Sentencing - Types of sentences: custodial, suspended, and community orders

Learning Outcomes

After studying this article, you will be able to explain the legal requirements and practical application of custodial sentences, suspended sentences, and community orders under the Sentencing Code 2020. You will understand the custody threshold, the factors influencing sentence choice, and the consequences of breach. You will also be able to apply these principles to SQE1-style scenarios and identify key statutory and guideline considerations for each sentence type.

SQE1 Syllabus

For SQE1, you are required to understand the main types of sentences available to the courts and the legal rules governing their imposition. In your revision, focus on:

• the custody threshold and when a custodial sentence is appropriate
• the requirements and operation of suspended sentences
• the structure and requirements of community orders
• how courts decide between these sentence types
• the consequences of breach for each sentence
• the role of aggravating and mitigating factors in sentencing decisions

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What statutory test must a court apply before imposing a custodial sentence?
2. Can a court suspend any length of custodial sentence? What are the statutory limits?
3. Name three possible requirements that may be attached to a community order.
4. What happens if an offender breaches a suspended sentence order?

Introduction

Sentencing in England and Wales is governed by the Sentencing Code 2020. Courts must select the most appropriate sentence from a range of options, including custodial sentences, suspended sentences, and community orders. Each type of sentence has specific legal requirements and practical consequences. Understanding these options is essential for advising clients and for SQE1 assessment.

Custodial Sentences

A custodial sentence is the most severe penalty available to the courts, involving immediate imprisonment. However, the law requires that custody is used only as a last resort.

Key Term: custodial sentence A sentence requiring the offender to serve a period of imprisonment, usually in a prison or young offender institution.

The Custody Threshold

Before imposing a custodial sentence, the court must be satisfied that the offence is so serious that neither a fine nor a community order can be justified.

Key Term: custody threshold The legal test requiring that only offences of such seriousness warrant a custodial sentence, as set out in s 230 Sentencing Code 2020.

Courts must consider the seriousness of the offence, including the offender’s culpability and the harm caused or intended. Only if no other sentence is appropriate may custody be imposed.

Assessing Seriousness

The court must evaluate:

• Culpability (intent, planning, role)
• Harm (actual, intended, or risked)
• Aggravating factors (e.g., previous convictions, offence on bail)
• Mitigating factors (e.g., remorse, age, lack of prior record)

Sentence Length

The maximum sentence depends on the offence and the court’s powers:

• Summary offences: up to 6 months’ imprisonment
• Either-way offences: up to 12 months in the magistrates’ court, longer in the Crown Court
• Indictable offences: up to the statutory maximum (including life for the most serious offences)

Worked Example 1.1

A defendant is convicted of a violent assault. The court finds the offence serious but notes the defendant has no previous convictions and acted under provocation. Should custody be imposed?

Answer: The court must apply the custody threshold. If the seriousness can be reflected by a community order, custody should not be imposed. The lack of previous convictions and provocation are mitigating factors. Unless the offence is so serious that only custody is justified, a community order should be considered.

The Totality Principle

When sentencing for multiple offences, the court must ensure the total sentence is just and proportionate.

Key Term: totality principle The requirement that the overall sentence for multiple offences is fair and not excessive, considering all offending behaviour together.

Suspended Sentences

A suspended sentence allows the court to impose a custodial sentence but delay its activation, giving the offender a chance to avoid prison by complying with conditions.

Key Term: suspended sentence A custodial sentence that is not activated immediately, but is suspended for a set period, subject to compliance with requirements.

Statutory Limits and Requirements

A court may suspend a custodial sentence of between 14 days and 2 years (Sentencing Code 2020, s 189). The court sets an operational period (up to 2 years) during which the sentence is suspended.

The court must:

• Be satisfied the custody threshold is met
• Decide that suspension is appropriate in the circumstances
• Attach one or more requirements (e.g., unpaid work, rehabilitation)

Conditions and Breach

During the operational period, the offender must not commit further offences and must comply with any requirements. If breached, the court may activate the custodial sentence, activate part of it, or impose additional requirements.

Factors for Suspension

Courts consider:

• Realistic prospect of rehabilitation
• Strong personal mitigation (e.g., caring responsibilities)
• Impact of immediate custody on others
• Whether custody is necessary for punishment

Worked Example 1.2

A defendant receives a 6-month custodial sentence for theft. The court finds the defendant is the sole carer for a young child and has started rehabilitation. Can the sentence be suspended?

Answer: Yes, if the custody threshold is met and the sentence is between 14 days and 2 years, the court may suspend the sentence if there is strong mitigation and a realistic prospect of rehabilitation. The court should attach appropriate requirements.

Community Orders

Community orders provide a flexible alternative to custody, allowing offenders to be punished and rehabilitated in the community.

Key Term: community order A sentence requiring the offender to comply with one or more requirements in the community, rather than serving a custodial sentence.

Requirements

A community order may include one or more of the following (Sentencing Code 2020, s 201):

• Unpaid work (40–300 hours)
• Rehabilitation activity
• Curfew
• Exclusion from specified places
• Prohibited activity
• Mental health, drug, or alcohol treatment (with consent)
• Residence requirement

The court must tailor the requirements to the seriousness of the offence and the offender’s needs.

Threshold for Community Orders

A community order may be imposed if the offence is serious enough to justify more than a fine, but not so serious as to require custody.

Breach of Community Orders

If the offender breaches a requirement, the court may:

• Amend the order to make it more onerous
• Fine the offender
• Revoke the order and resentence, including imposing custody if the original offence justified it

Worked Example 1.3

A defendant is convicted of a low-level drug offence. The court considers a community order with a drug rehabilitation requirement. What must the court ensure?

Answer: The court must ensure the offence is serious enough for a community order, the requirement is suitable for the offender, and the offender consents to treatment. The order should be tailored to address the offending behaviour.

Sentencing Guidelines and Decision-Making

Sentencing guidelines issued by the Sentencing Council must be followed unless it would be contrary to the interests of justice. The guidelines set out a step-by-step process:

1. Determine offence category (harm and culpability)
2. Identify starting point and category range
3. Consider aggravating and mitigating factors
4. Apply reductions (e.g., for guilty plea)
5. Ensure the sentence is proportionate and serves the purposes of sentencing

Key Term: purposes of sentencing The statutory aims of sentencing: punishment, reduction of crime, reform and rehabilitation, protection of the public, and reparation to victims.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The custody threshold means custody is a last resort; only the most serious offences justify immediate imprisonment.
• A suspended sentence is available for custodial terms of 14 days to 2 years, if justified by the offence and circumstances.
• Community orders allow courts to impose requirements such as unpaid work, rehabilitation, or curfew, tailored to the offender.
• Breach of a suspended sentence or community order can result in activation of custody or more onerous requirements.
• Sentencing guidelines and the totality principle ensure sentences are fair, proportionate, and consistent.

Key Terms and Concepts

• custodial sentence
• custody threshold
• totality principle
• suspended sentence
• community order
• purposes of sentencing