H v AG 2004 (Sentencing – Starting Points)
- November 5, 2014
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We acted for an appellant in respect of an appeal against sentence before the Court of Appeal, on one of the rare occasions when it sat with five judges to rule on an issue of general importance, namely whether starting points should be used in sentencing for grave and criminal assaults.
It was a difficult and complex issue, which was hotly debated among members of the court. The outcome was a compromise between two conflicting positions. The court held that it was preferable to use starting points for all offences as they make sentencing more transparent, aid consistency and ensure that adequate discount is made for mitigation, e.g. guilty plea. On the other hand, the court stated that starting points are not required by the European Convention on Human Rights and are not otherwise mandatory, but the reasoning of the sentencing court should be clear.
Starting points in grave and criminal assaults involve a two-stage process, starting with the selection of a starting point by weighing factors aggravating (including relevant bad character) and reducing gravity and then making a deduction of mitigating factors including discount for guilty plea, personal mitigation, time awaiting trial, good character and other personal circumstances.