Engaging in sexual activity in the presence of a person with mental disorder impeding choice/ Causing a person, with mental disorder impeding choice, to watch a sexual act

Category 1

• Causing victim to view extreme pornography
• Causing victim to view indecent/ prohibited images of children
• Engaging in, or causing a victim to view live, sexual activity involving sadism/violence/sexual activity with an animal/ a child

Category 2

Engaging in, or causing a victim to view images of or view live, sexual activity involving:

• penetration of vagina or anus (using body or object)
• penile penetration of mouth
• masturbation

Category 3

• Factor(s) in categories 1 and 2 not present

Culpability A

• Significant degree of planning
• Offender acts together with others in order to commit the offence
• Use of alcohol/drugs on victim to facilitate the offence
• Grooming behaviour used against victim
• Abuse of trust

  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.

• Use of threats (including blackmail)
• Commercial exploitation and/or motivation
• Offence racially or religiously aggravated
• Offence motivated by, or demonstrating, hostility to the victim based on his or her sexual orientation (or presumed sexual orientation) or transgender identity (or presumed transgender identity)
• Offence motivated by, or demonstrating, hostility to the victim based on his or her disability (or presumed disability)

Culpability B

• Factor(s) in category A not present

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.

  1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
  2. 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.
  3. Previous convictions are normally of relevance to the current offence when they are of a similar type.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
  10. 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.
  11. 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.
  12. 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.
  13. 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
  having regard 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
• 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

• Location of 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

  • In general, an offence is not made more serious by the location of the offence except in ways taken into account by other factors in this guideline (such as planning, vulnerable victim, offence committed in a domestic context, maximising distress to victim, others put at risk of harm by the offending, offence committed in the presence of others). Care should be taken to avoid double counting.
  • Courts should be cautious about aggravating an offence by reason of it being committed for example in a crowded place or in an isolated place unless it also indicates increased harm or culpability not already accounted for.
  • An offence may be more serious when it is committed in places in which there is a particular need for discipline or safety such as prisons, courts, schools or hospitals.
• Timing of 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

  • In general, an offence is not made more serious by the timing of the offence except in ways taken into account by other factors in this guideline (such as planning, vulnerable victim, offence committed in a domestic context, maximising distress to victim, others put at risk of harm by the offending, offence committed in the presence of others). Care should be taken to avoid double counting.
  • Courts should be cautious about aggravating an offence by reason of it being committed for example at night, or in broad daylight unless it also indicates increased harm or culpability not already accounted for.

   

• 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.

• Offence committed whilst on licence

  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.

• Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution

  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.

• Attempts to dispose of or 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.

• 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.

   

• 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.
• Remorse

  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

  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.

  The court should be aware that the offender’s demeanour in court or the way they articulate their feelings of remorse may be affected by, for example:

  • nervousness
  • a lack of understanding of the system
  • mental disorder
  • learning disabilities
  • communication difficulties (including where English is not their first language)
  • a belief that they have been or will be discriminated against
  • peer pressure to behave in a certain way because of others present
  • age and/or a lack of maturity etc.

  If a PSR has been prepared it may provide valuable assistance in this regard.

  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.

• Positive character and/or exemplary conduct (regardless of previous convictions)*

  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.

   

• Age and/or lack of maturity (which may be applicable to offenders aged 18-25)

  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

  Where a person has committed the offence under the age of 18, regard should be had to the overarching guideline for sentencing children and young people. That guideline may also be relevant to offending by young adults.

  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 is care experienced or 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, particularly where linked to the commission of the offence

  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.

• Demonstration of steps taken to address offending behaviour

  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 or those inherent in the offence

  Where offending is driven by or closely associated with drug or alcohol abuse (for example stealing to feed a habit, or committing acts of disorder or violence whilst drunk) a commitment to address the underlying issue (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify a reduction in sentence.  This will be particularly relevant where the court is considering whether to impose a sentence that focuses on rehabilitation.

  Similarly, a commitment to address other underlying issues that may influence the offender’s behaviour (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify the imposition of a sentence that focusses on rehabilitation.

  The court will be assisted by a PSR in making this assessment.

• Physical disability or serious medical condition 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.
• Difficult and/or deprived background or personal circumstances

  Effective from: 01 April 2024

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  The court may be assisted by a pre-sentence report in assessing whether there are factors in the offender’s background or current personal circumstances which may be relevant to sentencing. Such factors may be relevant to:

  • the offender’s responsibility for the offence and/or
  • the effect of the sentence on the offender.

  Courts should consider that different groups within the criminal justice system have faced multiple disadvantages which may have a bearing on their offending. Such disadvantages include but are not limited to:

  • experience of discrimination
  • negative experiences of authority
  • early experience of loss, neglect or abuse
  • early experience of offending by family members
  • being care experienced or a care leaver
  • negative influences from peers
  • difficulties relating to the misuse of drugs and/or alcohol (but note: being voluntarily intoxicated at the time of the offence is an aggravating factor)
  • low educational attainment
  • insecure housing
  • mental health difficulties
  • poverty
  • direct or indirect victim of domestic abuse

  There are a wide range of personal experiences or circumstances that may be relevant to offending behaviour. The Equal Treatment Bench Book contains useful information on social exclusion and poverty (see in particular Chapter 11, paragraphs 58 to 71). The Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline may also be of relevance.

• Prospects of or in work, training or education

  Effective from: 01 April 2024

  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.

  Where an offender is in, or has a realistic prospect of starting, work, education or training this may indicate a willingness to rehabilitate and desist from future offending.

  Similarly, the loss of employment, education or training opportunities may have a negative impact on the likelihood of an offender being rehabilitated or desisting from future offending.

  The court may be assisted by a pre-sentence report in assessing the relevance of this factor to the individual offender.

  The absence of work, training or education should never be treated as an aggravating factor.

  The court may ask for evidence of employment, training etc or the prospects of such, but should bear in mind any reasonable practical difficulties an offender may have in providing this.

  For more serious offences where a substantial period of custody is appropriate, this factor will carry less (if any) weight.