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Attempted Murder | CriminalDefenseLawyer.com

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Summary of article content: Articles about Attempted Murder | CriminalDefenseLawyer.com An explanation of how Attempted Murder Charges work, police arrest and booking procedures, Defense Options for being charged with attempted murder, … …
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Table of Contents:

An explanation of how Attempted Murder Charges work police arrest and booking procedures Defense Options for being charged with attempted murder and how a Lawyer can help

Murder and Attempted Murder

The Action

The Intention

Defenses

Punishments for Attempted Murder

Talk to a Lawyer

Talk to a Defense attorney

Attempted Murder | CriminalDefenseLawyer.com

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Murder & Attempted Murder | Criminal Defense Attorney in Eureka

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Summary of article content: Articles about Attempted murder – Sentencing Attempted murder. Criminal Attempts Act 1981, s.1(1). Effective from: 1 July 2021. Triable only on indictment. Maximum: Life imprisonment …
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Table of Contents:

Crown court menu

Overarching guidelines

Useful information and links

Step 1 – Determining the offence category

Step 2 – Starting point and category range

Step 3 – Consider any other factors which indicate a reduction such as assistance to the prosecution

Step 4 – Reduction for guilty pleas

Step 5 – Dangerousness

Step 6 – Required special sentence for certain offenders of particular concern

Step 7 – Totality principle

Step 8 – Compensation and ancillary orders

Step 9 – Reasons

Step 10 – Consideration for time spent on bail (tagged curfew)

Attempted murder – Sentencing

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Attempted Murder | New York Criminal Defense Lawyers Tilem & Associates

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Contents

Canada[edit]

United Kingdom[edit]

United States[edit]

Attempted Murder

An explanation of how Attempted Murder Charges work, police arrest and booking procedures, Defense Options for being charged with attempted murder, and how a Lawyer can help.

Of all the crimes punished by society, none are more serious than the crime of murder, the intentional and unlawful taking of a human life. Apart from the federal crimes of espionage and treason, murder is the only crime for which the death penalty is a potential punishment, though only in some states.

The crime of attempted murder can be charged when a person intends to commit murder and tries to carry out the killing but, for whatever reason, is unable to accomplish it. Like murder itself, attempted murder is a serious crime and one that comes with some of the most severe penalties in the criminal justice system.

Murder and Attempted Murder

Attempted murder is the failed or aborted attempt to murder another person. Just like other crimes, attempted murder consists of both an action and an intention. In attempted murder, a person must take a direct step towards the killing and must have the specific intent to kill that person.

The Action

In order to be convicted of attempted murder, a prosecutor must show that the accused took a “direct step” towards killing the targeted victim. Courts have explained the requirement for a direct step by stating that a person must go beyond merely preparing to commit the crime, and instead cross over into actually perpetrating it. Preparation is thinking about committing the crime, talking about it, or otherwise planning to do it, while perpetration is taking an action that puts the plan in motion and that would result in the intended killing. The kinds of actions that are enough to be a direct step differs from case to case, though there are a range of actions that can qualify, such as:

Stalking, tracking, or ambushing. This includes hiding out in waiting, tracking the victim down, or following the victim, hoping for an opportunity to commit the murder.

Luring. Includes trying to convince the victim to come to a specific place or take specific actions that will make it possible for the victim to be murdered.

Breaking-in. For example, unlawfully sneaking into a home, property, or other place where the victim is or thought to be.

Constructing. This might include collecting all the materials necessary for the murder, such as the parts of a bomb, and starting to put them together.

Soliciting. For instance, paying or convincing someone else to commit the murder, or even convincing an unknowing person to carry out a key part of the crime, such as unknowingly planting a bomb.

The Intention

You cannot accidentally commit attempted murder. To be convicted of attempted murder, a prosecutor must show that the accused specifically intended to commit the crime. The prosecutor must not only show that the accused intended to kill, but that the intent was to kill the specific victim.

Intent to act. You must have the intent to take the required actions. In other words, you have to intend to carry out the direct step. For example, if you are thinking about killing someone with a home-made bomb and, coincidentally, end up buying the pieces you need to make the bomb before you ever know how to make it, you don’t have the intent to commit the direct step. If, on the other hand, you research bomb making and then buy the material and put the bomb together, you have committed a direct step.

Intent to kill. To be convicted of attempted murder, the accused must intend to cause a specific harm, namely to kill the targeted victim. You cannot, for example, commit attempted murder if you intended to only maim, frighten, or disfigure someone. It can be difficult for the prosecutor to prove this point, but often, the circumstances of the crime lead naturally to this conclusion. For example, if you hit someone in the head with a lead pipe, that alone may be enough to show that you intended to kill the person. On the other hand, hitting someone in the legs is less lethal, and may not amount to attempted murder.

Defenses

Some prosecutions fail because the state’s attorney cannot prove that the accused committed a direct step, or that the accused had the specific intent to murder. But sometimes, the jury may not convict due to a particular defense offered by the defendant. Because an attempted murder does not result in the intended harm, specific defenses are available that are not always relevant in other cases.

Impossibility. An impossibility defense is one where the accused doesn’t deny having committed the acts, but instead claims that even if everything went to plan, there couldn’t have been a murder anyway. For example, the accused might claim that the gun used in the attempt was a non-functioning replica, so the murder could never have happened. However, some states have passed laws that abolish the impossibility defense, and in these states, it is not an accepted defense for any attempted crimes, including attempted murder.

Renunciation or withdrawal. Some states allow for a “renunciation” defense, sometimes known as withdrawal. This defense provides that even though the accused committed at least one direct step, the accused later decided not to commit the murder. Unlike showing that the prosecution failed to adequately prove one of the elements, the accused must prove that the crime was abandoned because the defendant intentionally stopped any and all efforts to continue it or took steps to prevent the murder from occurring.

Punishments for Attempted Murder

Because murder is the most serious crime and has the most serious penalties associated with it, attempted murder is also punished very harshly. However, while some states allow for the death penalty in murder cases, that punishment is not possible in attempted murder cases. Attempted murder is always a felony offense, and states typically impose a prison sentence equal to about half the sentence associated with a murder conviction.

Degrees. Like murder, attempted murder is charged as either a first degree or second degree offense. First degree attempted murder means the person intentionally, and with premeditation, tried to kill someone else; while second degree attempted murder means the accused acted without premeditation, or acted in a fit of passion. Second degree murder also includes deaths that occur while the accused is engaged in committing another felony, such as arson or burglary. (However, states can vary as to how they categorize first and second degree murder.)

Sentence. A conviction for first degree attempted murder brings a lengthier prison sentence than a conviction for second-degree attempted murder. First degree attempted murder is often punished with a life sentence, though the convicted does have the possibility to receive parole. Second degree attempted murder usually comes with a lengthy prison sentence, often ranging from between 5 to 15 years in prison.

Talk to a Lawyer

For anyone who faces a potential attempted murder charge, the need to speak to an experienced attorney is grave. Attempted murder is one of the most serious charges anyone can face, with the potential to ruin your life regardless of whether you are convicted. Only a qualified criminal defense attorney with years of courtroom experience and deep understanding of the law, local courtroom procedures, and criminal investigations can give you adequate legal advice. It is always in your best interest to speak to an attorney as soon as possible if you are facing any kind of criminal charges.

Criminal Defense Attorney in Eureka

Murder and Attempted Murder Charges

HUMBOLDT COUNTY MURDER DEFENSE

There is hardly a more serious crime than murder. The attorney at the Law Offices of Benjamin Okin is highly experienced in handling all levels of murder cases before charges are filed, at the pretrial proceedings and at trial.

HISTORY OF SUCCESS

Recent murder cases handled by Attorney Benjamin Okin:

1st/2nd Degree Murder. Pre-trial intervention led to filing of lesser charges. Litigated to Misdemeanor Battery charge. (People v SR)

1st Degree Murder – After Appeal of Life Without Possibility of Parole, Sentence. Client Received Life With Possibility of Parole (People v. SC)

2nd Degree Murder – Four Counts – Quadruple Homicide – Not Guilty all Four Counts of Murder, Convicted of Lesser Manslaughter Crime. After a successful appeal by our attorney, sentenced reduced and client served less than three years in a State Prison fire camp. (People v. CB).

and client served less than three years in a State Prison fire camp. (People v. CB). Attempted Murder – Multiple Firearm Shots at Close Range. Attempted Murder Charge Dismissed by Judge on Penal Code 995 Insufficient Evidence Motion. Client plead to assault with a deadly weapon for less than 7 years prison. (People v NT)

WHY DO YOU EVEN NEED AN ATTORNEY?

The prosecution will assign a senior attorney to any case in which the result of the crime is the death of another person. The prosecution will be under a lot of pressure from the deceased person’s family, loved ones, and community to get the maximum penalty allowed by law. You will need an attorney that can properly respond and defend you or your loved one. The potential consequences are too great not to do so.

MURDER AND ATTEMPTED MURDER CHARGES IN CA

Murder is the unlawfully taking of the life of another human being with malice aforethought. Malice is a mental state by which there is an express or implied intent to take the life of another person. If the is evidence that the express malice, then it is First Degree Murder. If implied malice, it is Second Degree Murder.

First Degree Murder – Penal Code 187

First-degree murder is the unlawful taking of the life of another human being with express malice aforethought. Express malice means that the act that caused the death of another was willful, deliberate, and premeditated. That is, you intended to and did cause death by your action.

Felony Murder Rule (Death in the Commission of Certain Felonies) – Penal Code 189

If during the commission or attempted commission of certain serious/violent felony offenses, a person other than an accomplice is killed, it is first-degree felony murder. This means that if you are involved in one of the specified serious or violent felonies, but are not the one who caused the death and/or had no intention of anyone getting hurt, you are still criminally liable for anyone’s death. Even if the cause of death was negligent or accidental, it is still first-degree felony murder. There is no requirement that the prosecutor prove any kind of malice in the act that caused death.

First Degree Murder (Use of Destructive Device Etc..) Penal Code 189

If death is caused by an explosive device, a destructive device, a weapon of mass destruction, armor penetrating bullets, poisoning, torturing, or lying in wait, it is murder in the first degree.

Punishment for First Degree Murder

The minimum sentence if convicted of first-degree murder is 25 years to life in prison without the possibility of parole. The reality is that if convicted of first-degree murder, you will spend the rest of your life in prison. Additionally, if there are special circumstances, the prosecutor can even elect to seek capital punishment or the death penalty.

Second Degree Murder (Implied Malice Murder) – Penal Code 188

Second-degree murder is the killing of another human being with an abandoned and malignant heart – but without being provoked (implied malice). That is, you were conscience that your conduct is reckless and endangered human life, you understood that the probable consequence of your reckless conduct is the death of another human being, and you disregarded that consequence by continuing to act in extremely reckless manner. An often used example of second-degree murder would be firing a loaded gun into a crowd of people. Driving under the influence of alcohol or drugs causing the death of another person is another common example of where a person might be charged with second-degree murder (Watson Murder)

Attempted Murder (Penal Code 664/187)

Attempted murder is where you intended to kill another person and took at least one direct step towards killing that person. A direct step might by shooting a gun at another person but missing, stabbing another person in the chest, hiring a third person to kill another human being, or rigging explosives that fail to detonate. Punishment for attempted murder where the intent to kill another person was premeditated is life in prison with the possibility of being paroled. The maximum punishment for attempted murder where the intent to kill was not premeditated is 9 years in state prison.

Manslaughter (Penal Code 192)

Manslaughter is the killing of another human being without malice. There are two types of manslaughter; voluntary and involuntary. Voluntary manslaughter is a death caused in a sudden quarrel or in the heat of passion. The maximum punishment for voluntary manslaughter is 11 years in prison. Involuntary manslaughter is negligently the causing death of another human being. The maximum punishment for involuntary manslaughter is four years of incarceration.

Vehicular Manslaughter is driving a vehicle in an unlawful or dangerous manner, not amounting to a felony, causing the death of another person. If the unlawful or dangerous driving is done with gross negligence, then the maximum punishment is six years in state prison. If the unlawful act is done with ordinary negligence, the maximum punishment is one year in county jail.

Sentencing Enhancements (Penal Code 12022 et seq)

Aside from the punishment from the act of killing another human being alone, there are often sentencing enhancements that need to be factored into a person’s maximum time they can be incarcerated. These sentencing enhancements are added on top of whatever punishment is ordered from the particular crime if committed in commission of a felony:

Personal possession of firearm – add 1-year incarceration – PC 12022(a)(1)

Causing great bodily injury or death – add 3 year in prison – Pc 12022.7

Personal use of a firearm – add 3, 4, or 10 years in prison- PC 12022.5

Personal use of a firearm during certain serious/violent felonies – add 10 years in prison – PC 12022.53(b)

Discharge of a firearm during certain serious/violent felonies – add 20 years in prison- PC 12022.53(c)

Discharge of firearm during certain serious/violent felony causing great bodily injury/death – add 25 years to life in prison – PC 12022.53(d)

HUMBOLDT COUNTY’S PREMIER CRIMINAL DEFENSE FIRM

If you or a loved one is being sought, questioned or charged with any degree of murder or manslaughter, it is important to contact a murder qualified attorney to get started on your case today. Law enforcement dedicates a substantial amount of time and resources to gathering evidence to secure a conviction in court.

You or your loved one needs an experienced attorney to immediately start working on your behalf. We are Humboldt County’s Premier Criminal Defense Firm. Benjamin Okin has extensive direct and indirect experience in defending persons accused of murder and manslaughter.

Contact us at (888) 586-7920 today!

Attempted murder – Sentencing

Triable only on indictment

Maximum: Life imprisonment

Offence range: 3 – 40 years’ custody

This is a Schedule 19 offence for the purposes of sections 274 and 285 (required life sentence for offence carrying life sentence) of the Sentencing Code.

For offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15 for the purposes of sections 273 and 283 (life sentence for second listed offence) of the Sentencing Code.

This is a specified offence for the purposes of sections 266 and 279 (extended sentence for certain violent, sexual or terrorism offences) of the Sentencing Code.

Where the offence has a terrorist connection this is an offence listed in Schedule 13 for the purposes of sections 265 and 278 (required special sentence for certain offenders of particular concern) of the Sentencing Code.

Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

Applicability In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after the effective date of this guideline, regardless of the date of the offence.* Section 59(1) of the Sentencing Code provides that: “Every court – must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender’s case, and must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so.” This guideline applies only to offenders aged 18 and older. General principles to be considered in the sentencing of children and young people are in the Sentencing Council definitive guideline, Overarching Principles – Sentencing Children and Young People. *The maximum sentence that applies to an offence is the maximum that applied at the date of the offence.

Step 1 – Determining the offence category

The characteristics below are indications of the level of culpability that may attach to the offender’s conduct. Where there are characteristics present which fall into both higher and lower categories, the court must carefully weigh those characteristics to reach a fair assessment of the category which best reflects the offender’s overall culpability in all the circumstances of the case. The court may then adjust the starting point for that category to reflect the presence of characteristics from another category.

Culpability demonstrated by one or more of the following: A – Very high culpability Abduction of the victim with intent to murder

Attempted murder of a child

Offence motivated by or involves sexual or sadistic conduct

Offence involves the use of a firearm or explosive or fire

Offence committed for financial gain

Attempted murder of a police officer or prison officer in the course of their duty

Offence committed for the purpose of advancing a political, religious, racial or ideological cause

Offence intended to obstruct or interfere with the course of justice

Offence motivated by racial or religious hostility or hostility related to victim’s sexual orientation, disability or transgender identity B – High culpability Offender took a knife or other weapon to the scene intending to commit any offence or have it available to use as a weapon, and used that knife or other weapon in committing the offence.

Planning or premeditation of murder C – Medium culpability Use of weapon not in category A or B

Lack of premeditation/spontaneous attempt to kill D – Lesser culpability Excessive self defence

Offender acted in response to prolonged or extreme violence or abuse by victim

Offender’s responsibility substantially reduced by mental disorder or learning disability

Genuine belief by the offender that the offence was an act of mercy

Harm Category 1 Injury results in physical or psychological harm resulting in lifelong dependency on third party care or medical treatment

Offence results in a permanent, irreversible injury or psychological condition which has a substantial and long term effect on the victim’s ability to carry out their normal day to day activities or on their ability to work Category 2 Serious physical or psychological harm not in category 1 Category 3 All other cases

Step 2 – Starting point and category range

Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range below before further adjustment for aggravating or mitigating features, set out below.

Sentencers should be aware that there is evidence of a disparity in sentence outcomes for this offence which indicates that for Black and Asian offenders custodial sentence lengths have on average been longer than for White offenders. There may be many reasons for these differences, but in order to apply the guidelines fairly sentencers may find useful information and guidance at Chapter 8 paragraphs 185 to 193 of the Equal Treatment Bench Book.

For offences involving an extreme nature of one or more very high or high culpability factors a sentence higher than the offence range or an extended or life sentence may be appropriate. Extended and life sentences are dealt with at Step 5 of the guideline.

Harm Culpability A B C D Harm 1 Starting point

35 years’ custody Starting point

30 years’ custody Starting point

25 years’ custody Starting point

14 years’ custody Category range

30 – 40 years’ custody Category range

25 – 35 years’ custody Category range

20 – 30 years’ custody Category range

10 – 20 years’ custody Harm 2

Starting point

30 years’ custody Starting point

25 years’ custody Starting point

20 years’ custody Starting point

8 years’ custody Category range

25 – 35 years’ custody Category range

20 – 30 years’ custody Category range

15 – 25 years’ custody Category range

5 – 12 years’ custody Harm 3 Starting point

25 years’ custody Starting point

20 years’ custody Starting point

10 years’ custody Starting point

5 years’ custody Category range

20 – 30 years’ custody Category range

15 – 25 years’ custody Category range

7 – 15 years’ custody Category range

3 – 6 years’ custody

Note: The table is for a single offence against a single victim. Where another offence or offences arise out of the same incident or facts, concurrent sentences reflecting the overall criminality of offending will ordinarily be appropriate: please refer to the Totality guideline and step 7 of this guideline.

Custodial sentences Sentencing flowcharts are available at Imposition of Community and Custodial Sentences definitive guideline. The approach to the imposition of a custodial sentence should be as follows: 1) Has the custody threshold been passed? A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.

There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.

The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences. 2) Is it unavoidable that a sentence of imprisonment be imposed? Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.

For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing. 3) What is the shortest term commensurate with the seriousness of the offence? In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release. 4) Can the sentence be suspended? A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed. The following factors should be weighed in considering whether it is possible to suspend the sentence: Factors indicating that it would not be appropriate to suspend a custodial sentence Factors indicating that it may be appropriate to suspend a custodial sentence Offender presents a risk/danger to the public Realistic prospect of rehabilitation Appropriate punishment can only be achieved by immediate custody Strong personal mitigation History of poor compliance with court orders Immediate custody will result in significant harmful impact upon others The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate. Pre-sentence report Whenever the court reaches the provisional view that: the custody threshold has been passed; and, if so

the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence; the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case. Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report. Suspended Sentences: General Guidance i) The guidance regarding pre-sentence reports applies if suspending custody. ii) If the court imposes a term of imprisonment of between 14 days and 2 years (subject to magistrates’ courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the ‘operational period’). The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months. iii) Where the court imposes two or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and 2 years (subject to magistrates’ courts sentencing powers). iv) When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders, see the guideline on Imposition of Community and Custodial Sentences. v) A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.

Factors increasing seriousness Statutory aggravating factors: Previous convictions, Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence Guidance on the use of previous convictions The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence: Section 65 of the Sentencing Code states that: (1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions. (2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having 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) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated. Previous convictions are considered at step two in the Council’s offence-specific guidelines. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences. Previous convictions are normally relevant to the current offence when they are of a similar type. Previous convictions of a type different from the current offence may be relevant where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are less relevant to the offender’s culpability for the current offence and less likely to be predictive of future offending. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence 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

of the offence to which the conviction relates and its to the current offence; and b) the that has elapsed since the conviction Offence committed whilst on bail Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence Section 64 of the Sentencing Code states: In considering the seriousness of any offence committed while the offender was on bail, the court must – (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.

Offence demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation, or transgender identity Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence See below for the statutory provisions. Note the requirement for the court to state that the offence has been aggravated by the relevant hostility. Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role. Section 66 of the Sentencing Code states: Hostility (1) This section applies where a court is considering the seriousness of an offence which is aggravated by— (a) racial hostility, (b) religious hostility, (c) hostility related to disability, (d) hostility related to sexual orientation, or (e) hostility related to transgender identity. This is subject to subsection (3). (2) The court— (a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and (b) must state in open court that the offence is so aggravated. (3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) 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 victim’s membership (or presumed membership) of a racial group, (ii) the victim’s membership (or presumed membership) of a religious group, (iii) a disability (or presumed disability) of the victim, (iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be) (v) the victim being (or being presumed to be) transgender, or (b) the offence was motivated (wholly or partly) by— (i) hostility towards members of a racial group based on their membership of that group, (ii) hostility towards members of a religious group based on their membership of that group, (iii) hostility towards persons who have a disability or a particular disability, (iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be) (v) hostility towards persons who are transgender. (5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6) In this section— (a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins; (b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief; (c) “membership” in relation to a racial or religious group, includes association with members of that group; (d) “disability” means any physical or mental impairment; (e) 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; (f) “presumed” means presumed by the offender.

Other aggravating factors: Offence committed against those working in the public sector or providing a service to the public Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence This reflects: the fact that people in public facing roles are more exposed to the possibility of harm and consequently more vulnerable and/or the fact that someone is working in the public interest merits the additional protection of the courts. This applies whether the victim is a public or private employee or acting in a voluntary capacity. Care should be taken to avoid double counting where the statutory aggravating factor relating to emergency workers or to those providing a public service, performing a public duty or providing services to the public applies.

Offence committed in prison Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence Offences committed in custody are more serious because they undermine the fundamental need for control and order which is necessary for the running of prisons and maintaining safety. Generally the sentence for the new offence will be consecutive to the sentence being served as it will have arisen out of an unrelated incident. The court must have regard to the totality of the offender’s criminality when passing the second sentence, to ensure that the total sentence to be served is just and proportionate. Refer to the Totality guideline for detailed guidance. Care should be taken to avoid double counting matters taken into account when considering previous convictions.

Offence committed in a domestic context Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence Refer to the Overarching Principles: Domestic Abuse Definitive Guideline

History of violence or abuse towards victim by offender (where not taken into account at step one)

Abuse of power and/or position of trust Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence A close examination of the facts is necessary and a clear justification should be given if abuse of trust is to be found. In order for an abuse of trust to make an offence more serious the relationship between the offender and victim(s) must be one that would give rise to the offender having a significant level of responsibility towards the victim(s) on which the victim(s) would be entitled to rely. Abuse of trust may occur in many factual situations. Examples may include relationships such as teacher and pupil, parent and child, employer and employee, professional adviser and client, or carer (whether paid or unpaid) and dependant. It may also include ad hoc situations such as a late-night taxi driver and a lone passenger. These examples are not exhaustive and do not necessarily indicate that abuse of trust is present. Additionally an offence may be made more serious where an offender has abused their position to facilitate and/or conceal offending. Where an offender has been given an inappropriate level of responsibility, abuse of trust is unlikely to apply.

Gratuitous degradation of victim Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence Where an offender deliberately causes additional harm to a victim over and above that which is an essential element of the offence – this will increase seriousness. Examples may include, but are not limited to, posts of images on social media designed to cause additional distress to the victim. Where any such actions are the subject of separate charges, this should be taken into account when assessing totality. When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

Others put at risk of harm by the offence Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence Where there is risk of harm to other(s) not taken in account at step one and not subject to a separate charge, this makes the offence more serious. Dealing with a risk of harm involves consideration of both the likelihood of harm occurring and the extent of it if it does. Where any such risk of harm is the subject of separate charges, this should be taken into account when assessing totality. When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

Use of duress or threats against another person to facilitate the commission of the offence

Actions after the event (including but not limited to attempts to cover up/conceal evidence) Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence The more sophisticated, extensive or persistent the actions after the event, the more likely it is to increase the seriousness of the offence. When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct. Where any such actions are the subject of separate charges, this should be taken into account when assessing totality.

Steps taken to prevent the victim from seeking or receiving medical assistance

Commission of offence whilst under the influence of alcohol/drugs Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending . This applies regardless of whether the offender is under the influence of legal or illegal substance(s). In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction. An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.

Offence committed whilst on licence or subject to post sentence supervision Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending. The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration. Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality. Care should be taken to avoid double counting matters taken into account when considering previous convictions. When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

Failure to comply with current court orders Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence Commission of an offence while subject to a relevant court order makes the offence more serious. The extent to which the offender has complied with the conditions of an order (including the time that has elapsed since its commencement) will be a relevant consideration. Where the offender is dealt with separately for a breach of an order regard should be had to totality Care should be taken to avoid double counting matters taken into account when considering previous convictions. When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

Factors reducing seriousness or reflecting personal mitigation No previous convictions or no relevant/recent convictions Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence. Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending. When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders). In general the more serious the previous offending the longer it will retain relevance.

Significant degree of provocation (including due to prolonged and/or excessive stress linked to circumstances of offence)

History of significant violence or abuse towards the offender by the victim (where not taken into account at step one)

Attempt by offender to give assistance/summon help when the attempted murder failed

Remorse Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction). Lack of remorse should never be treated as an aggravating factor. Remorse can present itself in many different ways. A simple assertion of the fact may be insufficient, and the offender’s demeanour in court could be misleading, due to nervousness, a lack of understanding of the system, a belief that they have been or will be discriminated against, peer pressure to behave in a certain way because of others present, a lack of maturity etc. If a PSR has been prepared it may provide valuable assistance in this regard.

Good character and/or exemplary conduct Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm This factor may apply whether or not the offender has previous convictions. Evidence that an offender has demonstrated positive good character through, for example, charitable works may reduce the sentence. However , this factor is less likely to be relevant where the offending is very serious. Where an offender has used their good character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

Age and/or lack of maturity Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm Age and/or lack of maturity can affect: the offender’s responsibility for the offence and the effect of the sentence on the offender. Either or both of these considerations may justify a reduction in the sentence. The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater). In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to: evaluate the consequences of their actions limit impulsivity limit risk taking Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers. Immaturity can also result from atypical brain development. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development. An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody. An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support. There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct. Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties. Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending. Where the offender is a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17). Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3). When considering a custodial or community sentence for a young adult the Probation Service should address these issues in a PSR.

Mental disorder or learning disability, where not linked to the commission of the offence (where not taken into account at step one) Effective from: 01 October 2020 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence Refer to the Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline. Note in particular paragraph 5 for Black, Asian and Minority Ethnic offenders.

Sole or primary carer for dependent relative(s) Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline. For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing. Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended. For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight. When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements. In addition when sentencing an offender who is pregnant relevant considerations may include: any effect of the sentence on the health of the offender and any effect of the sentence on the unborn child The court should ensure that it has all relevant information about dependent children before deciding on sentence. When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done. When considering a community or custodial sentence for an offender who has, or may have, caring responsibilities the court should ask the Probation Service to address these issues in a PSR. Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 130 to 136)

Serious medical conditions requiring urgent, intensive or long-term treatment Effective from: 01 October 2019 Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case. However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate. There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending. A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG). But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose.

Step 3 – Consider any other factors which indicate a reduction, such as assistance to the prosecution

The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 4 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the Reduction in Sentence for a Guilty Plea guideline.

Step 5 – Dangerousness

The court should consider:

1) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose a life sentence (sections 274 and 285)

2) whether having regard to sections 273 and 283 of the Sentencing Code it would be appropriate to impose a life sentence.

3) whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it would be appropriate to impose an extended sentence (sections 266 and 279)

When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term.

Step 6 – Required special sentence for certain offenders of particular concern

Where the offence has a terrorist connection and satisfies the criteria in section 278 of the Sentencing Code and the court does not impose a sentence of imprisonment for life or an extended sentence, but does impose a period of imprisonment, the term of the sentence must be equal to the aggregate of the appropriate custodial term and a further period of 1 year for which the offender is to be subject to a licence (sections 265 and 278 of the Sentencing Code).

Step 7 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour. See Totality guideline.

Step 8 – Compensation and ancillary orders

In all cases, the court should consider whether to make compensation and/or other ancillary orders. The court must give reasons if it decides not to order compensation (Sentencing Code, s.55).

Step 9 – Reasons

Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 10 – Consideration for time spent on bail (tagged curfew)

The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code.

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