Robert’s Postbag: April 2011
Note: I am grateful to those who wrote about their experience with probation.
T wrote, ‘My probation worker saw fit to be judge and jury and was clouded by emotion. She questioned me about my relationship with my wife and decided my wife should leave me. She said I was a serial offender although I had no previous crimes. I challenged her about the report and she simply said it was accurate. Her report said I was a ‘high risk’ but the Judge threw the PSR out of court. I got two years and after court the probation worker said I should have got IPP. She than decided I should not be able to complete SOTP whilst in custody. She said I had to live in a Bail Hostel rather than be back with my wife. This was to ‘educate me about relationships’. I do regret my crimes. I pray my victim has not suffered any emotional damage. I want to rebuild my life. This is something probation cannot see. They have a massive influence (and yet) let their personal opinions rule (just) ignoring us all to fit (their) pre-set targets.’
‘One pissed-off ISP’ wrote: The list of faults is endless. My sexist Amazon probation officer wrote a distorted, fabricated, twisted, diluted, concocted, assembled, lying pre-sentence report. Would it not be realistic to tape record the meetings? I said to my Amazon officer that I gave my apologies to my victim and I showed remorse. My report contained none of this, just negative matters. These lies will follow a prisoner through his or her sentence. The lies will also come up if a prisoner is recalled. What satisfaction do these people get out of writing reports that will condemn someone to more years in jail for no reason?
F wrote, ‘I write about the drastically flawed pre-sentence system. I am one of the many victims. My Offender Manager, went off about my ex-partner’s statement which was full of lies. At court the Judge discarded it.
Q1 I have worked hard all my life and my wife and I drifted apart. She carried on her spending. She was always good at that. Then she moved out and she carried on spending. I stopped her credit cards and she started to get vicious. She made disparaging remarks about my sexual abilities and started spreading this about. She seemed to dedicating her life to undermining me and humiliating me. Like her spending she was very good at nasty attacks. She was clearly enjoying it. As the recession took hold her activity was seriously affecting my business. The profits went from bad to worse so eventually I talked to someone in a pub who said he could put me in touch with someone to end my problem for good. Shortly after Kev called and we met up. He seemed to know what he was doing. It was decided to make her disappear so her body would never be found and around the time she went missing I would be abroad on a business trip. It was also agreed I should put £1,000 down as part payment. Two days later I met Kev in a car park and we discussed what would happen. I handed over the money and suddenly police were everywhere. I was arrested and I have just seen all the evidence. It turned out Kev was from a specialist police group who impersonate criminals. The phone calls were taped and the meetings were taped and videoed. I suspect my wife paid someone to trap me in the pub. She is certainly enjoying every moment of it. She turns up at all the court hearings and gloats. She is also trying to block my children coming to see me. What are the guidelines for attempted murder?
A1 Well clearly there are some interesting points about the legal applications you can make. I would expect the prosecution to change the charge to soliciting to murder or possibly incitement to murder. The precise charge may make little difference to the sentence. It appears you should try to obtain information about the man in the pub to see if your wife was behind the trap if that is what it was. If she arranged it all she wouldn’t be able to play the victim card and it would help you both if you rely on entrapment, seeing your children and on sentence. If you are to plead that should be with a written basis of plea and you should seek to indicate your plea as early as possible. The guidelines you ask for are as follows:
Guidelines Attempted murder
Murder, Attempted Guideline 2009, see Guidelines tab The definitive guideline applies to offenders aged 18.
Culpability and harm
The culpability of the offender is the initial factor in determining the seriousness of an offence. It is an essential element of the offence of attempted murder that the offender had an intention to kill, accordingly an offender convicted of this offence will have demonstrated a high level of culpability. Even so, the precise level of culpability will vary in line with the circumstances of the offence and whether the offence was planned or spontaneous. The use of a weapon may influence this assessment. In common with all offences against the person, this offence has the potential to contain an imbalance between culpability and harm. Where the degree of harm actually caused to the victim of an attempted murder is negligible, it is inevitable that this will impact on the overall assessment of offence seriousness. However, although the degree of (or lack of) physical or psychological harm suffered by a victim may generally influence sentence, the statutory definition of harm encompasses not only the harm actually caused by an offence but also any harm that the offence was intended to cause or might foreseeably have caused, since the offence can only be committed where there is an intention to kill, an offence of attempted murder will always involve, in principle, the most serious level of harm.
Aggravating and mitigating factors
The most serious offences of attempted murder will include those which encompass the factors set out in schedule 21 to the Criminal Justice Act 2003, paragraphs 4 and 5 that, had the offence been murder, would make the seriousness of the offence ‘exceptionally high’ or ‘particularly high’. In all cases, the aggravating and mitigating factors that will influence the identification of the provisional sentence within the range follow those set out in schedule 21 with suitable adjustments. These factors are included in the guideline table. Care needs to be taken to ensure that there is no double counting where an essential element of the offence charged might, in other circumstances, be an aggravating factor. This guideline is not intended to provide for an offence found to be based on a genuine belief that the murder would have been an act of mercy. Whilst the approach to assessing the seriousness of the offence may be similar, there are likely to be other factors present (relating to the offence and the offender) that would have to be taken into account and reflected in the sentence.
Compensation orders
A court must consider making a compensation order in respect of any personal injury, loss or damage occasioned.
Sentencing ranges and starting points
The starting points and ranges are based upon an adult ‘first-time offender’ who has been convicted. A ‘first-time offender’ is a person who does not have a conviction which, by virtue of the Criminal Justice Act 2003 s 143(2), must be treated as an aggravating factor. Where the offender has previous convictions which aggravate the seriousness of the current offence, that may take the provisional sentence beyond the range given particularly where there are significant other aggravating factors present.
Factors to take into consideration
The level of injury or harm sustained by the victim as well as any harm that the offence was intended to cause or might foreseeably have caused, must be taken into account and reflected in the sentence imposed. The degree of harm will vary greatly. Where there is low harm and high culpability, culpability is more significant. Even in cases where a low level of injury (or no injury) has been caused, an offence of attempted murder will be extremely serious.
Nature of offence / Starting point / Sentencing rangeLevel 1 The most serious offences including those which (if the charge had been murder) would come within the Criminal Justice Act 2003 Sch 21 paras 4 or 5
A Serious and long-term physical or psychological harm / 30 years’ custody / 27–35 years’ custody
B Some physical or psychological harm / 20 years’ custody / 17–25 years’ custody
C Little or no physical or psychological harm / 15 years’ custody / 12–20 years’ custody
Level 2 Other planned attempt to kill
A Serious and long-term physical or psychological harm / 20 years’ custody / 17–25 years’ custody
B Some physical or psychological harm / 15 years’ custody / 12–20 years’ custody
C Little or no physical or psychological harm / 10 years’ custody / 7–15 years’ custody
Level 3 Other spontaneous attempt to kill
A Serious and long-term physical or psychological harm / 15 years’ custody / 12–20 years’ custody
B Some physical or psychological harm / 12 years’ custody / 9–17 years’ custody
C Little or no physical or psychological harm / 9 years’ custody / 6–14 years’ custody
Specific aggravating factors
a) The victim was particularly vulnerable, for example, because of age or disability, b) mental or physical suffering inflicted on the victim, c) the abuse of a position of trust, d) the use of duress or threats against another person to facilitate the commission of the offence, and e) the fact that the victim was providing a public service or performing a public duty.
Specific mitigating factors
a) The offender suffered from any mental disorder or mental disability which lowered his degree of culpability, b) the offender was provoked (for example, by prolonged stress), c) the offender acted to any extent in self-defence, and d) the age of the offender.
The presence of one or more aggravating features will indicate a more severe sentence within the suggested range and, if any aggravating features are exceptionally serious, the case will move up to the next level.
If prisoners leave out key matters such relevant and serious previous convictions or that the Court of Appeal has already rejected an appeal, the answers given may be incomplete or wrong.
Copyright Robert Banks 2011