27.4 Sentencing

Sentencing is a structured exercise, not a hunch. A newly qualified solicitor must be able to take an offence, place it on the relevant guideline, adjust for aggravation and mitigation, apply guilty-plea credit and totality, and then choose a lawful type of sentence. The Sentencing Code (Sentencing Act 2020) is the statute book. The Sentencing Council's offence-specific and overarching guidelines are the working method. Youth sentencing uses additional guidelines and is covered in the next section; this section is the adult structure the FLK lists under Sentencing, including Newton hearings.

Role of sentencing guidelines

Section 59 of the Sentencing Code requires every court, when sentencing an offender, to follow any sentencing guidelines that are relevant to the case unless the court is satisfied that it would be contrary to the interests of justice to do so. The same duty applies when the court exercises other sentencing functions. "Follow" means work the steps: determine the offence category by culpability and harm, identify the starting point and category range, adjust for aggravating and mitigating factors, then apply reduction for a guilty plea, totality, ancillary orders, and the duty to give reasons.

Offence-specific guidelines (for example assault, burglary, or supply of drugs) sit with overarching guidelines: imposition of community and custodial sentences; reduction in sentence for a guilty plea; totality; and domestic abuse, among others. If there is no offence-specific guideline, the court uses the General guideline: overarching principles, and analogous offences. A solicitor who invites the court to "go outside the range" because the client is sorry, without identifying a true interests-of-justice reason, is not applying section 59. A genuine reason might be an exceptional combination of facts the guideline did not contemplate, not mere disagreement with the starting point.

Magistrates in 2026 can impose up to 12 months' custody for a single either-way offence. Summary-only maxima remain as statute provides, commonly six months. If the magistrates' powers are insufficient, they commit to the Crown Court for sentence. The Crown Court works to the statutory maximum for the offence.

Determining seriousness: aggravating and mitigating factors

Seriousness is culpability plus harm. Culpability asks how planned, targeted, or reckless the offending was, and what role the offender played. Harm asks what injury, loss, or risk was caused or intended. Category tables in each guideline convert those findings into a starting point.

Statutory aggravating factors must be treated as such when they are present. They include previous convictions, having regard to nature, relevance, and recency; the offence having been committed while on bail; and hostility based on race, religion, disability, sexual orientation, or transgender identity. Other statutory aggravation can include a terrorist connection or an assault on an emergency worker. The court must not double-count a factor that has already built the category.

Non-statutory aggravation often includes location (offending in the victim's home), presence of children, abuse of trust, attempts to conceal evidence, and high value or lasting psychological harm where not already in the harm assessment. Mitigation includes no previous convictions or no relevant ones, genuine remorse, age and immaturity, mental health conditions falling short of a defence, sole caring responsibilities, delay not caused by the offender, and steps toward reparation. Personal mitigation can reduce the sentence even for a high-harm offence; it rarely turns a grave offence into a discharge on its own.

The guilty-plea guideline then reduces the sentence to reflect when the plea was indicated: one-third at the first stage of proceedings, one-quarter after that date is set, down to one-tenth on the first day of trial, with little or nothing after the trial has begun. Credit is applied after the court has arrived at a sentence that reflects seriousness.

Concurrent and consecutive sentences

When the court sentences for more than one offence, it must apply the totality guideline. The overall sentence must be just and proportionate to the offending as a whole.

Concurrent sentences usually fit offences that arise out of the same incident or are so closely related that they form a single piece of criminality: an assault and a public-order offence in the same fight; a burglary and the criminal damage caused on entry. Consecutive sentences usually fit distinct incidents, different victims on different occasions, or an offence committed while on bail for another matter, always subject to totality. A solicitor who asks for consecutive terms on every count on an indictment will overshoot; a solicitor who asks for concurrent terms on a six-month crime spree will undershoot.

The court may also use a combination: consecutive terms that are then adjusted down so that the aggregate is proportionate, or a lead sentence that is increased to reflect associated offences with concurrent terms on the others. Time spent on qualifying curfew or in custody on remand is credited. The court should say, in ordinary language, whether terms are concurrent or consecutive and why the total is just.

Mitigation and the plea in mitigation

After conviction or a guilty plea, the defence delivers a plea in mitigation. It is not a second trial. It accepts the verdict or plea and explains what the court should do next. Structure it. Identify the guideline category the court should adopt and why. Confront statutory aggravation honestly. Then develop personal mitigation with evidence: references, medical reports, proof of employment, caring responsibilities, and any treatment already begun. If a pre-sentence report has been prepared, engage with it; do not ignore a risk assessment that is against you.

Mitigation includes inviting a different type of sentence, not only a shorter one: a community order instead of custody where the custody threshold is passed but immediate custody is not necessary; a fine or discharge where the community threshold is not passed. Ancillary orders — compensation, surcharge, disqualification, restraining orders, forfeiture — must be anticipated. Compensation has priority over a fine where the offender cannot pay both. Never tell the court the client is remorseful if the client has just given evidence calling the complainant a liar; the bench heard it.

Types of sentence: custodial, suspended, and community orders

The Imposition guideline and the Sentencing Code thresholds control type of sentence.

A court that passes custody must explain why the threshold is met. A court that suspends must have first decided that a custodial term of the right length is required. Suspension is not a third threshold below community orders. Factors pointing to suspension include a realistic prospect of rehabilitation, strong personal mitigation, and immediate custody causing significant harm to others. Factors pointing the other way include a history of poor compliance, a risk or danger to the public, and cases where only immediate custody is adequate punishment. Community-order requirements must be compatible with each other and with work, disability, and caring duties. Unpaid work is 40 to 300 hours. A curfew must be electronically monitored unless it is not available or the court considers it inappropriate.

Newton hearings: applicability and procedure

From September 2026 the FLK spells out Newton hearings: applicability and procedure. The leading case is R v Newton. The situation is a guilty plea with a dispute about the facts on which sentence should be passed.

Applicability. A Newton hearing is required only if the dispute would make a material difference to sentence. If the defendant's basis would not change category, starting point, or type of sentence, the court may sentence on the agreed or undisputed facts without a hearing. A Newton hearing is not a way to run a defence that is inconsistent with the plea. If the defendant's account amounts to a defence (for example, "I pleaded guilty to assault but it was self-defence"), the plea is problematic and may need to be vacated. Classic Newton issues are: whether a weapon was used; whether the assault was sustained or a single blow; the quantity of drugs; the defendant's role in a joint enterprise; or whether the victim was kicked on the ground.

If the defendant's account is absurd and obviously untrue, the court may reject it without hearing evidence. That power is used sparingly. If the prosecution is content to sentence on the defence basis, there is no hearing. If the prosecution does not accept the basis and the difference matters, the court should hold a hearing rather than "split the difference."

Procedure. The defendant should tender a written basis of plea. The prosecution marks it accepted or not. The court decides whether the difference is material. If a hearing is needed, it is a trial of the disputed facts, usually before the sentencing judge or magistrates, without a jury. The prosecution calls evidence and must make the court sure of any aggravating version it wants the court to adopt. The defendant may give evidence and call witnesses but does not have to. The Criminal Procedure Rules and Criminal Practice Directions govern evidence, advance notice, and reasons. After findings, the court sentences on the facts it has found and then applies guilty-plea credit.

Credit consequences. If the defendant's account is rejected, the reduction that would have been available at the stage the plea was indicated is normally halved. If witnesses are called, the court may reduce credit further. That is why a hopeless Newton hearing is not a free hit. If the prosecution fails to prove the aggravating version, the court sentences on the defence basis and full plea credit remains. Solicitors should advise in writing: what is in issue, what evidence exists, the criminal standard, and the credit risk. A Newton hearing can take place in the magistrates' court or the Crown Court. It is not confined to long trials; a single disputed kick can justify one.