This guideline should be read alongside the Sentencing children and young people – overarching principles definitive guideline, which provides comprehensive guidance on the sentencing principles and welfare considerations that the court should have in mind when sentencing children and young people.
This offence is subject to statutory minimum sentencing provisions. See Step 5 for further details.
The first step in determining the sentence is to assess the seriousness of the offence. This assessment is made by considering the nature of the offence and any aggravating and mitigating factors relating to the offence itself. The fact that a sentence threshold is crossed does not necessarily mean that that sentence should be imposed.
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.
The Sentencing Council issues this definitive guideline in accordance with section 120 of the Coroners and Justice Act 2009. This guideline applies to all children or young people, who are sentenced on or after 1 June 2018, 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."
General principles to be considered in the sentencing of youths are in the Sentencing Guidelines Council’s definitive guideline, Sentencing children and young people - overarching principles.
Step 1 – Offence seriousness – nature of the offence
The lists below give examples of the type of culpability and harm factors that may indicate that a particular threshold of sentence has been crossed.
A non-custodial sentence* may be the most suitable disposal where one or more of the following factors apply
- Possession of weapon falls just short of reasonable excuse
- No/minimal risk of weapon being used to threaten or cause harm
- Fleeting incident and no/minimal distress
A custodial sentence or youth rehabilitation order with intensive supervision and surveillance* or fostering* may be justified where one or more of the following factors apply
- Possession of a bladed article whether produced or not
- Possession of a highly dangerous weapon† whether produced or not
- Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity
- Prolonged incident and serious alarm/distress
- Offence committed at a school or other place where vulnerable people may be present
* Where the child or young person appears in the magistrates’ court, and the conditions for a compulsory referral order apply, a referral order must be imposed unless the court is considering imposing a discharge, hospital order or custody.
† NB an offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury, or is intended by the person having it with him for such use’. A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.
Step 2 – Offence seriousness – aggravating and mitigating factors
To complete the assessment of seriousness the court should consider the aggravating and mitigating factors relevant to the offence.
Aggravating factors
Statutory aggravating factors
- Previous findings of guilt, having regard to a) the nature of the offence to which the finding of guilt relates and its relevance to the current offence; and b) the time that has elapsed since the finding of guilt(unless the convictions will be relevant for the purposes of the statutory minimum sentencing provisions – see step five)
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 of relevance to the current offence when they are of a similar type.
- Previous convictions of a type different from the current offence may be of relevance 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 of less relevance 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
- 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.
Other aggravating factors (non-exhaustive)
- Significant degree of planning/premeditation
- Deliberate humiliation of victim, including but not limited to filming of the offence, deliberately committing the offence before a group of peers with the intent of causing additional distress or circulating details/photos/videos etc of the offence on social media or within peer groups
- Victim is particularly vulnerable due to factors including but not limited to age, mental or physical disability
- Offence was committed as part of a group
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 mere membership of a group (two or more persons) should not be used to increase the sentence, but where the offence was committed as part of a group this will normally make it more serious because:
- the harm caused (both physical or psychological) or the potential for harm may be greater and/or
- the culpability of the offender may be higher (the role of the offender within the group will be a relevant consideration).
Culpability based on role in group offending could range from:
- Higher culpability indicated by a leading role in the group and/or the involvement by the offender of others through coercion, intimidation or exploitation, to
- Lower culpability indicated by a lesser or subordinate role under direction and/or involvement of the offender through coercion, intimidation or exploitation.
Courts should be alert to factors that suggest that an offender may have been the subject of coercion, intimidation or exploitation (including as a result of domestic abuse, trafficking or modern slavery) which the offender may find difficult to articulate, and where appropriate ask for this to be addressed in a PSR.
Where the offending is part of an organised criminal network, this will make it more serious, and the role of the offender in the organisation will also be relevant.
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 group offending.
- Attempts to conceal identity
- Steps taken to prevent reporting the incident/seeking assistance
- Commission of offence whilst under the influence of alcohol or 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 against those working in the public sector or providing a service to the public
Mitigating factors (non-exhaustive)
- No findings of guilt or no relevant/recent findings of guilt
- Good character and/or exemplary conduct
Effective from: 01 October 2019 (revised 1 April 2024)
Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
Evidence that an offender has demonstrated a positive side to their character may reduce the sentence.
This factor may apply whether or not the offender has previous convictions.
However:
- This factor is less likely to be relevant where the offending is very serious
- Where an offender has used their positive character or status to facilitate or conceal the offending it could be treated as an aggravating factor.
- Participated in offence due to bullying, peer pressure, coercion or manipulation
- Little or no planning
- Co-operation with the police
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
Assisting or cooperating with the investigation and /or making pre-court admissions may ease the effect on victims and witnesses and save valuable police time justifying a reduction in sentence (separate from any guilty plea reduction).
Step 3 – Personal mitigation
Having assessed the offence seriousness the court should then consider the mitigation personal to the child or young person to determine whether a custodial sentence or a community sentence is necessary. The effect of personal mitigation may reduce what would otherwise be a custodial sentence to a non-custodial one or a community sentence to a different means of disposal.
Personal mitigating factors (non-exhaustive)
- Particularly young or immature child or young person (where it affects their responsibility)
- Communication or learning disabilities or mental health concerns
- Unstable upbringing including but not limited to:
- time spent looked after
- lack of familial presence or support
- disrupted experiences in accommodation or education
- exposure to drug/alcohol abuse, familial criminal behaviour or domestic abuse
- victim of neglect or abuse, or exposure to neglect or abuse of others
- experiences of trauma or loss
- Determination and/or demonstration of steps taken to address offending behaviour
- Child or young person in education, training or employment
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 part one, section five of the Sentencing children and young people – overarching principles definitive guideline. The reduction in sentence for a guilty plea can be taken into account by imposing one type of sentence rather than another; for example:
- by reducing a custodial sentence to a community sentence, or
- by reducing a community sentence to a different means of disposal.
Alternatively the court could reduce the length or severity of any punitive requirements attached to a community sentence.
See the Sentencing children and young people – overarching principles definitive guideline for details of other available sentences including Referral Orders and Reparation Orders.
Step 5 – Statutory minimum sentencing provisions
Threatening with Bladed Articles or Offensive Weapons
When sentencing young people aged 16 or over at the date of conviction for these offences a court must impose a sentence of at least 4 months Detention and Training Order unless:
- (If the offence was committed on or after 28 June 2022) the court is of the opinion that there are exceptional circumstances which relate to the offence or to the young person, and justify not doing so; or
- (If the offence was committed before 28 June 2022) the court is of the opinion that there are particular circumstances relating to the offence or the young person which make it unjust to do so in all the circumstances.
Having Bladed Articles or Offensive Weapons
When sentencing young people who were aged 16 or over on the date of the offence for the offences of:
- having an offensive weapon in a public place;
- having an article with a blade/point in a public place;
- having an offensive weapon on education premises; and
- having an article with blade/point on education premises
a court must impose a sentence of at least 4 months’ Detention and Training Order where this is a second or further relevant offence unless:
- (If the offence was committed on or after 28 June 2022) the court is of the opinion that there are exceptional circumstances which relate to any of the offences or to the young person, and justify not doing so; or
- (If the offence was committed before 28 June 2022) the court is of the opinion that there are particular circumstances relating to the offence, the previous offence or the young person which make it unjust to do so in all the circumstances.
A ‘relevant offence’ includes those offences listed above and the following offences:
- threatening with an offensive weapon in a public place;
- threatening with an article with a blade/point in a public place;
- threatening with an article with a blade/point on education premises; and
- threatening with an offensive weapon on education premises.
In considering whether there are exceptional circumstances that would justify not imposing the minimum term the court must have regard to:
- the particular circumstances which relate to any of the offences and
- the particular circumstances of the offender.
either of which may give rise to exceptional circumstances.
Where the issue of exceptional circumstances has been raised the court should give a clear explanation as to why those circumstances have or have not been found.
Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.
Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence for that young person.
The offence
Having reached this stage of the guideline the court should have made a provisional assessment of the seriousness of the offence. Where the court has determined that the offence seriousness falls far below the custody threshold the court may consider that this gives rise to exceptional circumstances that justify not imposing the statutory minimum sentence. Where the court is considering a statutory minimum sentence as a result of a second or further relevant offence, consideration should be given to the seriousness of the previous offence(s) and the period of time that has elapsed between offending. Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider that this gives rise to exceptional circumstances that justify not imposing the statutory minimum sentence.
The young person
The statutory obligation to have regard to the welfare of a young person includes the obligation to secure proper provision for education and training, to remove the young person from undesirable surroundings where appropriate, and the need to choose the best option for the young person taking account of the circumstances of the offence. In having regard to the welfare of the young person, a court should ensure that it considers:
- any mental health problems or learning difficulties/disabilities;
- any experiences of brain injury or traumatic life experience (including exposure to drug and alcohol abuse) and the developmental impact this may have had;
- any speech and language difficulties and the effect this may have on the ability of the young person (or any accompanying adult) to communicate with the court, to understand the sanction imposed or to fulfil the obligations resulting from that sanction;
- the vulnerability of young people to self harm, particularly within a custodial environment; and
- the effect on young people of experiences of loss and neglect and/or abuse.
In certain cases the concerns about the welfare of the young person may be so significant that the court considers that this gives rise to exceptional circumstances that justify not imposing the statutory minimum sentence.
Where exceptional circumstances are found
If there are exceptional circumstances that justify not imposing the statutory minimum sentence then the court must impose an alternative sentence.
In considering whether a statutory minimum sentence would be ‘unjust in all of the circumstances’ the court must have regard to the particular circumstances of the offence, any relevant previous offence and the young person.
Where the factual circumstances are disputed, the procedure should follow that of a Newton hearing: see Criminal Practice Directions 9.3.3 Sentencing.
If the circumstances make it unjust to impose the statutory minimum sentence then the court must impose an alternative sentence.
The offence
Having reached this stage of the guideline the court should have made a provisional assessment of the seriousness of the offence. Where the court has determined that the offence seriousness falls far below the custody threshold the court may consider it unjust to impose the statutory minimum sentence. Where the court is considering a statutory minimum sentence as a result of a second or further relevant offence, consideration should be given to the seriousness of the previous offence(s) and the period of time that has elapsed between offending. Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider it unjust to impose the statutory minimum sentence.
The young person
The statutory obligation to have regard to the welfare of a young person includes the obligation to secure proper provision for education and training, to remove the young person from undesirable surroundings where appropriate, and the need to choose the best option for the young person taking account of the circumstances of the offence. In having regard to the welfare of the young person, a court should ensure that it considers:
- any mental health problems or learning difficulties/disabilities;
- any experiences of brain injury or traumatic life experience (including exposure to drug and alcohol abuse) and the developmental impact this may have had;
- any speech and language difficulties and the effect this may have on the ability of the young person (or any accompanying adult) to communicate with the court, to understand the sanction imposed or to fulfil the obligations resulting from that sanction;
- the vulnerability of young people to self harm, particularly within a custodial environment; and
- the effect on young people of experiences of loss and neglect and/or abuse.
In certain cases the concerns about the welfare of the young person may be so significant that the court considers it unjust to impose the statutory minimum sentence.
Step 6 – Review the sentence
The court must now review the sentence to ensure it is the most appropriate one for the child or young person. This will include an assessment of the likelihood of reoffending and the risk of causing serious harm. A report from the Youth Offending Team may assist.
See the Sentencing children and young people – overarching principles definitive guideline for comprehensive guidance on the sentencing principles and welfare considerations that the court should have in mind when sentencing children and young people, and for the full range of sentences available to the court.
Referral orders
In cases where children or young people have offended for the first time and have pleaded guilty to committing an offence which is on the cusp of the custody threshold, youth offending teams (YOT) should be encouraged to convene a Youth Offender Panel prior to sentence (sometimes referred to as a “pseudo-panel” or “pre-panel”) where the child or young person is asked to attend before a panel and agree an intensive contract. If that contract is placed before the sentencing youth court, the court can then decide whether it is sufficient to move below custody on this occasion.
The proposed contract is not something the court can alter in any way; the court will still have to make a decision between referral order and custody but can do so on the basis that if it makes a referral order it can have confidence in what that will entail in the particular case. The court determines the length of the order but a Referral Order Panel determines the requirements of the order.
| Offence seriousness | Suggested length of referral order |
|---|---|
| Low | 3 – 5 months |
| Medium | 5 – 7 months |
| High | 7 – 9 months |
| Very high | 10 – 12 months |
The YOT may propose certain requirements and the length of these requirements may not correspond to the above table; if the court feels these requirements will best achieve the aims of the youth justice system then they may still be imposed.
Youth Rehabilitation Order (YRO)
The following table sets out the different levels of intensity that are available under a Youth Rehabilitation Order. The level of intensity and the content of the order will depend upon the court’s assessment of seriousness.
| Requirements of order | ||
|---|---|---|
| Standard | Low likelihood of re-offending and a low risk of serious harm | Primarily seek to repair harm caused through, for example:
|
| Enhanced | Medium likelihood of re-offending or a medium risk of serious harm | Seek to repair harm caused and to enable help or change through, for example:
|
| Intensive | High likelihood of re-offending or a very high risk of serious harm | Seek to ensure the control of and enable help or change for the child or young person through, for example:
|
YRO with Intensive Supervision and Surveillance (ISS) or YRO with fostering
A YRO with an ISS or fostering requirement can only be imposed where the court is of the opinion that the offence has crossed the custody threshold and custody is merited. The YRO with ISS includes an extended activity requirement, a supervision requirement and curfew. The YRO with fostering requires the child or young person to reside with a local authority foster parent for a specified period of up to 12 months.
Custodial Sentences
If a custodial sentence is imposed, the court must state its reasons for being satisfied that the offence is so serious that no other sanction would be appropriate and, in particular, why a YRO with ISS or fostering could not be justified.
Where a custodial sentence is unavoidable the length of custody imposed must be the shortest commensurate with the seriousness of the offence. The court may want to consider the equivalent adult guideline in order to determine the appropriate length of the sentence.
If considering the adult guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the appropriate adult sentence for those aged 15 – 17 and allow a greater reduction for those aged under 15. This is only a rough guide and must not be applied mechanistically. The individual factors relating to the offence and the child or young person are of the greatest importance and may present good reason to impose a sentence outside of this range.