Should impact constitute mitigation?: structured discretion versus mercy

Abstract

Sentencing guidance on the weight to be given to mitigation about the impact of punishment on an offender has differentiated between serious and less serious offending and between degrees and types of disadvantage. This article reviews current sentencing approaches and analyses the justifications for taking impact into account. In particular it notes that increased emphasis on victim impact and a recent 'inflation' of seriousness decreases the likelihood that punishment impact will influence sentencing decisions. Consequently, it argues that, at a time of rising use of imprisonment, principled justifications could support more attention to impact, and that this is particularly important where offending lies on the ‘cusp’ of a custodial sentence. NOTE: In Bata, [2006] EWHC 468 (QBD), the case referred to on pages 143-4, the minimum period of 10 years set by the trial judge and confirmed by the Secretary of State, had taken Mr Bata’s age and infirmity into account. The author regrets that it was not made clear in the published article that this was the context for the decision of Jack J. in the High Court that it was not appropriate to make further deductions in view of the gravity of the offence.