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Easton & Piper: Sentencing and Punishment 2e

Chapter 2

Sentencing exercise

At the end of Chapter 2 we used a sentencing scenario, where you, a student, were asked to be a sentencing judge. The following were the agreed facts of your first 'case':

Max, a 24 year old, and his friend, Perry, aged 19, came back to Max's family home one evening feeling upset and angry because their twin sister girlfriends had just ditched them. Max took his grandad's radio - of great sentimental significance to grandad because he had been given it by a dying friend - couldn't find the right wavelength and smashed the radio. Perry insulted and swore at the grandfather.

Perry and Max then decided to take the bicycle from the neighbour's yard (without asking him) and taking turns, drove the bicycle round the town. (Max had apparently done this twice before.) They then abandoned the bicycle. While they were gone grandad had a stroke and died two hours later.

The 'court' had decided that both Max and Perry had committed a crime by using the bicycle. Perry was also guilty of 'insulting behaviour' and Max of damaging the radio.

You were then given two tasks:

1. To decideon a sentence which provides the amount of punishment that Max and Perry each deserve for what they have done.
2. To decide on a sentence that will have the most effective outcome.

For each task you were asked to state the purpose of your decision and the factors you took into account. You were also asked whether your answer would be any different if you had been aware that insulting or harming grandparents is viewed as a very serious matter in that community.

For the first task you are being asked to sentence on retributivist principles and so the purpose of the sentence is that Max and Perry should receive their just deserts. You therefore need to calculate how serious their offending was and select a sentence for each of them which is proportionate to what they have done. Given that you have no information about approaches to proportionality in that society, you need to consider issues of ordinal and cardinal proportionality and decide on 'anchoring points' for your penalty scale. You also need to consider what factors in the case make the offending more or less serious, and what personal factors you are prepared to take into account in mitigation. You need to decide on the extent to which you would take into account the element of persistence in their wrongful use of the bicycle, given different retributivist approaches. You also need to consider how much weight you will give to the 'value' of the damaged radio to the victim as opposed to its value in monetary terms. You might also consider whether the offenders' culpability is increased because of the outcome of the incident on the victim's health. If you are made aware that the victim had a particular status in the community so that any offending against him was automatically more serious, then you would need to weight the seriousness and proportionate punishment more heavily.

For the second task you would sentence on utilitarian principles or, arguably, restorative justice principles (see Chapter 6) and so you need to decide what effective outcome you wish to encourage. In relation to utilitarianism, this outcome could be incapacitation or rehabilitation of the offender (to prevent or reduce their re-offending) or deterrence (of the offender or others). For the purposes of deterrence, rehabilitation or incapacitation the penalty you impose could be considerably longer, more intrusive and generally more 'painful' than any proportionate sentence imposed under Task 1 as long as you could justify that this would achieve its stated objective. In regards to rehabilitation you might wish to impose a form of punishment which also benefits the community or the family if you think this would contribute to changing the attitudes of Max and Perry to their offending. Similarly, if you took a retributivist approach, where the desired outcome is re-integration of the offenders and the repairing of damage (physical or emotional) to all affected persons, then you might consider mediation and reparation.

We also noted that, in relation to Task 1, you might wish to alter your proposed sentence if asked to reconsider your ideas about seriousness. When thinking again about seriousness you might have:

Devising a seriousness scale

You were also asked to select 20 acts of 'wrongdoing' and devise your own seriousness severity scale for those items, listing them from the least to the most serious in your opinion.

In justifying your choice you would have been helped by the material in sections 2.5 and 2.7. You should also look at the web page of the Sentencing Guidelines Council (SGC) - see the web links for Chapter 2 on this Online Resource Centre. In December 2004 Guidance was issued about 'seriousness' and the thresholds for the use of custodial and community sentences. You might then have: