C1Part 9Sentencing: Principles and Procedures
Chapter 1Principles and Procedures applying to Service Courts and Summary Hearings
General sentencing principles
I1I8C2237Duty to have regard to purposes of sentencing etc
1
A court or officer dealing with an offender for a service offence must have regard to the following purposes of sentencing—
a
the punishment of offenders;
b
the maintenance of discipline;
c
the reduction of service offences and other crime (including reduction by deterrence);
d
the reform and rehabilitation of offenders;
e
the protection of the public;
f
the making of reparation by offenders to persons affected by their offences.
2
If the offender is aged under 18 the court or officer must also have regard to his welfare.
3
This section does not apply in relation to—
a
an offence the sentence for which is fixed by law;
F11b
an offence the sentence for which falls to be imposed under section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence);
ba
an offence the sentence for which falls to be imposed under section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over);
bb
an offence the sentence for which falls to be imposed under section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);
bc
an offence the sentence for which falls to be imposed under F17section 313(2A) of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);
bd
an offence the sentence for which falls to be imposed under F18section 314(2A) of the Sentencing Code as a result of section 226(2) (third domestic burglary);
be
an offence the sentence for which falls to be imposed under section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences);
c
an offence the sentence for which falls to be imposed under section F12227A(1A) or (2) (threatening with a weapon in public or on school premises).
4
In this section “sentencing” includes the making of any order when dealing with an offender in respect of his offence.
I2I9238Deciding the seriousness of an offence
1
A court or officer dealing with an offender for a service offence (“the current offence”) must in considering the seriousness of the offence—
a
consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or could foreseeably have caused;
b
if the offender has one or more previous convictions, treat as an aggravating factor each previous conviction that the court or officer considers can reasonably be so treated;
c
if the offender committed the current offence while—
i
charged with another service offence and released from service custody, or
ii
on bail,
treat the fact that it was committed in those circumstances as an aggravating factor.
2
In considering whether a previous conviction can reasonably be treated as an aggravating factor the court or officer must have regard (in particular) to—
a
the nature of the offence to which the conviction relates and its relevance to the current offence; and
b
the time that has elapsed since the conviction.
3
Any reference in subsection (1) or (2) to a previous conviction is to be read as a reference to—
a
a previous conviction of a service offence; F1...
b
a previous conviction by a court in the British Islands of an offence other than a service offence.
F2c
a previous conviction by a court in a member State other than the United Kingdom of a relevant offence under the law of that State, or
d
a finding of guilt in respect of a member State service offence.
F34
Nothing in this section prevents the court or officer from treating—
a
a previous conviction by a court outside both the British Islands and any member State, or
b
a previous conviction by a court in any member State (other than the United Kingdom) of an offence which is not a relevant offence or a member State service offence,
as an aggravating factor in any case where the court or officer considers it appropriate to do so.
5
For the purposes of this section—
a
an offence is “relevant” if the offence would constitute an offence under the law of any part of the United Kingdom if it were done in that part at the time of the conviction in respect of the current offence,
b
“member State service offence” means an offence which—
i
was the subject of proceedings under the service law of a member State other than the United Kingdom, and
ii
would constitute an offence under the law of any part of the United Kingdom, or a service offence, if it were done in any part of the United Kingdom, by a member of Her Majesty's forces, at the time of the conviction of the defendant for the current offence, and
c
“service law”, in relation to a member State other than the United Kingdom, means the law governing all or any of the naval, military or air forces of that State.
F136
In section 69 of the Sentencing Code (seriousness of offence with terrorist connection)—
a
the references to a court are to be read as including a court dealing with an offender for an offence under section 42, and
b
the reference in subsection (1) to an offence specified in Schedule 1 to that Code is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence specified in Schedule 1.
I3I7239Reduction in sentences for guilty pleas
1
This section applies where an offender—
a
has pleaded guilty to a service offence in proceedings before a court; or
b
at a summary hearing in respect of a service offence, has admitted the offence.
2
In determining what sentence to pass on the offender, the court or officer dealing with him for his offence must take into account—
a
the stage in the proceedings for the offence at which he indicated his intention to plead guilty or his intention to admit the offence at a summary hearing; and
b
the circumstances in which this indication was given.
3
In subsection (2) “sentence” includes any order made when dealing with the offender in respect of his offence.
4
5
C3F56
I4I6240Increase in sentence for racial or religious aggravation
1
This section applies where a court or officer dealing with an offender for a service offence (other than an offence mentioned in subsection (3)) is considering the seriousness of the offence.
2
If the offence was racially or religiously aggravated the court or officer—
a
must treat that fact as an aggravating factor; and
b
must state in open court that the offence was so aggravated.
3
This section does not apply in relation to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under any of sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37) (racially or religiously aggravated assaults, criminal damage, public order offences and harassment etc).
4
Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or religiously aggravated”) applies for the purposes of this section as it applies for the purposes of sections 29 to 32 of that Act.
I5I10241Increase in sentence for aggravation related to disability F4, sexual orientation or transgender identity
1
This section applies where a court or officer dealing with an offender for a service offence within subsection (2) is considering the seriousness of the offence.
2
A service offence is within this subsection if—
a
at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
i
the sexual orientation (or presumed sexual orientation) of the victim; F7...
ii
a disability (or presumed disability) of the victim; or
F8iii
the victim being (or being presumed to be) transgender, or
3
The court or officer—
a
must treat as an aggravating factor the fact that the offence was committed in any of the circumstances mentioned in paragraph (a) or (b) of subsection (2); and
b
must state in open court that the offence was committed in such circumstances.
4
It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether the offender's hostility is also based to any extent on any other factor not mentioned in that paragraph.
5
In this section “disability” means any physical or mental impairment.
F66
In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.
Pt. 9 modified (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, s. 163