Overarching Sentencing Guideline

8. Prevalence and Community Impact

The starting points and ranges set out in the offence specific sentencing guidelines issued by the Sentencing Council (England and Wales) already take into account the impact of criminal offending on the community.

In the vast majority of cases it will not be necessary for sentencers to make any adjustment to an offence specific guideline from England and Wales to take into account issues of prevalence and community impact because the sentencing levels in offence specific guidelines take account of collective social harm.

In some circumstances, however, the sentencer may conclude that the applicable sentencing ranges set out in the offence specific guideline from England and Wales do not sufficiently take into account issues relating to prevalence and community impact that are particular to the Falkland Islands.

If the sentencer is considering making an upward adjustment to the starting point based on prevalence and/or community impact then the following principles must be applied:

  • The principle assessment of the level of culpability and harm caused by an offence must remain the starting point for any consideration of sentence.
  • An upward adjustment to the starting point should only be made on the basis of prevalence and/or community impact where there is clear evidence of wider harm not already taken into account elsewhere.
  • Clear evidence of wider harm must be established by a community impact statement in accordance with section 499 of the Criminal Procedure and Evidence Ordinance 2014.
  • Even if such material is provided, a sentencer will only be entitled to treat prevalence and/or community impact as an aggravating factor if satisfied:
    • that the level of harm caused in the Falkland Islands is significantly higher than that caused in England and Wales (and thus already inherent in the guideline levels);
    • that the circumstances can properly be described as exceptional; and
    • that it is just and proportionate to increase the sentence for such a factor in the particular case being sentenced.
  • It is not open to a sentencer to increase a sentence for prevalence in ordinary circumstances or in response to a personal view that there is 'too much of this sort of thing going on in the Falkland Islands’.
  • There is no justification for increasing sentence beyond the ranges set out in offence specific guidelines on the basis that offending is novel or has not occurred for a lengthy period of time.
  • Care must be taken not to confuse offending that is rare with offending that has become prevalent. In respect of offending that is rare the size of the jurisdiction means that there can be long periods without certain types of offences being committed, purely on the basis that there is no one present within the jurisdiction who is minded to engage in that type of offending.

If a sentencer makes an upward adjustment to sentence on the basis of prevalence and/or community impact then they must give reasons for doing so.

Sentencers should state the sentence that would have been imposed without an upward adjustment to sentence on the basis of prevalence and/or community impact, and then state the amount by which the sentence has been adjusted to take into account prevalence and/or community impact.

 

 

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8. Prevalence and Community Impact
Created: Monday, 15 February 2021 11:45 | Size: 87.24 KB