Part 9

Sentencing: Principles and Procedures
Chapter 2

Principles and Procedures applying to Service Courts Only

Custodial sentences and service detention

Discretionary custodial sentences: general restrictions
260
1
This section applies where a court is dealing with an offender for a service offence punishable with a custodial sentence, other than an offence the sentence for which—
a
is fixed by law;
b
falls to be imposed under section 273(3) or 283(3) of the Sentencing Code as a result of section 218A(1B) or (2) (life sentence for second listed offence);
c
falls to be imposed under section 274(3) or 285(3) of the Sentencing Code as a result of section 219(1A) or (2) (life sentence for certain dangerous offenders aged 18 or over);
d
falls to be imposed under section 258(2) of the Sentencing Code as a result of section 221(2) (life sentence for certain dangerous offenders aged under 18);
e
falls to be imposed under
section 313(2A)
of the Sentencing Code as a result of section 225(2) (third drug trafficking offence);
f
falls to be imposed under
section 314(2A)
of the Sentencing Code as a result of section 226(2) (third domestic burglary);
g
falls to be imposed under section 311(2) of the Sentencing Code as a result of section 227(2) (firearms offences); or
h
falls to be imposed under section 227A(1A) or (2) (threatening with a weapon in public or on school premises).
2
The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that no less severe sentence can be justified for the offence.
3
Nothing in subsection (2) prevents the court from passing a custodial sentence where—
a
the court had proposed to award a community punishment; and
b
the offender failed to express his willingness to comply with a requirement which the court proposed to include in the community punishment and which required an expression of such willingness.
4
In forming any such opinion as is mentioned in subsection (2) or section 261(2) (length of sentence), a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.
4A
The reference in subsection (4) to a court forming any such opinion as is mentioned in subsection (2) or section 261(2) includes a court forming such an opinion for the purposes of section 218A(4).
4B
The reference in subsection (4) to a court forming any such opinion as is mentioned in section 261(2) also includes a court forming such an opinion for the purposes of —
a
section 268(2) or 281(2) of the Sentencing Code, as applied by section 219A of this Act (extended sentences for offenders aged 18 or over), or
b
section 256(2) of the Sentencing Code, as applied by section 221A of this Act (extended sentences for offenders aged under 18).
5
For the purposes of this section a sentence falls to be imposed as a result of subsection (2) of section 225, 226 or 227 if it is required by that subsection and the court is not of the opinion there mentioned.
S. 260 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)
Pt. 9 modified (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, s. 163
S. 260 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4
S. 260(4A)(4B) inserted (3.12.2012) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 22 para. 34(3); S.I. 2012/2906, art. 2(t)
S. 260 modified (1.12.2020 immediately before the consolidation date (see 2020 c. 9, ss. 3, 5(2)(3) and 2020 c. 17, ss. 2, 416)) by Sentencing (Pre-consolidation Amendments) Act 2020 (c. 9), ss. 1, 5(2)(3) (with s. 5(9)); S.I. 2012/1236, reg. 2
S. 260(1)(b)-(h) substituted for s. 260(1)(b) and word (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 58(a) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2
S. 260(4B)(a)(b) substituted (1.12.2020) for words by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 25 para. 58(b) (with s. 416(7), Sch. 27); S.I. 2020/1236, reg. 2
Words in s. 260(1)(e) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(5)(k), Sch. 12 para. 8(a) (with s. 124(11)(12))
Words in s. 260(1)(f) substituted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), s. 208(5)(k), Sch. 12 para. 8(b) (with s. 124(11)(12))