More Sentencing

When someone is convicted after trial it is often necessary to order pre-sentence reports, usually because the court is considering a community penalty or prison. That will commonly take three weeks to prepare. It has always been the practice for at least one of the trial bench to sit on the eventual sentencing hearing, because they will have heard all the nuances of the evidence and will have a full understanding of the offence. In recent times some Justices' Clerks have expressed the opinion that this is not necessary, but few magistrates agree, and there has been some debate on the Mags' Association web forum (sorry, it's private and passworded) which suggests that most JPs support the status quo. Under the 2003 Act we have to fill in a pro-forma for probation to give them an idea of how we feel about the offence and of the sentence we have in mind. The form is a simple tick-box exercise and asks us to indicate low/medium/high for community penalties, or "so serious" for prison. The trouble with this is that if we indicate a community penalty the subsequent bench has its hands tied as a legitimate expectation has been created that the defendant will not be sent inside. As a result, unless the offence has a community sentence written all over it, we tick the custody box as you can always come down-tariff but you can't go up. These forms are fairly new (interestingly our District Judges won't use them) and we are often boxed in by a convicting bench having excluded custody when the offence may well merit it.

A few months ago I sat on a trial in which we convicted a man of threatening behaviour against two public servants who were on duty at the time. It was a nasty incident, and caused real fear to the two victims, and we indicated a high community penalty (the man was middle aged and had no previous convictions, so custody would not be appropriate). I made sure that the case was adjourned to a day when I was sitting. I outlined the case to my two colleagues before we read the reports. The probation officer's analysis of the offence bore next to no relation to what had really happened and she seemed to have accepted the defendant's story uncritically. Part of the aggravation was that he had walked away from his victims and then returned a few minutes later to have another go. This fact he omitted to mention in the interview. The upshot was that the report recommended a fine - way too low for the offence, especially in view of the fact that there was no credit for a guilty plea. Had I not been there a bench coming fresh to it would probably have fined him as per the report.

So we gave him 250 hours unpaid work, and ordered compensation to the victims and costs to the prosecution totalling about £600. I shall carry on coming back to deal with sentences whenever I can, because we are more likely to see justice done that way.