Sentencing — SQE1 FLK2 Criminal Law and Practice

A woman pleads guilty to a benefit fraud of £4,000 committed over eight months. The judge gives his sentencing remarks. This offending does not cross the custody threshold, he says. A community order would ordinarily be the right disposal. But to give the order some teeth, I will impose twelve weeks' imprisonment, suspended, with a hundred hours of unpaid work. Her advocate gets to her feet. Can he do that? No.

This is Sentencing, and all of it is a ladder of thresholds. Each rung has to be climbed before you reach the next, and a suspended sentence sits on the custody rung, not the community one. Get the ladder right and most of these questions answer themselves. Keep our judge in mind. We are coming back to him.

Here is the route. First how a sentence is built: the guideline, seriousness, aggravation and mitigation, and the discount for a plea. Then the ladder itself, from discharge up to life, with the suspended sentence in the middle where the trouble is. Then breach. And last, the machinery around sentence: Newton hearings, indications, and what a victim's statement is for.

Start with the shape. A sentence is built in a fixed order, and the order matters more than any single figure. Category first, from the guideline. Then aggravation and mitigation. Then the discount for the plea. Then the disposal. And only then, totality. Take those out of order and you will get the wrong answer, however good your instincts.

The guideline first. Under s.59 of the Sentencing Act 2020 a court must follow any relevant sentencing guideline unless satisfied that following it would be contrary to the interests of justice. Note what that is: a real power to depart, not a rubber stamp. But s.52 makes the court give reasons, including where it sentences outside the guideline range.

Seriousness has two ingredients. Culpability, which is the offender's role, intention and responsibility. And harm, the impact on the victim. The court assesses them separately, then combines them as the particular guideline directs. Guidelines differ, so read the one in front of you. Older ones like burglary use three categories. Newer ones like assault grade culpability A to C and harm 1 to 3.

On the burglary model, category 1 is greater harm and higher culpability. Category 3 is lesser harm and lower culpability. Category 2 is either mixed box. So an impulsive walk-in through an unlocked door, but an occupier upstairs so frightened by it that she has since moved house, is greater harm with lower culpability. Category 2.

Each category carries a starting point and a range. The starting point is the typical case. The range is where the court moves for the factors in front of it. And in exceptional circumstances it can step outside the range altogether, giving reasons.

Then the factors. Aggravation is in the guideline and in the Sentencing Code at ss.64 to 66. Previous convictions, particularly similar ones. Offending on bail. A weapon. A vulnerable victim. Breach of trust. Planning. Attempts to destroy evidence. Each moves the sentence up from the starting point.

But watch for double-counting, because the examiners like it. A woman is sentenced for assault. The judge puts the offence in the highest culpability bracket because the attack was planned over several days, and takes that starting point. Can he then go above it for the premeditation? No. It is already inside the figure he started from.

One statutory duty stands out. Under s.66, hostility based on race, religion, disability, sexual orientation or transgender identity aggravates the offence. If the offender was motivated by it, or demonstrated it, the court must treat it as aggravating and must say so in open court. And it applies precisely where the aggravated form was never charged.

Mitigation runs the other way. No relevant previous convictions. Genuine remorse. Mental health difficulties. Youth or immaturity. Caring responsibilities. Cooperation with the police. And a timely guilty plea, which is where the arithmetic gets serious.

Section 73 makes the court take into account the stage at which the offender indicated a guilty plea, and the Sentencing Council's sliding scale does the rest. Up to one-third at the first stage of proceedings. Up to a quarter after that but before trial preparation. Up to a tenth once trial preparation has begun. So try one. Three years after a trial, plea indicated at the first hearing. The sentence? Two years.

The court must state the sentence it would have imposed before the reduction, so the discount is always visible. One limit worth knowing. Where a statutory minimum applies, such as the three-year minimum for a third domestic burglary under s.314, the plea reduction is capped. It cannot take the sentence below 80 per cent of the minimum.

Now the ladder itself. The custody threshold is s.230. No custodial sentence unless the offence is so serious that neither a fine alone nor a community sentence can be justified. Crossing it makes custody possible. It does not make custody compulsory. And if custody is imposed, s.231 makes the term the shortest commensurate with the seriousness.

Which brings us back to our judge. A suspended sentence is a custodial sentence. It sits above the threshold, never below. The court finds the threshold crossed, fixes the term it would otherwise impose, and only then asks whether that term can be suspended. It must never be used as a heavier community order. That is wrong in principle, and appealable.

How long a term can be suspended? Until recently, two years. The Sentencing Act 2026 raised it to three years for offenders convicted on or after 22 March 2026. So: two years and six months for a fraud on an employer. Suspendable? Yes, now. It would not have been before that date.

And a presumption now runs the other way at the bottom. A sentence of twelve months or less must be suspended unless there are exceptional circumstances relating to the offence or the offender. There are carve-outs, including where the offender is already in custody or is being dealt with for breach of a court order. But the default has flipped.

The operational period is the time the sentence hangs over him. Six months to two years, extending to three years where the custodial term itself exceeds two years. Community requirements can be attached.

Commit another offence inside that period and the court must activate, in full or with a reduced term, unless that would be unjust. That is Schedule 16, and it looks at two things: the extent of compliance and the facts of the new offence. If activated, the court chooses consecutive or concurrent, and consecutive is usual.

Below custody sits the community order. Unpaid work, between 40 and 300 hours. A curfew, up to 20 hours a day and up to two years. Drug, alcohol and mental health treatment, up to three years each. A probation requirement, formerly the rehabilitation activity requirement, now with no cap on days. Exclusion, residence, tagging. And the new prohibitions from the 2026 Act on driving, public events and drinking establishments.

How many requirements can one order carry? There is no statutory maximum. Each must be suitable and the order as a whole proportionate, but nothing caps the number at three, or at any other figure.

Breach without reasonable excuse, and once it is proved the court has exactly three options under Schedule 10. Impose more onerous requirements. Fine her, up to £2,500. Or revoke the order and re-sentence for the original offence, which can mean custody. Taking no action is not one of them, however much of the unpaid work she has done.

Fines. Section 124 makes the court inquire into the offender's financial circumstances before fixing the amount. Seriousness and means work together at the moment the figure is set. Affordability is not parked for the enforcement stage. And compensation outranks a fine: under s.55 the court must consider a compensation order wherever there is injury, loss or damage.

At the bottom, discharges. An absolute discharge is a conviction with no penalty. A conditional discharge is a conviction with a warning. Reoffend within the operational period, up to three years, and you are sentenced for the original offence as well as the new one. Both are convictions. Neither is an acquittal.

Now upwards. A determinate sentence is a fixed term, served partly inside and the rest on licence. The release point has moved twice. The SDS40 arrangements brought it forward from a half to 40 per cent in 2024. The Sentencing Act 2026 replaces those with earned progression, releasing eligible sentences at one-third, phased in from 2 September 2026.

An extended determinate sentence is for dangerous offenders convicted of specified violent or sexual offences. A custodial term, plus an extension period on licence of up to five years for violence and up to eight for sexual offences. And here is the point people get wrong. The extension is not extra prison. He serves at least two-thirds of the custodial term before the Parole Board can consider release.

A life sentence is mandatory for murder. The judge sets a minimum term, and Schedule 21 fixes the starting point. Take a weapon to the scene intending to use it, and use it in the murder, and the starting point is twenty-five years. Otherwise fifteen. Where it came from does not matter: a knife carried from his own kitchen to her doorstep was still taken to the scene.

Multiple offences. Concurrent terms run together, consecutive terms one after another, and concurrent is the norm where the offences come out of a single incident. So: thirty months for a burglary, six months for the door he forced on the way in, ordered to run concurrently. The total? Thirty months. Not thirty-six.

And then totality. Ten shop thefts at four months each, all consecutive, gives three years and four months, far above the range for any one of them. The court must step back, ask whether the total is just and proportionate, and adjust the individual terms down until it is.

Two credits come off the end. Days on remand in custody count automatically and in full. Days on bail under a qualifying electronically monitored curfew, one of at least nine hours a day, count at half. So 40 days on remand plus 120 days on a twelve-hour tagged curfew gives 100 days.

Then the machinery. He pleads guilty but disputes the facts, and the difference matters to the sentence. That is a Newton hearing, from R v Newton. Both sides may call evidence, witnesses are cross-examined, and the judge is the fact-finder because there is no jury. What people forget is the standard. The plea concedes the offence, not the facts, so the prosecution must still make the court sure.

And there is a warning to give first. If he fights the facts and loses, he faces a higher sentence and will normally lose part of his credit for the plea. That is R v Underwood, and the Sentencing Council's guilty-plea guideline. Fighting a Newton hearing and losing is expensive.

The opposite problem: he wants to know the worst before he decides. In the Crown Court, through counsel, he may ask the judge to indicate the maximum sentence on a plea of guilty at that stage. That is R v Goodyear. The judge may refuse. But an indication once given binds, on that judge and on any judge who takes the case later.

Offences taken into consideration are admitted offences on a signed schedule. They attract no separate sentence. They lift the total to reflect the whole of the offending, by considerably less than separate prosecutions would, and in practice he will not be prosecuted for them afterwards.

Two documents at the end. A pre-sentence report informs the sentence but does not bind the judge; the choice of disposal is the court's. And a victim personal statement is evidence of the harm the offence caused, which goes to seriousness. But the victim's opinion on how long the sentence should be gets no weight.

A word on how SQE1 tests this. There are barely any case names in sentencing, and you will not be asked for one. You get a scenario, five answers, and one instruction: pick the best. What you need is the ladder, and the numbers on it.

If you keep only three, keep these. One-third, the maximum credit for a plea indicated at the first stage of proceedings. Three years, the longest custodial term that can now be suspended, with twelve months the point below which suspension is presumed. And the criminal standard, which is what the prosecution must reach on any disputed fact at a Newton hearing.

Four traps. One: a suspended sentence is custody. It can be imposed only once the custody threshold is crossed and a custodial term has been fixed. Using one as a heavier community order is wrong in principle, and it is exactly the error our judge made.

Two: crossing the custody threshold does not compel custody. Section 230 is a gateway, not a command, and the imposition guideline treats custody as a last resort. Strong personal mitigation or a realistic prospect of rehabilitation can still produce a community order.

Three: on a proved community order breach there are three options and only three. More onerous requirements, a fine of up to £2,500, or revoke and re-sentence. Taking no action is not on the list, however well she has complied.

Four: extended sentences are excluded from earned progression. It is two-thirds of the custodial term before the Parole Board can consider release, not one-third. Do not tidy that into line with the determinate rules.

Quick check. A man pleads guilty to robbery. The prosecution say he held a knife to the victim's throat before taking her bag. He says he had no knife and simply pulled the bag off her shoulder. The judge holds a hearing and both sides call evidence. The victim, attacked from behind in the dark, says she felt something cold at her neck. No knife was ever recovered. At the end of the evidence the judge is left unsure.

On what basis must the judge now sentence? Three candidate answers. One: that a knife was used, because the man must prove the version he asserts. Two: that no knife was used, because the prosecution must make the court sure. Three: on whichever account the judge thinks the more probable. Pause here if you want a moment.

The answer is two. The guilty plea does not change the standard. Disputed facts at a Newton hearing are proved by the prosecution to the criminal standard, so the court must be sure. The man has nothing to prove. If the judge is not sure, he must sentence on the basis most favourable to the defendant.

Why the others fail. Option one reverses the burden, and a guilty plea never shifts it onto the defendant. Option three imports the civil standard, which is the commonest error on this topic. The plea concedes the offence. It does not concede the facts.

Five things to take away. One: sentencing runs in a fixed order, category, factors, plea, disposal, totality, and taking it out of order produces the wrong answer. Two: up to one-third off for a plea at the first stage, a quarter after that, a tenth once trial preparation has begun.

Three: the custody threshold is a gateway, not a command, and a suspended sentence sits above it, never below. Four: three years is the ceiling for suspension since 22 March 2026, and twelve months or less must be suspended unless there are exceptional circumstances. Five: disputed facts after a guilty plea are proved to the criminal standard.

And our judge? He found the offending below the custody threshold, and then imposed a suspended sentence. He had no power to do it. A suspended sentence is not a community order with teeth. It is prison, held back. Next time, Appeals.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.