Sentencing Act 2020

Exercise of powers to impose discretionary custodial sentences E+W

230 Threshold for imposing discretionary custodial sentence E+W

(1) Subsection (2) applies where a person is convicted of an offence which is punishable with a custodial sentence.

This is subject to subsection (3).

(2) The court must not pass a custodial sentence unless it is of the opinion that—

(a) the offence, or

(b) 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.

Threshold generally not applicable where mandatory sentence requirement applies

(3) This section does not apply if the offence is one in relation to which a mandatory sentence requirement applies (see section 399), except as provided in sections 273(4) and 283(4) (pre-condition for life sentence for second listed offence).

Exceptions to subsection (2) relating to community sentences

(4) Nothing in subsection (2) prevents the court from passing a custodial sentence on the offender if the offender fails to express willingness to comply with a requirement—

(a) which the court proposes to include in a community order, but

(b) which may be included only if the offender expresses willingness to comply with it.

(5) Subsection (2) is also subject to—

(a) paragraph 11(3) of Schedule 7 (power to impose custodial sentence in case involving wilful and persistent breach of youth rehabilitation order with intensive supervision and surveillance);

(b) paragraph 22(5)(b) of Schedule 9 (power to deal with offender who does not express willingness to comply with amended drug rehabilitation requirement);

(c) paragraph 10(9) of Schedule 10 (power of magistrates' court to impose custodial sentence following wilful and persistent breach of community order);

(d) paragraph 11(6) of that Schedule (corresponding power of Crown Court);

(e) paragraph 18(9)(b) of that Schedule (power to deal with offender who does not express willingness to comply with amended treatment requirement).

Procedure for forming opinion

(6) In forming its opinion for the purposes of subsection (2), the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated or offence or offences, including any aggravating or mitigating factors.

(7) The pre-sentence report requirements (see section 30) apply to the court in relation to forming that opinion.

(8) See also—

(a) section 77(2) (effect of mitigation: community sentence not precluded even if threshold for custodial sentence met);

(b) section 232 (additional requirements for offender suffering from mental disorder).

Modifications etc. (not altering text)

C1 S. 230(2) excluded by 2000 c. 6, Sch. 5 para. 2(5)(b) (as amended (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 170(4) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2)

C2 S. 230(2) excluded by 2000 c. 6, Sch. 5 para. 3(3)(b) (as amended (1.12.2020) by Sentencing Act 2020 (c. 17), s. 416(1), Sch. 24 para. 170(4) (with Sch. 24 para. 447, Sch. 27); S.I. 2020/1236, reg. 2)

Commencement Information

I1 S. 230 in force at 1.12.2020 by S.I. 2020/1236, reg. 2

231 Length of discretionary custodial sentences: general provision E+W

(1) Subsection (2) applies where a court passes a custodial sentence in respect of an offence.

This is subject to subsections (3) to (6).

(2) The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of—

(a) the offence, or

(b) the combination of the offence and one or more offences associated with it.

Application of subsection (2) to [F1 certain sentences]

(3) Subsection (2) does not apply where the sentence is—

(a) fixed by law, or

(b) a required life sentence,

except as provided in sections 273(4) and 283(4) (pre-condition for life sentence for second listed offence).

(4) In subsection (3), “required life sentence” means a sentence of—

(a) detention for life under section 250,

(b) custody for life under section 272, or

(c) imprisonment for life,

required under a provision mentioned in section 399(b) (mandatory sentences).

(5) Subsection (2) is subject to the provisions mentioned in section 399(c) (minimum sentences).

(6) Subsection (2) does not apply where the custodial sentence is an extended sentence, except as provided in sections 256(2), 268(2) and 281(2) (determination of appropriate custodial term).

[F2 (6A) Subsection (2) does not apply where the custodial sentence is a serious terrorism sentence, except as provided in sections 268C(2)(b) and 282C(2)(b) (determination of appropriate custodial period where longer than the 14-year minimum).]

Procedure for forming opinion

(7) In forming its opinion for the purposes of subsection (2), the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors.

(8) The pre-sentence report requirements (see section 30) apply to the court in relation to forming that opinion, except where the sentence is an extended sentence.

(9) See section 232 for additional requirements in the case of an offender suffering from a mental disorder.

Textual Amendments

F1 Words in s. 231(3) heading substituted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(2)(v), Sch. 13 para. 11(8)(a)

F2 S. 231(6A) inserted (29.6.2021) by Counter-Terrorism and Sentencing Act 2021 (c. 11), s. 50(2)(v), Sch. 13 para. 11(8)(b)

Commencement Information

I2 S. 231 in force at 1.12.2020 by S.I. 2020/1236, reg. 2

232 Additional requirements in case of offender suffering from mental disorder E+W

(1) This section applies where—

(a) the offender is or appears to be suffering from a mental disorder, and

(b) the court passes a custodial sentence other than one fixed by law (“the sentence”).

(2) Before passing the sentence, the court must obtain and consider a medical report unless, in the circumstances of the case, it considers that it is unnecessary to obtain a medical report.

(3) Before passing the sentence, the court must consider—

(a) any information before it which relates to the offender's mental condition (whether given in a medical report, a pre-sentence report or otherwise), and

(b) the likely effect of such a sentence on that condition and on any treatment which may be available for it.

(4) If the court did not obtain a medical report where required to do so by this section, the sentence is not invalidated by the fact that it did not do so.

(5) Any court, on an appeal against the sentence, must—

(a) obtain a medical report if none was obtained by the court below, and

(b) consider any such report obtained by it or by that court.

(6) In this section—

• “medical report” means a report as to an offender's mental condition made or submitted orally or in writing by a registered medical practitioner who is approved for the purposes of section 12 of the Mental Health Act 1983—

  (a)

  by the Secretary of State, or

  (b)

  by another person by virtue of section 12ZA or 12ZB of that Act,

  as having special experience in the diagnosis or treatment of mental disorder;

• “mental disorder” has the same meaning as in the Mental Health Act 1983.

(7) Nothing in this section is to be taken to limit—

(a) the pre-sentence report requirements (see section 30), or

(b) any requirement for a court to take into account all information that is available to it about the circumstances of any offence, including any aggravating or mitigating factors.

Commencement Information

I3 S. 232 in force at 1.12.2020 by S.I. 2020/1236, reg. 2