group offending could range from:
- higher culpability indicated by a leading role in the group and/or the involvement by the offender of others through coercion, intimidation or exploitation, to
- lower culpability indicated by a lesser or subordinate role under direction and/or involvement of the offender through coercion, intimidation or exploitation.
Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation (including as a result of domestic abuse, trafficking or modern slavery) which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.
Where the offending is part of an organised criminal network, this will make it more serious, and the role of the offender in the organisation will also be relevant.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of group offending.
- Offence involved use or threat of a weapon.
A ‘weapon’ can take many forms.
The use or production of a weapon has relevance:
- to the culpability of the offender where it indicates planning or intention to cause harm; and
- to the harm caused (both physical or psychological) or the potential for harm.
Relevant considerations will include:
- the dangerousness of the weapon;
- whether the offender brought the weapon to the scene, or just used what was available on impulse;
- whether the offender made or adapted something for use as a weapon;
- the context in which the weapon was threatened, used or produced.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when assessing the relevance of this factor to culpability.
Evidence of planning normally indicates a higher level of intention and pre-meditation which increases the level of culpability.
Planning may be inferred from the scale and sophistication of the offending and/or the role of the offender.
The greater the degree of planning the greater the culpability
- Commission of the offence for financial gain.
Where an offence (which is not one which by its nature is an acquisitive offence) has been committed wholly or in part for financial gain or the avoidance of cost, this will increase the seriousness.
Where the offending is committed in a commercial context for financial gain or the avoidance of costs, this will normally indicate a higher level of culpability.
Examples would include, but are not limited to, dealing in unlawful goods, failing to disclose relevant matters to an authority or regulator, failing to comply with a regulation or failing to obtain the necessary licence or permission in order to avoid costs.
Offending of this type can undermine legitimate businesses.
See the guidance on fines if considering a financial penalty.
- High level of profit from the offence.
A high level of profit is likely to indicate:
- High culpability in terms of planning; and
- a high level of harm in terms of loss caused to victims or the undermining of legitimate businesses.
In most situations a high level of gain will be a factor taken into account at step one – care should be taken to avoid double counting.
See the guidance on fines if considering a financial penalty.
- Abuse of trust or dominant position.
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.
- Restraint, detention or additional degradation of the victim.
Where an offender deliberately causes additional harm to a victim over and above that which is an essential element of the offence - this will increase seriousness. Examples may include, but are not limited to, posts of images on social media designed to cause additional distress to the victim.
Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
An offence is more serious if the victim is vulnerable because of personal circumstances such as (but not limited to) age, illness or disability (unless the vulnerability of the victim is an element of the offence).
Other factors such as the victim being isolated, incapacitated through drink or being in an unfamiliar situation may lead to a court considering that the offence is more serious.
The extent to which any vulnerability may impact on the sentence is a matter for the court to weigh up in each case.
Culpability will be increased if the offender targeted a victim because of an actual or perceived vulnerability.
Culpability will be increased if the victim is made vulnerable by the actions of the offender (such as a victim who has been intimidated or isolated by the offender).
Culpability is increased if an offender persisted in the offending once it was obvious that the victim was vulnerable (for example continuing to attack an injured victim).
The level of harm (physical, psychological or financial) is likely to be increased if the victim is vulnerable.
- Victim was providing a public service or performing a public duty at the time of the offence.
This reflects:
- the fact that people in public facing roles are more exposed to the possibility of harm and consequently more vulnerable and/or
- the fact that someone is working in the public interest merits the additional protection of the courts.
This applies whether the victim is a public or private employee or acting in a voluntary capacity.
Care should be taken to avoid double counting where the statutory aggravating factor relating to emergency workers or to those providing a public service, performing a public duty or providing services to the public applies.
- Other(s) put at risk of harm by the offending.
Where there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious.
Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does.
Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
- Offence committed in the presence of other(s) (especially children).
This reflects the psychological harm that may be caused to those who witnessed the offence.
The presence of one or more children may in some situations make the primary victim more vulnerable – for example an adult may be less able to resist the offender if concerned about the safety or welfare of children present.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
- Actions after the event including but not limited to attempts to cover up/conceal evidence.
The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.
Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.
- Blame wrongly placed on other(s).
Where the investigation has been hindered and/or other(s) have suffered as a result of being wrongly blamed by the offender, this will make the offence more serious.
This factor will not be engaged where an offender has simply exercised his or her right not to assist the investigation or accept responsibility for the offending.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.
- Failure to respond to warnings or concerns expressed by others about the offender’s behaviour.
Where an offender has had the benefit of warnings or advice about their conduct but has failed to heed it, this would make the offender more blameworthy.
This may particularly be the case when:
- such warning(s) or advice were of an official nature or from a professional source; and/or
- the warning(s) were made at the time of or shortly before the commission of the offence.
- When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
- Offence committed on licence or while subject to court order(s).
An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
Commission of an offence while subject to a relevant court order makes the offence more serious.
The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality.
Care should be taken to avoid double counting matters taken into account when considering previous convictions.
When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.
- Offence committed in custody.
Offences committed in custody are more serious because they undermine the fundamental need for control and order which is necessary for the running of prisons and maintaining safety.
Generally the sentence for the new offence will be consecutive to the sentence being served as it will have arisen out of an unrelated incident. The court must have regard to the totality of the offender’s criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. Refer to the Totality guideline for detailed guidance.
Care should be taken to avoid double counting matters taken into account when considering previous convictions.
- Offences taken into consideration.
Taken from the Offences Taken into Consideration Definitive Guideline:
General principles
When sentencing an offender who requests offences to be taken into consideration (TICs), courts should pass a total sentence which reflects all the offending behaviour. The sentence must be just and proportionate and must not exceed the statutory maximum for the conviction offence.
Offences to be Taken into Consideration
The court has discretion as to whether or not to take TICs into account. In exercising its discretion the court should take into account that TICs are capable of reflecting the offender's overall criminality. The court is likely to consider that the fact that the offender has assisted the police (particularly if the offences would not otherwise have been detected) and avoided the need for further proceedings demonstrates a genuine determination by the offender to ‘wipe the slate clean’.
It is generally undesirable for TICs to be accepted in the following circumstances:
- where the TIC is likely to attract a greater sentence than the conviction offence;
- where it is in the public interest that the TIC should be the subject of a separate charge;
- where the offender would avoid a prohibition, ancillary order or similar consequence which it would have been desirable to impose on conviction. For example:
- where the TIC attracts mandatory disqualification or endorsement and the offence(s) for which the defendant is to be sentenced do not;
- where the TIC constitutes a breach of an earlier sentence;
- where the TIC is a specified offence for the purposes of section 306 of the Sentencing Code, but the conviction offence is non-specified; or
- where the TIC is not founded on the same facts or evidence or part of a series of offences of the same or similar character (unless the court is satisfied that it is in the interests of justice to do so).
Jurisdiction
The magistrates' court cannot take into consideration an indictable only offence.
The Crown Court can take into account summary only offences provided the TICs are founded on the same facts or evidence as the indictable charge, or are part of a series of offences of the same or similar character as the indictable conviction offence.
Procedural safeguards
A court should generally only take offences into consideration if the following procedural provisions have been satisfied:
- the police or prosecuting authorities have prepared a schedule of offences (TIC schedule) that they consider suitable to be taken into consideration. The TIC schedule should set out the nature of each offence, the date of the offence(s), relevant detail about the offence(s) (including, for example, monetary values of items) and any other brief details that the court should be aware of;
- a copy of the TIC schedule must be provided to the defendant and his representative (if he has one) before the sentence hearing. The defendant should sign the TIC schedule to provisionally admit the offences;
- at the sentence hearing, the court should ask the defendant in open court whether he admits each of the offences on the TIC schedule and whether he wishes to have them taken into consideration;
- if there is any doubt about the admission of a particular offence, it should not be accepted as a TIC. Special care should be taken with vulnerable and/or unrepresented defendants;
- if the defendant is committed to the Crown Court for sentence, this procedure must take place again at the Crown Court even if the defendant has agreed to the schedule in the magistrates' court.
Application
The sentence imposed on an offender should, in most circumstances, be increased to reflect the fact that other offences have been taken into consideration. The court should:
- Determine the sentencing starting point for the conviction offence, referring to the relevant definitive sentencing guidelines. No regard should be had to the presence of TICs at this stage.
- Consider whether there are any aggravating or mitigating factors that justify an upward or downward adjustment from the starting point.
The presence of TICs should generally be treated as an aggravating feature that justifies an adjustment from the starting point. Where there is a large number of TICs, it may be appropriate to move outside the category range, although this must be considered in the context of the case and subject to the principle of totality. The court is limited to the statutory maximum for the conviction offence.
Continue through the sentencing process including:
- consider whether the frank admission of a number of offences is an indication of a defendant's remorse or determination and/ or demonstration of steps taken to address addiction or offending behaviour;
- any reduction for a guilty plea should be applied to the overall sentence;
- the principle of totality;
- when considering ancillary orders these can be considered in relation to any or all of the TICs, specifically:
- compensation orders;
- restitution orders.
- Offence committed in a domestic context.
Refer to the Overarching Principles: Domestic Abuse Definitive Guideline
- Offence committed in a terrorist context.
Where there is a terrorist element to the offence, refer also to the Terrorism Offences Definitive Guideline
- Location and/or timing of offence.
In general, an offence is not made more serious by the location and/or timing of the offence except in ways taken into account by other factors in this guideline (such as planning, vulnerable victim, offence committed in a domestic context, maximising distress to victim, others put at risk of harm by the offending, offence committed in the presence of others). Care should be taken to avoid double counting.
Courts should be cautious about aggravating an offence by reason of it being committed for example at night, or in broad daylight, in a crowded place or in an isolated place unless it also indicates increased harm or culpability not already accounted for.
An offence may be more serious when it is committed in places in which there is a particular need for discipline or safety such as prisons, courts, schools or hospitals.
- Established evidence of community/wider impact.
This factor should increase the sentence only where there is clear evidence of wider harm not already taken into account elsewhere. A community impact statement will assist the court in assessing the level of impact.
Sentencing levels in offence specific guidelines take account of collective social harm. Accordingly offenders should normally be sentenced by straightforward application of the guidelines without aggravation for the fact that their activity contributed to a harmful social effect upon a neighbourhood or community.
It is not open to a sentencer to increase a sentence for prevalence in ordinary circumstances or in response to a personal view that there is 'too much of this sort of thing going on in this area'.
First, there must be evidence provided to the court by a responsible body or by a senior police officer.
Secondly, that evidence must be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations about that material can be made.
Even if such material is provided, a sentencer will only be entitled to treat prevalence as an aggravating factor if satisfied:
- that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels);
- that the circumstances can properly be described as exceptional; and
- that it is just and proportionate to increase the sentence for such a factor in the particular case being sentenced.
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