The public are rightly disgusted and appalled by the heinous crimes committed by those who either molest or children, or fuel a market for such vile actions by viewing child sexual abuse images online.
Such is the horror and devastating impact of these crimes that people often find it difficult to understand why those involved are not always sent straight to jail.
But in some cases these types of sex offenders are spared an immediate prison sentence and instead face monitored punishment in the community.
Here we explain the law and why judges don’t send all paedophiles to jail, and why some are given a so called ‘chance to prove themselves’ back in society.
Judges are required by law to follow Sentencing Council guidelines – unless there is are exceptional circumstances in which a judge may choose not to.
The guidelines require barristers and judges to first consider together the harm caused and the culpability of the person, before a judge comes to a conclusion.
For example, if a paedophile has admitted possession of a child rape image, which falls into the the most serious category of a child abuse image, Category A, then the starting point according to the Sentencing Council guidelines is one year and the custody range is between 26 weeks and three years.
A judge must then decide what factors make the offence more serious – aggravating factors – and what mitigates it, or weighs in favour of the offender.
A few of the aggravating factors a judge would consider are if there are any other previous convictions, if any offences were committed while the offender was on bail or licence, if it is a video rather than a still image, and for how long they possessed the image.
Distributing a child abuse image, such as sharing it online, is also a key aggravating feature that judges must consider.
Mitigating factors a judge would take into account include a lack of previous or relevant convictions, remorse and if the offender has taken steps to show they are addressing the issues that caused the offending, such as working with child abuse prevention charities
If the offender pleaded guilty, the judge must then also apply the relevant credit – reduction – in the sentence, depending upon what stage they pleaded guilty.
Pleading guilty at the earliest opportunity entitles a defendant to “full credit” of one third off their sentence, while a plea on the opening day of a trial means a maximum reduction of 10%.
This process determines how long a custodial sentence will be – but it still doesn’t necessarily mean the person will go straight to prison.
The test for whether a jail sentence will be served straight away or not is a fine balance.
It depends on a number of factors which are set out in a different set of guidelines – the Imposition of Community and Custodial Sentences.
Judges have to consider these guidelines for any sentence they’re going to pass that will be two years or less.
That means they have to think about; if there’s a realistic prospect of rehabilitation, if there is strong personal mitigation and if immediate custody will result in a harmful impact on others
Judges are also required to ask; if there is a history of poor compliance with court orders, if they present a risk of harm to the public or if appropriate punishment can only be achieved by immediate custody.
So someone who is remorseful, shows a willingness to address their issues and work with the probation service, is a sole carer for a vulnerable individual and is a low risk of harm to the public would be more likely to have their sentence suspended.
If a judge doesn’t send someone to prison is doesn’t mean they walk away scot-free.
They could still be sent to jail and serve their sentence in full if they reoffend or if they don’t comply with the orders the judge sets out.
Alongside the suspended sentence judges have a variety of options of other punishments they are able to impose.
This can include unpaid work, a curfew or financial penalties.
Often Rehabilitation Activity Requirements are imposed as part of the suspended sentence and see the offender work with the Probation Service.
Those who are assessed as being a medium to high risk of reconviction may be ordered to complete the Horizon Programme, which is available to male sex offenders over 18 and targets issues of problem solving, self-regulation, relationships, sexual attitudes and behaviours.
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