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The Benefits of Community Sentencing

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

A recent consultation paper has revealed the Government is planning changes to current sentencing guidelines for certain robbery offences. Those offences considered “low-level” could now be punished by community sentences rather than imprisonment. The issues fuelling such reform include high re-offending rates and overflowing prisons. In light of these problems, community sentences are designed to aid the rehabilitation of criminals, whilst saving valuable prison space for those guilty of more serious crimes.

The current law governing robbery is set out in s.8 of the Theft Act 1968, which states:

A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

The current sentencing guidelines governing robbery only mention community orders with regards to young offenders. To be classified as a young offender, the perpetrator must be aged 17 or younger. In these instances, imprisonment is viewed as a last resort and so community orders or similar sanctions are more common. The starting point for an adult offender is a 12-month prison sentence, and the maximum sentence available is life imprisonment, depending on a number of factors including whether the perpetrator was a member of a gang, if he or she carried firearms, and the seriousness of the harm caused to the victim.

In October 2014, the Sentencing Council published a consultation paper entitled ‘Robbery Guideline’. It proposes that those convicted of street robbery could face a community sentence if their actions inflicted the lowest level of harm. Culpability and level of harm is judged with reference to, for example, any acts of coercion and intimidation, any use of force, and whether the robbery was pre-planned. Community sentences are only available for those with ‘lesser culpability’ and the lowest ‘level of harm’ subsequently inflicted.

Should the perpetrator be classified as a low-level robber, with the lowest level of culpability, the starting point for sentencing is one year’s custody. The judge will then take into consideration mitigating factors such as previous convictions, the vulnerability of the victim, and the value of the goods in question. The category range available to the judge for low-level robberies is between high-level community orders, and two years’ custody. All other levels of street robbery are to be dealt solely with custodial sentences.

Annex D of the consultation paper outlines the different levels of community sentences available at the time of sentencing. The guidelines propose that low-level harm street robbers could be liable for a high level community order. This could entail 150-300 hours of unpaid work, activity requirement up to the maximum of 60 days, or an exclusion order lasting in the region of 12 months.

The proposal comes in the light of several issues facing the criminal justice system. One of the most prevalent is that of overflowing prisons. It is no secret that the UK is working to increase prison capacity, to accommodate for the increasing prison population. However, it is debatable whether this demonstrates increasing criminal activity within the UK, or whether the UK is simply combatting crime ineffectively. In the Ministry of Justice’s 2013 report, ‘Story of the Prison Population: 1993 – 2012: England and Wales’, a conclusion is drawn as to the cause of the increase:

Two factors caused the increase in the prison population of England and Wales from 1993 to 2012: tougher sentencing and enforcement outcomes, and a more serious mix of offence groups coming before the courts.

The latter would suggest a sociological change within the UK, and the former would suggest the UK’s method of dealing with this change, is to blame. Perhaps the tougher sentencing is aimed to be a deterrent towards the ‘more serious mix of offence groups’. On the other hand, the over reliance on custodial sentences could be the cause of the increase in crime. In this “the chicken or the egg” scenario, deterrence is evidently ineffective.

The purpose of the criminal law is a hazy subject. Punishment seems to be an obvious answer, and a prison sentence is undoubtedly a punishment. It is, after all, a deprivation of liberty. Nevertheless, many offenders have referred to prison life as being more appealing than their own private life. This is especially evident in instances of young offenders, where they are provided with a multitude of activities and technology which they would otherwise not have access to.  

Another primary aim of the criminal law is to protect the public from the wrongdoers in society. The re-offending rates surely demonstrate a procedural failure in this regard also. Prison sentences may protect the public whilst the offender is imprisoned, but this is by no means a permanent solution. The Ministry of Justice’s ‘2013 Compendium of re-offending statistics and analysis’ sheds some light on this issue. The one year proven re-offending rates for those given immediate custodial sentences of less than 12 months was found to be 62.5% in 2013. On the other hand, the re-offending rate for those given community sentences was 56.2%. With prison populations the way they are, this 6.4% difference cannot be ignored.

Advantages of community sentences are multitude. The offenders are often undertaking extremely valuable activities such as the upkeep of local areas, and could thus be considered to be ‘paying back’ a debt to society. This could also be beneficial to the offender, as it could instil a sense of social responsibility and pride. In addition to community sentences, offenders may have the opportunity to undertake training programmes and schemes with the aim of developing valuable employment skills. Access to community sentences and rehabilitation, as opposed to a purely custodial sentence, has been proven to reduce the risk of reoffending. They are offered a choice as to the life they wish to pursue. Crime is not the only alternative. In his first speech as Justice Secretary, June 2010, Kenneth Clarke QC MP stated that:

It is virtually impossible to do anything productive with offenders on short sentences. And in the short time they are in prison many end up losing their jobs, their homes and their families.

He therefore suggests that it is far more constructive to offer community services. This is an opinion I strongly agree with. An offender with a home life and prospect of employment is likely to be far more beneficial to society than one who leaves custody with nothing.

Of course there are critics of the community order approach. The Prison Reform Trust reminds us that a community sentence may not always take into consideration the harm felt by the victim. The gravity of harm suffered by a victim of robbery is extremely substantial. Whether or not a community order is considered a punitive approach with regards to tackling crime will certainly be questioned by the victim. Nevertheless, the consultation paper in question does refer greatly to both the physical and psychological harm suffered by the victim. Whenever harm is discussed, the consultation paper states ‘physical and/or psychological harm caused to the victim’, as opposed to purely physical harm. It is thus extremely unlikely a community sentence would be granted, should the harm in question be considered even remotely severe.

On balance the proposal seems a positive step. Prison populations are increasingly reaching capacity and UK nationals may not feel they are in an ideal financial situation of late, especially with regards to welfare cuts, so for those who do turn to crime, for whatever reason, it might be appropriate to remind them of their social responsibilities. The community will benefit from both the unpaid work and the likely subsequent reduction in re-offending rates. The perpetrator will receive long-term benefit through the skills developed in the sentence, and the lack of interference in their private life. Lastly, with regards to the victim, a community order is not a “weak option”. If I were to stop an individual in the street and ask if they could possibly complete 300 hours unpaid work, I can only imagine the response I would get. Community sentences should indeed be viewed as a constructive solution to the shortcomings of the criminal justice system.

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Tagged: Criminal Law

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