Assessing Harm and Culpability in Burglary Cases

Part 1

Domestic burglary is provided for under Section 9 of the Theft Act 1968. This offence is indictable only where the offence is committed or there was intent to commit the offence triable only on indictment. On conviction, it will constitute a third qualifying conviction for domestic burglary, where Section 111 of the Powers of the Criminal Courts (Sentencing) Act 2000 must be applied and a custodial term of at least three years will be imposed.

James has been convicted of burglary and therefore the offence is a third qualifying conviction. However, there are a few steps to consider the appropriate sentence for the offence. If the theft of or damage to property has caused significant degree of loss, whether economic, sentimental or personal value to the victim or has caused vandalism of property, it indicates greater harm. This is applicable in the current case. Cash and jewellery worth about £50,000 is a huge economic loss and destruction of the Christmas tree and several decorations is a loss of something with personal value and destruction of some decorations belonging to the late mother of the owner is a loss of property with sentimental value.

If the defendant was equipped for burglary, it indicates higher culpability. If the offence was committed on impulse, but with limited intrusion into the property, or if the defendant was exploited by other, it indicates lower culpability. James was equipped with a crowbar and a holdall and hence there is higher culpability. There cannot be claim of offence being committed on impulse to constitute lower culpability as there was sufficient intrusion into property. Thus, the only defence could be that he was exploited by the acquaintance to commit the offence in order to claim for lower culpability. This could be proven by the fact that he is unemployed and was anxious to find money to buy his five-year-old son a Christmas present.

There are three categories of offence. Category 1 applies to greater harm and higher culpability. Category 2 applies to greater harm, but lower culpability or lesser harm, but higher culpability. Category 3 applies to less harm and lower culpability. Considering the facts of the case and the factors in respect to harm and culpability, the offence falls under Category 2 that applies to greater harm, but lower culpability. Since the offence is Category 2 offence, the starting point is custody of 1 year. However, the category ranges with a high level community order and up to 2 years’ custody.

This is a serious specified offence for purposes of the Criminal Justice Act 2003, Section 224 if it was committed with intent to inflict grievous bodily harm on a person, or do unlawful damage to a building or anything in it. However, the seriousness of the offence will determine whether a custodial sentence should be imposed or not. An offence would be serious if a fine or a community sentence cannot justify the offence. Other factors such as the harm resulted from the offence, culpability and any previous convictions will be considered. The principle of Third strike’ domestic burglary provides for a third domestic burglary to be triable only on indictment. Thus, custody will not be suspended if the defendant poses a risk or danger to the public; has a history of poor compliance with court orders; or immediate custody is the only way to justify an appropriate punishment.

In the current case, James is a repeat offender with two previous convictions for domestic burglary, in 2014. There is a chance that he poses a risk to the public. Also, factors such as same offences being committed aggravate the seriousness of the case. However, on the other hand, in the previous convictions, he pleaded guilty and received a community sentence which he successfully completed. This establishes that he has a good court order compliance record. In addition, as seen earlier, his offence is that of a lower culpability and that six years have elapsed since the previous convictions. Therefore, the option of not suspending custody may not be appropriate in this case. However, James may have a realistic prospect of rehabilitation given that he has a record of successfully complying with community sentence. He may also have a strong personal mitigation by the fact that he is remorseful of his action and the fact that he has a job interview in a few weeks. An immediate custody will result in significant harmful impact upon others, including his relationship with his son and his chances of reconciling with his girlfriend and returning to their shared home. In such circumstances, it is desirable to see whether a community sentence might be more appropriate and the custody be suspended.

Suspended sentence must commensurate with offence seriousness. Therefore, the time for which a sentence is suspended must reflect the length of the sentence. As such, up to 12 months period may normally be appropriate for a suspended sentence of up to 6 months. Thus, in the current case, if the custody is of 1 year, it may be suspended up to 2 years together with high level community order.

A potential reduction for a guilty plea is done with the Act 2003, Section 144 and Guideline for Reduction in Sentence for a Guilty Plea. According to the Guideline, where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made. In this current case, the custody is for 1 year. After reducing 1/3, it becomes 9 months.

Reduction in sentence for a guilty plea could be taken into account by imposing a sentence rather than another. For instance, custodial sentence can be reduced to a community sentence, or a community sentence can be reduced to a fine. In the current case, a fine may not be practical given the James is not in a good financial state. The possible reduction could be that the sentence if reduced to a community sentence. When, under section 111 of Act 2000, a minimum sentence is imposed, such sentence should be not less than 80 percent of the appropriate custodial period after any reduction for a guilty plea.

Legislation

The Criminal Justice Act 2003

The Powers of the Criminal Courts (Sentencing) Act 2000

The Theft Act 1968

Cases

McInerney [2003] 1 All ER 1089.

R v Michael O’Leary [1986] 82 Cr. App. R. 341.

R v Maguire [2003] 2 Cr. App. R. (S.).

R v Northallerton magistrates’ Court, ex parte Dove [2000] 1 Cr App R (S) 136.

R v Saw and Others [2009] EWCA Crim 1

Part 2

Punishment must commensurate the crime. It means it should be proportionate to the crime to reflect equal gravity with harm inflicted on the victims. There should be acceptable level of punishment depending on determination of the categories of the offences. The following paragraphs will discuss punishment theories and principles around how punishment or the extent of punishment is assessed based on the seriousness of the crime. They will discuss how punishments should reflect the crime in terms of severity subject to the level of seriousness.

Kant’s retributivism sees punishment as being inflicted on the offender as he deserves it. As such, punishment must not be too weak or too strong. Kant’s retributivism is the doctrine of proportional punishment where punishment should be fairly administered so as not to harm the humanity in the person punished. Retributivists argue that retributivism sets the punishment proportionate to the crime. Crimes and punishments are ranked separately in respect to value. A crime with lowest value is given punishment with lowest value. However, Kant’s retributivism is open to the criticism that it is unclear as to how the doctrine will explain why the harm caused by the criminal must be of equal gravity with what the criminal inflicted on the victims. The theory should have required that acceptable punishments or criminal offences are ranked on a scale of seriousness. It would have therefore guaranteed that the most serious punishments will match most serious crimes. Such a ranking must be reasonable. The criminal justice system aims for fitting punishment appropriate to the crime committed. The principle applicable here is the crime considered serious by society should deserve severe punishments and those which are trivial in nature merit minor sanctions. According to Cesare Beccaria, criminals owe a debt to the society and thus, the punishment should be strictly proportionate to the seriousness of the crime. According, she states that torture as a form of punishment is not a useful method of criminal investigation and that capital punishment is not necessary as a form of punishment or deterrent. She favoured imprisonment as a form of punishment. All these reasoning seem to be based on her support of the social contract theory whether individuals are bound to society if they agree to societal arrangements. According to her, punishment is to defend a person liberty against the violaters. The Classical theory also holds similar value in that it views sentencing based on the principle that punishment should be of a degree commensurate to or proportionate to the gravity of the offence and the culpability of the offender.

The reason behind a person's desire to punish offenders for their intentional, counter normative harms may be a just deserts motive or may be a desire to incarcerate the offenders so that they are not able to pose any danger to the society. The level of punishment may increase depending on the increase in the degree of seriousness of the offense. A just deserts motive holds the primary sentencing motive. The stronger version of the theory of retributivism is the Simple Desert Theory that states that a system would not provide the offenders what they deserve. Simple Desert Theory is based on the moral theories that hold that an offender who has committed serious offences deserve to suffer punishment. This claim is a fundamental desert claim or a derivative of a fundamental desert claim. Based on this theory, the state should be structured in a manner including a criminal law system with a practice of punishment. There should not be a scope of forgiveness as it rejects judgments based on this theory. The desert model for sentencing thus emphasises on the degree of seriousness of the crime while deciding the severity of the punishment. This theory may be aligned with the principle that serious offence should be given severe punishment. However, the question is about how the magnitudes of differences between the seriousness of the crime. The answer may lie in understanding the magnitude of the intervals between seriousness of the offences that matches the magnitude of the interval between the severity of the corresponding punishments. However, the problem that may arise from this theory is that it may not take into account the possibilities of rehabilitation and punishment would become a default standard.

Seriousness of a crime is subject to the degree of risk of harm of a conduct and the extent of culpability of the offender. Culpability is determined by considering the intent, conduct, recklessness, other negligent behaviours, degree of purposefulness, disregard of the consequences, or carelessness. Harm is gauged by taking into account measures of quality of life, which reflects both economic and non-economic interests. Thus, a sentence should commensurate with the seriousness of the offence, the seriousness being determined by the harm or the risk caused and the culpability of the offender in committing the offence. For example, while determining the offence of domestic burglary under Section 9 of the Theft Act 1968 category of the offence, a greater harm is caused if the theft of or damage to property has caused significant degree of loss, whether economic, sentimental or personal value to the victim or has caused vandalism of property. Likewise, there is a higher culpability if the defendant was quipped for burglary; however if the offence was committed on impulse, but with limited intrusion into the property, or if the defendant was exploited by other, it indicates lower culpability. In case of suspended sentence, it must commensurate with offence seriousness. Therefore, the time for which a sentence is suspended must reflect the length of the sentence. As such, up to 12 months period may normally be appropriate for a suspended sentence of up to 6 months. The Utilitarian theory provides for proper amount of punishment, which calls for a deterrent threat sufficient for bringing the crimes down to a more tolerable level. The deterrent threat is subject to severity of the punishment, and factors such as probability of apprehension and conviction and degree of unemotional calculation before the crime. Effective deterrence of any criminal offence may require that criminals are threatened with more severe punishment than what would actually fit or would be equivalent in seriousness to the crimes committed. The theory advocated Ross and Hart, called the Mixed theory of punishment suggests deterrence as the social goal of punishment subject to the condition that it restricts deprivation of rights of the wrongdoer through their crime or wrongdoing. The limitation suggested by this theory is only for prohibiting punishment of the innocent. For a punishment to be justified, the wrongdoer who is punished should have forfeited their rights of which they are deprived. The state may imposed the harm by appeal to deterrence principle.

The element of seriousness may not take into account the violation of moral rights and harms suffered. Thus, the standards for categorising crimes may vary based on several factors in addition to the element of seriousness of the offence. In this regard, it is important to note that there are two distinct psychological magnitudes when confronted with a crime. First reflects seriousness of the crime and second reflects long-term value of the criminal as an associate. The former regulates the extent of reaction, for example the level of severely that one desires to punish the criminal, and the latter regulates the decision of how to react, for example whether to punish or repair. These magnitudes may be applicable in case of offences committed by youths. The youth justice systems often aim to deter offenders and to give punishment in case of offence committed. The systems have a standard assumption that young offenders lack ability to control own impulses or to understand the seriousness of the offences they have committed. There are also other variable factors such as poverty, neglect or cruelty that may push them to commit crimes. This is the reason why the first option is to deter them from committing crime. Justice requires them to be given therapeutic services and other educational services. Similar to the situation including youth offender, if in a situation where the offender is unreceptive to the punishment or to the offence he has committed, what provisions would be effective to define the punishment? There may be some offender who may fall in the category of being unreceptive and it would make no sense to punish them. For example, the offender suffers from emotional and cognitive impairments to that extent that he cannot appreciate the wrongfulness of his act or the seriousness of the crime he has committed. However, Glasgow states that it is not satisfactory if punishment of unreceptive offenders cannot be justifiable as it would create the risk of offering incentives to the offenders. Offender would, otherwise, have incentives to become unreceptive. Punishment should reflect the seriousness of the crime and it should not be based on the features of the offenders but on the seriousness of the crime. This reflects a fine balance of the application of the two magnitudes mentioned above. Society has a duty and citizens the right to punish offenders for violating rights of other citizens and the punishment should reflect the seriousness of the crime. However, it is also equally important that any punishment and deterrence must be combined with rehabilitation. However, the level of seriousness may be difficult to define sometimes. For example the Criminal Justice Act 1998 provides for fast tracking cases related with serious or persistent young offenders. The definition of seriousness and persistence in this case could be termed contentious. Serious may seldom be persistent and persistent may seldom be serious.

The logic of the criminal law focuses on the act judged by the seriousness of the crime and the evil intention of offender. However, the emergence of the regime of psychology and psychiatry may have shifted the paradigm towards the person and their identities, which means the delinquent and not on the offender. The theories of psychology and psychiatry may have played a lesser known role in criminology; however, it has provided tools to gather actuarial data related to the crime. This data may help in attributing liability, which involves defining the appropriate degree of seriousness of the offence, defence scope or appropriate punishment. This subsequently demands a need of codification of the rules necessary to define the relevant degrees. Robinson proposes a theory of codification, which calls codes for each of conduct and adjudication. However, difficulty in distinguishing between rules may impede codification. For example, the defense rules for judging seriousness of an offence may not be the rules for conduct. However, a general system could persist where it performs, firstly, to establish a common structure with a grid of intelligibility allowing definition of each offence using common terminology and facilitating assessment of their corresponding seriousness. In this regard, elements of actus reus and mens reas come in the picture to separate each particular offence, which may be group into offences relating against property, person or civic order. The system may also define concepts of liability, for instance states of mens rea, causation, complicity and many more. Secondly, the general system could also provide for a normative framework, which goes beyond definitional control and establishes standards, such as reasonableness or wrongful to maximise flexibility of the judiciary while dealing with a case. The normative seriousness of a crime indicates the penalty scheme in criminal statutes, which provides for both relative and absolute seriousness of crimes. The former being provided by comparing penalties for crimes, for example rape punishable by 5 years is more serious than theft offence punishable by 1 month imprisonment. The latter provides that penalties are not comparable in nature. Penalties constitute hard treatment for serious offence.

Defining the degree of seriousness should encompass the notion of deterrence, reformation, personality or similar moral standing, and should be based on a combined normative framework and a common structure of intelligibility, which will allow enough flexibility to define each offence and associated common terminology to facilitate assessment of their corresponding seriousness and ensure punishment commensurate the crime.

Books

Brooks T, Punishment (Routledge 2012)

Corlett JA, Responsibility and punishment (Springer 2006)

Czabanski J, Estimates of Cost of Crime: History, Methodologies, and Implications (Springer 2008)

Dubber MD and Tatjana Hörnle, The Oxford Handbook of Criminal Law (Oxford University Press 2014).

Ellis A, The Philosophy of Punishment (Andrews UK Limited 2012).

Hirsch AV, Deserved Criminal Sentences (Bloomsbury Publishing 2017).

Holmgren MR, Forgiveness and Retribution: Responding to Wrongdoing (Cambridge University Press 2012) McShane M, An Introduction to Criminological Theory (Routledge 2013).

Murphy JG, Punishment (Princeton University Press 1995)

Pitts J, ‘Youth justice in England and Wales’ in Roger Matthews and Jock Young (ed.), The New Politics of Crime and Punishment (Willan Publishing 2003)

Wringe W, An Expressive Theory of Punishment (Palgrave MacMillan 2016).

Young J and Roger Matthews, ‘New Labour, crime control and social exclusion’ in Roger Matthews and Jock Young (ed.), The New Politics of Crime and Punishment (Willan Publishing 2003)

Journals

Darley JM, Kevin M. Carlsmith and Paul H. Robinson, ‘Incapacitation and just deserts as motives for punishment’ (2000) 24(6) Law and Human behavior 659-683.

Murphy JG, ‘Kant’s theory of criminal punishment: Retribution, justice, and therapy’ (1979) Springer, Dordrecht 82-92.

Petersen MB et al., ‘To punish or repair? Evolutionary psychology and lay intuitions about modern criminal justice’ (2012) 33(6) Evolution and Human Behavior 682-695.

Rossi PH, Jon E. Simpson and JoAnn L. Miller, ‘Beyond crime seriousness: Fitting the punishment to the crime’ (1985) 1(1) Journal of Quantitative Criminology 59-90.