Report on Mandatory Sentences - Law Reform Commission

institution. For the purposes of this regime, one of the prior burglary offences must have been committed
by the offender after he or she was convicted of the other. 26 The obligation to impose the minimum
sentence will apply unless the court considers that there are particular circumstances relating to the
offences or the offender which would make it unjust in all the circumstances to impose the minimum
penalty. 27
5.31 Once again, section 152(3) of the 2000 Act permits the court to impose a sentence of not less
than 80 percent of the minimum term prescribed, where the accused has indicated an intention to plead
guilty. 28 In determining whether to exercise this option, the court is required to take into account the stage
at which the accused indicated this intention and the circumstances surrounding that indication. 29 As
previously noted, it has been asserted, however, that a court is entitled to take advantage of section 152
whenever an offender has pleaded guilty, even though the intention to plead guilty was not indicated in
advance of the trial. 30 Where a court does rely on section 152 in imposing a sentence lower than the
prescribed minimum, it must indicate how it arrived at that sentence and what allowance has been made
for the plea. 31
5.32 As discussed at paragraphs 2.200 and 2.201, the presumptive three-year minimum sentence
was introduced in response to a perception that the courts were imposing unduly lenient sentences for
burglary offences. It is debatable, however, whether the enactment of this sentencing regime has
addressed this perceived problem. In 2007, for example, 79 percent of offenders convicted of a third
domestic burglary did not receive the three-year presumptive minimum sentence. 32 Wasik notes that
these statistics:
(iii)
“indicat[e] that judges are not held in sway to the criminal record [of a repeat burglary offender],
despite the section’s emphasis on that aspect of the sentencing decision, and that they look at all
the circumstances before deciding on the appropriate sentence for the new offence.” 33
Public Protection
5.33 Section 224A of the Criminal Justice Act 2003 34 applies a presumptive ‘two-strike’ sentencing
regime in respect of certain serious offenders. This regime requires a sentencing court to impose a life
sentence upon an adult offender who is convicted of an offence listed in Part 1 of Schedule 15B, 35 where
both the “sentence condition” and “previous offence condition” (discussed below) are fulfilled. Section
244A(2) grants the court discretion not to impose the life sentence where there are particular
circumstances which relate to the offence, the previous offence, or the offender, which would render the
application of this penalty unjust in all the circumstances.
5.34 For the purposes of section 224A, the “sentence condition” requires that the second offence
must be serious enough to justify the imposition of a sentence of at least 10 years’ imprisonment. 36 In
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Section 111(1) of the Powers of Criminal Courts (Sentencing) Act 2000.
Section 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000.
See also: section 144 of the Criminal Justice Act 2003.
Section 152(1) of the Powers of Criminal Courts (Sentencing) Act 2000.
Current Law Statutes (Sweet and Maxwell, 2000) at 6-105.
Section 152(2) of the Powers of Criminal Courts (Sentencing) Act 2000.
Hope “Four-Fifths of Repeat Burglars do not receive Minimum Jail Term, say Tories” The Telegraph 4
February 2009.
Wasik “Dimensions of Criminal History” in Roberts and von Hirsch, eds, Previous Convictions at Sentencing:
Theoretical and Applied Perspectives (Oxford: Hart, 2010) at 176.
Inserted by section 122 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Part 1 of Schedule 15B lists 44 offences, many of which relate to terrorism, the use of firearms, homicide, and
sexual crimes (particularly against children).
Section 224A(3) of the Criminal Justice Act 2003.
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