Overarching Sentencing Guideline

6. Imposition of Custodial Sentences

For offenders under the age of 21 at the date of conviction sentencers should apply the specific guidance on children and young offenders (see below).

For offenders aged 21 and over at the date of conviction the approach to the imposition of a custodial sentence should be as follows.

Has the custody threshold been passed?

A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.

There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the culpability of the offender, the harm caused by the offence, and any previous convictions will be relevant to the assessment.

The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

A custodial sentence can only be imposed where the custody threshold has been passed and MUST NOT be imposed as an alternative to a financial penalty or community order.

Is it unavoidable that a sentence of imprisonment be imposed?

Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.  It remains the case that any sentence must reflect the seriousness of the offence.

For offenders on the borderline of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

What is the shortest term commensurate with the seriousness of the offence?

In considering this the court must NOT consider any licence requirements which may subsequently be imposed upon the offender’s release.

When applying offence specific guidelines from England and Wales sentencers MUST NOT make any adjustment to the custodial periods set out in the England and Wales sentencing guidelines due to the fact that a person often serves a shorter custodial period in England and Wales prior to release on licence[1].

Can the sentence be suspended?

 A suspended sentence MUST NOT be imposed as a more severe form of community order.

A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence.


The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.


Pre-sentence report

Whenever the court reaches the provisional view that the custody threshold has been passed, the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary.


Suspended sentences: general guidance

The guidance regarding pre-sentence reports applies if suspending custody.

The time for which a sentence is suspended should reflect the length of the sentence; for example, up to 12 months might normally be appropriate for a suspended sentence of up to 6 months.

When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders.

A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.




R v Butler [2018] Supreme Court ruling on sentence
Created: Tuesday, 24 July 2018 15:58 | Changed: Thursday, 27 May 2021 11:35 | Size: 119.8 KB


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6. Imposition of Custodial Sentences
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