Aggravation and mitigation

CHAPTER 5 Aggravation and mitigation 5.1 Some preliminary problems of principle The concepts of aggravation and mitigation have tended to attract little close exam- ination or theoretical discussion. Perhaps this is because the factors recognized as aggravating or mitigating are thought to be uncomplicated or uncontroversial, or (in the terminology of the English judiciary) ‘well known’ and ‘well established’. However, it will be argued in this chapter that many of them raise contentious issues. These issues assume particular importance now for three particular reasons: r several aggravating factors and one mitigating factor are statutory requirements under the Criminal Justice Act 2003, as we shall see; r s. 166 of the 2003 Act reaffirms that the various statutory thresholds for imposing custodial sentences and community sentences should not be read as ‘prevent[ing] a court from mitigating an offender’s sentence by taking into account such matters as, in the opinion of the court, are relevant in mitigation of sentence’; and r s. 174(2) of the 2003 Act requires the court in any case to ‘mention any aggravating or mitigating factors which the court has regarded as being of particular importance’. For these three reasons, the analysis of the justifications for particular aggravating and mitigating factors becomes a more pressing task than may hitherto have been supposed. Moreover, the sentencing research by Hough, Jacobson and Millie shows that it was chiefly the influence of personal mitigating factors that often made the difference between a community sentence and a custodial sentence in cases ‘on the cusp’. 1 The restatement in s. 166 of the power to mitigate sentence is broadly framed, and immediately it raises the question whether justifications for taking account of some personal mitigating factors may be found outside the fundamental rationale of sentencing – which, as argued in Chapters 3 and 4,isthat the sentence should be proportionate to the seriousness of the offence. This would not necessarily be illogical: it was argued in Chapter 3.4 above that it is possible to defend a sentencing system which has a primary rationale and which then allows certain other rationales 1Hough et al. (2003), pp. 39–43. 151 152 Aggravation and mitigation to have priority in respect of certain types of crime or types of offender. The key requirement is that the justifications be strong and specific. Similarly, the notion that all aggravating and mitigating factors ought necessarily to be linked to the primary rationale must be rejected as too astringent a view, particularly in the context of a branch of the law so closely entwined with social policy and so politically sensitive as sentencing. It would be odd and probably inconsistent if the central core of aggravating and mitigating factors were not linked to the primary rationale, but there is no reason why additional factors should not be recognized. Everything depends on careful examination of the justifications for these factors. One reason why the main aggravating and mitigating factors should be related to the primary rationale is that their status as such might be purely adventitious. One legal system may have distinct offences of robbery and armed robbery, the latter defined so as to penalize robbery involving the use or threatened use of a gun. Another, such as England and Wales, might have a single offence of robbery, and might treat theuseorthreateneduse ofagunas an aggravating factor. Similarly, some countries have separate offences of theft, graded according to the amount stolen or perhaps the position held by the person stealing, whereas English law treats such factors as aggravating factors in a single offence of theft. It may therefore be a matter of legislative tradition whether such factors are part of the definition of the crime or are left to sentencing, but it should make no difference to the arguments needed to justify the factor as aggravating. The definitions of offences should in general be coherent with the primary rationale of sentencing, 2 and the same should apply to factors which could readily be treated as elements in the definitions of offences. A further preliminary question concerns the practical relationship between aggravating and mitigating factors. It is often right to suppose that the opposite of a mitigating factor will count as aggravating (e.g. impulsive reactions may justify mitigation and premeditation may be aggravating), and this applies particularly where the two factors can be represented as extreme points on a spectrum. How- ever, there may be other circumstances in which the absence of a mitigating factor should not count as aggravating. There has been some debate in England about the implications of the sentencing ‘discount’ for pleading guilty: clearly, a person who pleads not guilty and is convicted cannot receive this discount, and so the sentence will be higher than for someone who pleaded guilty to a similar offence. But does that mean that pleading not guilty and putting the prosecution to proof is an aggra- vating factor? Pleading not guilty certainly has a potential cost that pleading guilty does not have; but in principle the person who is convicted after a not guilty plea should receive the normal sentence, not an aggravated sentence. In essence, there- fore, there are three forms of response to factors in each case – aggravating, neutral and mitigating. These may simply represent points on a spectrum (e.g. between impulsivity and premeditation). But where the factor relates to the presence or absence of a single element (e.g. pleading guilty or not guilty), there is a question 2For a sophisticated discussion of these issues, see Jareborg (1988). 5.2 Aggravation as increased seriousness 153 as to how they should be characterized. The wrong approach is to assume that the opposite or negative of a mitigating factor is necessarily aggravating; it might be neutral, as demonstrated by the theory of the discount for a guilty plea. Similarly, it is widely accepted to be an aggravating factor if the offence is committed against an elderly or a very young victim, but it would be absurd to claim mitigation on the basis that the victim was aged between, say, 20 and 50. That is simply a neutral factor. 5.2 Aggravation as increased seriousness 5.2.1 Statutory aggravating factors English law now requires courts to treat certain factors as aggravating. The Criminal Justice Act 2003 sets out four such factors. The first – previous convictions for relevant and recent offences – will be discussed fully in Chapter 6.3 below. The other three – offence committed on bail; racial or religious aggravation; aggravation related to disability or sexual orientation – will be discussed here. 1. Offence committed on bail. S. 143(3) of the Criminal Justice Act 2003 states that ‘in considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor’. This restates a principle recognized for some years, 3 but what is its justification? The fact that the offence was committed during a period when the offender was on bail does not increase the harm caused by the offence, nor does it increase the culpability of the offender in relation to that crime. Presumably the argument is that it constitutes an act of defiance of the court, or a breach of the trust placed in the offender by releasing him on bail pending the hearing of his case, or at least demonstrates that he has failed to heed the element of official censure implicit in the commencement of proceedings against him. 4 Since it is also aprinciple that the sentence for an offence committed on bail should be consecutive to the sentence for the original offence, 5 the aggravating effect of this factor ought to be relatively small. The consecutive principle will increase the sentence anyway, and the argument that aggravating the sentence is likely to have an additional deterrent effect is as unsubstantiated as most claims about deterrence. 6 2. Racial or religious aggravation. The Crime and Disorder Act 1998 introduced racially aggravated forms of wounding and assault (s. 29), criminal damage (s. 30), public order offences (s. 31) and harassment (s. 32). There is also a more general provision, now re-enacted as s. 145(2) of the Criminal Justice Act 2003, that ‘if an offence was racially or religiously aggravated, the court must treat that fact as an aggravating factor, and must state in open court that the offence was so 3Itissubstantially a re-enactment of s. 151 PCCS Act 2000 and s. 29(2) of the CJA 1991. 4There is, of course, room for argument about whether the bringing of a prosecution can be said to imply censure at that stage (see Ashworth and Redmayne (2005), ch. 8); and the analysis may depend on whether D intends to plead guilty or to contest guilt. 5 See ch. 8.2.3 below. 6 See ch. 3.3.2 above. 154 Aggravation and mitigation aggravated’. The definition of ‘racially aggravated’ is given in s. 28 of the 1998 Act, and includes conduct that is either racially motivated or involves the offender demonstrating towards the victim ‘hostility based on the victim’s membership (or presumed membership) of a racial group’. A parallel definition now applies to ‘religious aggravation’. 7 When the specific racially aggravated offenceswereenacted in 1998, they createda sentencing problem, since, in order to conform to existing conventions, Parliament increased the sentences for the different offences by different proportions – for example, the maximum for common assault rose from six months to two years if racially aggravated (a fourfold increase), whereas the maximum for a s. 20 wounding or a s. 47 assault rose from five to seven years if racially aggravated (an increase of under a half). Moreover, it was clear from the statutory scheme that, if the offence of conviction is one that has a racially or religiously aggravated version, of which the offender has not been convicted, it would be wrong for the court to take account of any racial or religious element so as to aggravate the sentence. These were prominent factors in leading the Sentencing Advisory Panel to propose guidelines for racially aggravated offences in 2000. 8 The Panel, noting the legislative intent of identifying racial crimes so as to mark them out for specific condemnation, proposed a scheme of enhancements to deal with this type of case. The Court of Appeal considered the Panel’s advice in Kelly and Donnelly (2001), 9 and accepted it in part. It accepted the proposal that courts should first state what the sentence would be without the racial (or religious) element, and then state the sentence including that element. As Rose LJ commented, ‘this will lead to transparency in sentencing, which will be of benefit to the public and, indeed, to this Court if subsequently the sentence passed is the subject of challenge’. 10 The Panel had gone on to propose that the enhancement should normally be between 40 and 70 per cent of the sentence for the basic offence, but the Court of Appeal preferred to leave it to the judge to consider the appropriate overall sentence without any such guideline. One feature of the Panel’s advice is always to identify factors that make an offence (or, in this instance, racial or religious aggravation) more or less serious. The Court of Appeal agreed with the Panel’s proposed factors, which included among the aggravating factors a pattern of racist conduct, membership of aracist group, deliberate humiliation of the victim and repeated or prolonged expressions of racial hostility. Two factors that might make the behaviour less serious were identified as the relative brevity of the racist conduct, and cases where there was no evidence of racial motivation and any racial abuse was minor or incidental. The same considerations now apply to religious aggravation. Increasing sentences for these reasons may be seen as generally justified on the ground of reaffirming and enhancing social values of toleration and respect for 7Its origin may be found in s. 39 of the Anti-Terrorism, Crime and Security Act 2001. 8 SAP, Racially Aggravated Offences: Advice to the Court of Appeal (2000). 9 [2001] 2 Cr App R (S) 341. 10 Ibid., at p. 347. The Court thus reversed what it had held in the earlier decision in Saunders [2000] 2CrAppR(S)71. 5.2 Aggravation as increased seriousness 155 the variety of racial and religious groups, and more specifically as marking the humiliating effect on victims that such conduct often has. Whether or not Parlia- ment was right to enact a handful of specific racially and religiously aggravated offences, the general principle of aggravation of sentence on such grounds is surely correct, and one that coheres with the principle of proportionality in sentencing. The approach laid down in Kelly and Donnelly for racially and religiously aggravated offences should be applied more widely, so that, wherever a sentence is increased to take account of racial or religious aggravation, the court should both state this and identify the enhancement added for this reason. 3. Aggravation related to disability or sexual orientation.S.146 of the 2003 Act introduces a new statutory aggravating factor, similar in its wording to that appli- cable to racially and religiously aggravated cases. Courts are required to treat as aggravated offences in which the offender was wholly or partly motivated by, or has demonstrated hostility based on, either the sexual orientation or presumed sexual orientation of the victim, or a disability or presumed disability of the victim. Thus where male homosexuals are singled out for assault, or where during the course of an attack an offender makes a homophobic remark, courts ‘must treat’ that fact as aggravating the offence and ‘must state in open court that the offence was committed in such circumstances’. 11 Presumably courts should approach the task of sentencing such cases in a manner consistent with the guidelines in Kelly and Donnelly on racial aggravation. There is a difference in the statutory framework, since there are no specific offences that have a version with a higher maximum penalty for aggravation related to disability or sexual orientation, but the general principle – and the justifications for it – are surely the same. 5.2.2 General aggravating factors recognized in definitive guidelines In its guideline Overarching Principles: Seriousness, the Sentencing Guidelines Council set out a number of general aggravating factors, or ‘factors indicating higher culpability’. The list is not intended to be exhaustive, and it includes the statutory aggravating factors already mentioned, but it may be useful to draw attention to the other factors: planning of an offence intention to commit more serious harm than actually resulted from the offence offenders operating in groups or gangs commission of the offence for financial gain (where this is not inherent in the offence itself) high level of profit from the offence attempt to conceal or dispose of evidence failure to respond to warnings or concerns expressed by others about the offender’s behaviour offence committed whilst on licence offence motivated by hostility towards a minority group, or members of it 11 The words of s. 146(3) of the 2003 Act. 156 Aggravation and mitigation deliberate targeting of vulnerable victim(s) commission of an offence while under the influence of alcohol or drugs use of a weapon to frighten or injure the victim deliberate and gratuitous violence or damage to property, over and abovewhat is needed to carry out the offence abuse of power abuse of position of trust 12 The Council’s assumption is that these factors indicate greater culpability, and are therefore compatible with the principle of proportionality. We may consider whether this is right, examining at least some of the factors listed. 13 Greater culpability is probably the answer where an offender commits a crime against a vulnerable victim: there is a widely shared view that it is worse to take advantage of a relatively helpless person, and so the offender is more culpable if aware that the victim is specially vulnerable (e.g. old, very young, disabled, etc.). Thus in Attorney General’s Reference Nos. 38 and 39 of 2004 (Randall and Donaghue) (2005) 14 the Court of Appeal regarded the robbery as particularly heinous because the offenders had targeted the home of a man whom they knew to have learning disabilities. In O’Brien (2002), 15 Dhad tricked his way into the house of a woman of 81 by pretending to be an employee of a water company, and had then stolen £200, a watch and a mobile phone. He had a record of committing similar offences, and the judge sentenced him to nine years’ imprisonment – very high on the scale for burglary, especially when the amount involved was so low. 16 The Court of Appeal reduced the sentence slightly to eight years on the ground that the original sentence did not adequately reflect the guilty plea, but the Court stated that the offender’s speciality is vulnerable elderly people. He tricks them into allowing him into their homes and he steals their property. He serves his prison sentences and then very soon thereafter resumes his similar criminal activities. This type of burglary casts a shadow on the lives of elderly people: they begin to dread the unexpected knock on the front door. The Court agreed with the sentencing judge’s comment that ‘society rightly reserves its deepest censure for those who prey on vulnerable groups such as the elderly’. This same point is evident in several other appellate decisions. 17 Decisions on violence against young children also emphasize their helplessness as a prominent reason for aggravating the sentence in these cases. 18 Martin Wasik, examining the relevant justifications, has argued that there is not only greater culpability but there 12 SGC, Overarching Principles: Seriousness, para. 1.22. 13 Several similar factors are recognized in Swedish sentencing law: see von Hirsch and Jareborg (1989). 14 [2005] 1 Cr App R (S) 267. 15 [2002] 2 Cr App R (S) 560. 16 See ch. 4.4.10 above. 17 E.g. Attorney General’s Reference No. 108 of 2001 (Tullius) [2002] 2 Cr App R (S) 294 (snatching bag from woman of 88, causing her to fall and suffer serious injury); McDonnell [2003] 2 Cr App R (S) 117 (distraction burglaries and robberies at homes of elderly people); Marcus [2004] 1 Cr AppR(S) 258 (robbery and wounding of two elderly people in their home). 18 E.g. Boswell (1982) 4 Cr App R (S) 317. 5.2 Aggravation as increased seriousness 157 may also be greater harm in these cases – and the quotation from O’Brien suggests that the harm may be to older people generally, not just to the victims in the particular case. However, it remains for discussion whether the aggravating effect of selecting an elderly victim should be as great as it appears to be in some cases, such as O’Brien,where it might be said that the aggravating factor seems more important to sentence than the underlying offence. Research in the 1980s suggested that having an elderly victim was the factor most strongly associated with the use of immediate custody, and with longer custodial sentences, in the Crown Court. 19 Where an offence is committed by two or more people, the justification for aggravating the sentence probably lies in the greater harm which it is believed to involve – although the Council’s guideline suggests that ‘offenders operating in groups or gangs’ increases the culpability element. That may be so where a group of people come together in order ‘by weight of numbers to pursue a common and unlawful purpose’. 20 However, in other cases where two or more offenders confront a victim, a significant factor is that the victim is likely to be in greater fear and to feel a greater sense of helplessness. The element of additional fear in such circumstances has been emphasized in several public order cases such as Rogers- Hinks (1989), 21 involving violence among football supporters travelling on a North Sea ferry. The offenders themselves may not generally understand or consider this factor, but it is something of which they ought to be aware. Another argument leading to aggravation in these cases might be that group pressure to continue may make such offences less likely to be abandoned, and that group dynamics may lead to greater harm or damage being caused. 22 Some group offences may be described as ‘organized crime’, when teams or systems operate so as to maximize profit. Whether they are charged as conspiracy or not, the courts treat even the organized theft of moderate sums as particularly serious where there is evidence of organization or selection of vulnerable victims. 23 Sentencers should, however, draw a distinction between the ringleader and fringe participants, 24 as the guideline itself affirms. Elements of planning or organization may also be present in crimes committed by individuals. A person who plans a crime is generally more culpable, because the offence is premeditated and the offender is therefore more fully confirmed in his anti-social motivation than someone who acts on impulse. (An exception to this is where the planning is directed at minimizing the harmful results of the offence.) Planned lawbreaking constitutesa great threat to society, since it betokens a considered attack on social values, with greater commitment and perhaps continuity than a spontaneous crime. 25 19 Moxon (1988), p. 9; see also p. 31. 20 Caird et al. (1970) 54 Cr App R 499, per Sachs LJ at p. 507. 21 (1989) 11 Cr App R (S) 234. 22 E.g. Lord Lane CJ in Pilgrim (1983) 5 Cr App R (S) 140, ‘mob violence feeds upon itself ’. 23 Cf. Freeman (1989) 11 Cr App R (S) 398, discussed in ch. 4.4.12 above, with Masagh (1990) 12 Cr AppR(S) 568. 24 As emphasized in decisions such as Keys and Sween (1986) 8 Cr App R (S) 444, and Chapman [1999] 2 Cr App R (S) 374. 25 For fuller discussion of this point, see ch. 4.5 above. 158 Aggravation and mitigation The guideline is also justified in regarding a failure to respond to warnings by others as an aggravating factor. This may evidence a callous indifference to the consequences of one’s actions, a factor that has emerged in various different types of offence. Thus, where the offender has caused death by dangerous driving, it is an established aggravating factor that he ignored warnings or pleas from passengers to slow down. 26 Similarly, in relation to breaches of health and safety laws, ‘inactivity in the face of previous incidents and previous complaints’ was regarded as aggravating the seriousness of the offences. 27 Where breach of trust or abuse of authority is an element in the crime, the force of aggravation comes more from the social context of the offence. The crime may be unplanned, committed by an individual and not involving any violence or threats. But trust is fundamental to many social relationships, as argued in Chapter 4.4.11 above, and one of the burdens of trust or authority is an undertaking of incorruptibility. As the Court of Appeal stated in a case involving a stockbroker, breaches of trust ‘undermine public confidence, because the matters of financial dealing with which this man was involved cannot be carried out unless confidence is reposed in those who carry out these transactions on behalf of members of the public’. 28 The same applies to offences committed by police officers, as the Court of Appeal recently stated: It is critical that the public retain full confidence in our police force. A feature of the trust that must exist is that the public can expect that they will not be assaulted by officers even if they are being a nuisance. Any erosion of that basic but reasonable expectation will do profound harm to the good relationship that must exist between the public and the police service. 29 The courts’ reasoning has sometimes been based on deterrence: people in posi- tions of trust or authority will inevitably have great temptation placed before them, and the law must match this with strong sentences for succumbing. But that is adoubtful argument in itself, since there will usually be other disastrous conse- quences of being caught offending in such a position (loss of job, loss of pension and other rights, inability to find comparable employment) which will render a strong sentence less necessary on deterrent reasoning. The fundamental impor- tance of networks of trust and authority for the smooth operation of society is surely sufficient explanation of the additional harm. A recent survey suggests that breach of trust is now the factor most strongly associated with the imposition of custodial sentences in the Crown Court. 30 26 As reaffirmed in the guideline decision of Cooksley [2004] 1 Cr App R (S) 1 at p. 12 (‘disregard of warnings from fellow passengers’). 27 FirthVickers Centrispinning Ltd [1998] 1 Cr App R (S) 293. 28 Per Stephen Brown LJ in Dawson (1987) 9 Cr App R (S) 248. See also the quotation from Cox in ch. 4.4.11 above. 29 Dunn [2003] 2 Cr App R (S) 535 at p. 540. See also Nazir [2003] 2 Cr App R (S) 671, and, for an offence by a prison officer, Mills [2005] 1 Cr App R (S) 180. 30 Flood-Page and Mackie (1998), p. 11. 5.2 Aggravation as increased seriousness 159 It may be worth considering at this point the claims of a connected factor that is not included in the Guideline list but which is often thought to be aggravating – that the offence was committed against a public official. Should an attack on a police officer be regarded as more grave than an attack on an ordinary citizen? One answer is that police officers are expected to place themselves in vulnerable positions sometimes, as part of their job, and that people who take advantage of this commit a worse offence. Probably this line of argument could be connected with that in the previous paragraph: society needs people to undertake policing and other positions of authority, and a person who knowingly attacks such an official is striking against a fundamental institution in a way that one who attacks a private citizen is not. Because of its great social significance, it should be regarded as more serious. Thus in Attorney General’s Reference No. 35 of 1995 (Hartley) Lord Taylor CJ made it clear that the use of violence against a police officer ‘who was merely acting in the exercise of his duty’ was an aggravated offence; 31 the Court of Appeal also increased the sentence in Attorney General’s Reference No. 99 of 2003 (Vidler) for similar reasons. 32 From this brief consideration of general aggravating factors, it is evident that the courts have not always tended to justify them in terms of their effect in increasing the seriousness of the offence. Instead, courts have often adopted the terminology of deterrence, probably without reflecting on the different rationales of sentencing. It is true that in a carefully constructed theory of deterrence the concept of proportion- ality is important, since Bentham devoted a whole chapter to it and included such injunctions as ‘venture more against a great offence than a small one’. 33 However, the suggestion here is that each of the above factors is rightly regarded as increasing the seriousness of offences, although the foundations of the ‘breach of trust’ factor may be thought rather nebulous. 5.2.3 Specific aggravating factors The number of aggravating factors specific to individual offences is enormous, and no purpose would be served by enumerating them here. Examples may readily be found in the various guideline judgments: thus in Cooksley (2004) 34 the Court set out aggravating factors for the offence of causing death by dangerous driving, including a number of specific factors such as ‘driving when knowingly deprived of adequate sleep or rest’; in McInerney and Keating (2003) 35 the Court followed the Sentencing Advisory Panel in listing high-level aggravating factors and medium- level aggravating factors in burglary, and among the latter was the fact that the victim was at home when the offence was committed; and in Oliver and Hartrey (2003) 36 the specific aggravating factors included the fact that indecent photographs of children had themselves been shown to children. 31 [1996] 1 Cr App R (S) 413 at p. 415. 32 [2005] 1 Cr App R (S) 150. 33 Bentham (1789), ch. XIV, rule 2. 34 [2004] 1 Cr App R (S) 1 at p. 12. 35 [2003] 2 Cr App R (S) 240 at p. 252. 36 [2003] 2 Cr App R (S) 64 at p. 73. 160 Aggravation and mitigation The identification of specific aggravating factors was also a feature of earlier guideline judgments laid down by the Court of Appeal. Thus, in Stewart (1987), 37 where Lord Lane CJ laid down guidelines for sentencing in cases of frauds relat- ing to social security and other state benefits, the aggravating factors identified were (i) where the frauds were committed over a lengthy period; (ii) where the fraud began by deliberate deception rather than by omission; (iii) where the money was spent on unnecessary luxuries (rather than essential supplies); and, of course, (iv) where the fraud was a carefully organized operation. That last factor is gen- eral, and factors (i) and (ii) clearly relate to the particular type of offence. Factor (iii) seems to concern events after the commission of the offence(s), but in reality its significance is probably related to culpability and motivation: a person motivated to commit the offence out of greed should not receive the mitigation which the desperately poor person should. The latter may have a more or less weak version of the defence of necessity, but it is arguable that the absence of such a claim should be neutral rather than aggravating, unless avarice and covetousness are to qualify as general aggravating factors. Nothing more will be said about aggravating factors at this stage. By and large, those which have been discussed can be related to the seriousness of the offence, in termsofeither culpability or harmfulness, but the discussion of crimes involving abuse of authority shows that the concept of harmfulness may have wider social dimensions than appear at first sight. This and other theoretical issues will be pursued after the mitigating factors have been discussed. 5.3 Mitigation as diminished seriousness The factors which have been recognized as mitigating sentences in England are a much more heterogeneous collection than the aggravating factors. There is only one statutory mitigating factor that courts are required to take into account, the plea of guilty, and that is independent of the seriousness of the offence (see part 5.4.1 below). Apart from that, there is merely the permissive s. 166(1) of the Criminal Justice Act 2003, stating that the statutory thresholds for imposing custody or a community sentence should not prevent a court from mitigating a sentence by taking account of ‘any such matters as, in the opinion of the court, are relevant in mitigation of sentence’. In this chapter, personal mitigating factors will be left for discussion in part 5.4 below, and here the focus will be on mitigating factors that reduce the seriousness of an offence. The distinction between general mitigating factors and those relevant only to particular types of offence will be adopted again, and it will be observed that some reflect the reduced harmfulness of the offence, and many more reflect the diminished culpability of the offender. 37 (1987) 9 Cr App R (S) 135 at p. 139. [...]... (1998), pp 91–2 83 The exception is the category of theft and handling, and this is perhaps because many of those who are caught red-handed (e.g on CCTV or with the goods in their possession) do not contest their guilt and have previous convictions, whereas first offenders may contest a higher proportion of cases 169 170 Aggravation and mitigation and the probability of receiving a custodial sentence.84... the offender, it is a windfall 5.5 Mitigation and aggravation in practice This exploration of the sources of mitigation and aggravation has not been exhaustive and has touched upon only some of the many problems they present in sentencing What has emerged clearly, however, is the great power of aggravating and mitigating factors Thus the research by Hough, Jacobson and Millie shows that mitigating factors... an early guilty plea and an unprompted confession 171 172 Aggravation and mitigation review of the justices’ decision, accepting that ‘the very special facts’ of the offence and of his reaction to committing it were sufficient reasons for the sentence It greatly assists both the police and the victim to have a report and a full confession without the need for much investigation, and this assistance should... calculations of judges and magistrates in England They have a tendency to retreat behind the ‘no two cases are the same’ argument, and to fail to recognize that there are issues of principle to be resolved 5.6 Aggravation and mitigation in theory Diverse reasons for recognizing particular aggravating and mitigating factors have been considered in this chapter In principle, aggravating and mitigating factors... 28.5 29.9 34.0 Theft and handling stolen goods Other theft or unauthorised taking Handling stolen goods Theft from the person of another Theft by an employee Theft from shops All theft and handling stolen goods 91 90 91 89 94 92 55 50 61 42 61 59 (59) 45 58 (63) 34 51 12.8 11.9 12.7 14.1 7.1 11.5 22.2 18.7 16.7 17.3 8.1 17.2 Fraud and forgery Other forgery Other fraud All fraud and forgery 90 88 88... above 104 Flood-Page and Mackie (1998), pp 85–6 175 176 Aggravation and mitigation the professional classes and against ‘common thieves’ who would be either unemployed or working in jobs where a criminal record is no barrier It would surely be wrong to support a principle which institutionalized discrimination between employed and unemployed offenders.105 A more secure basis for mitigation is found... (2002), para 5.34 177 178 Aggravation and mitigation and Olliver (1989),118 where two brothers convicted of moderately serious offences of violence received suspended sentences and fines, rather than immediate imprisonment, largely on the basis that the livelihoods of some 23 employees in their carpentry business depended on their continued liberty This, surely, is not a matter of mitigation of sentence... by Thomas (1979) p 372 and by Wasik (1983) p 456 46 See Ashworth (1975), Horder (1989), and on the theory von Hirsch and Jareborg (1988) 47 Looseley [2001] 1 WLR 2060 48 E.g Chalcraft and Campbell [2002] 2 Cr App R (S) 172 49 As in some cases of violence against young children: e.g post-natal depression in Isaac [1998] 1 Cr App R (S) 266 5.4 Personal mitigation 5.4 Personal mitigation Research shows... possibility 84 Flood-Page and Mackie (1998), p 90; this contrasts with the findings of Moxon (1988), p 32, and Hood (1992), pp 87, 191–2, both of whom found a clear effect 85 X v United Kingdom (1972) 3 DR 10 at p 16; a Commission decision of such antiquity has no great authority, and the issue would need to be argued afresh 86 Zander and Henderson (1993), pp 138–42; McConville and Bridges (1993) 87 Royal... United States, see Zeisel and Diamond (1977) 125 Ranyard, Hebenton and Pease (1994), pp 208, 216 126 See the discussion in ch 1.6 above 5.6 Aggravation and mitigation in theory English decisions Thus we saw in part 5.2.2 above that, where the victim is elderly or disabled, the sentence may be far higher than the offence would normally attract – to the extent that the age and vulnerability of the victim . CHAPTER 5 Aggravation and mitigation 5.1 Some preliminary problems of principle The concepts of aggravation and mitigation have tended to. below, part 5.4.5.41McInerney and Keating [2003] 2 Cr App R (S) 240 at p. 253. 162 Aggravation and mitigation easily led and less controlled in their behaviour.