Why do two people get different sentences for the same offence?

Mitigation can significantly reduce a drink driving sentence

There is a, very minor, story in today’s Daily Mail about a businessman sentenced for drink driving that has led to quite a few people asking why he received a fine of £488 (actually, he was fined £367 but the Mail got that bit wrong) and a 14-month driving ban while Chris Tarrant was fined £6,000 and handed a 12-month ban for the same offence, even though Mr Tarrant had a much lower alcohol level. 

As I acted for the businessman, I’m tempted to say that the difference must reflect the fact that one had a specialist drink driving solicitor while the other was represented by a corporate crime expert, although I’m sure that the truth is that the law on sentencing came into play. So, since people are speculating about the differences in sentence I though we might as well take a moment to look at how people are sentenced by criminal courts. We’ll use drink driving as an example, but the principles apply to all criminal offences.

When a person appears in court for drink driving the sentence ultimately imposed will depend a lot on the alcohol reading they provide at the police station, so the higher the reading the higher the sentence will be. However, because there is a minimum period of disqualification the sentences at the bottom end tend to become a little skewed and there is often little to be gained, in terms of sentence, from pleading guilty at the earliest opportunity. That said, both reported cases involve people who did plead guilty as early as possible.

According to the sentencing guidelines, a person who provides a breath specimen of between 36 and 59 will receive a Band C fine and a driving ban of between 12 and 16 months. That is the bracket Mr Tarrant was in. Somebody who blows between 60 and 89 microgrammes of alcohol in 100 ml of breath should also receive a Band C fine and a driving ban of between 17 and 22 months.

A Band C fine means that the court should look to impose a fine equal to the person’s income for a week and a half; however, that can go up or down depending on the mitigation put forward on their behalf. Those in the higher bracket could find themselves with a community order rather than a fine if the court decides that the offence is serious enough.

Because the fines are in bandings according to income a person who earns more will pay more than a person who earns less. This is a fair way of doing things because a £200 fine may financially cripple somebody on a very low income whereas £200 may be nothing at all to another defendant so the point of the banding is to ensure that the amount payable hurts all defendants equally.

Let’s look at the driving ban now. As with the fine, the driving ban will vary depending on the amount of alcohol consumed. We can see that a person who blows 81 microgrammes of alcohol should be receiving a disqualification of around 20 to 22 months given it is at the higher end of the relevant bracket, which runs from 60 to 89 mcg. While somebody blowing 50 mcg should be receiving a ban of around 15 months given that is towards the higher end of that bracket, which runs from 36 to 59 mcgs. This is where the skewing caused by the minimum disqualification period really shows itself along with the effect of a document known as Home Office Circular no 46/1983, which directs the police not to charge anybody with drink driving if they blow below 40 mcgs. This means that, in effect, the lowest range only ever applies to people who blow 40 or above and so if you are in that lower bracket you have a very good chance of successfully arguing that you should be banned for 12 months. In my experience, I would say that 90% of my clients who plead guilty after having blown below 60 mcgs will end up with a 12-month disqualification. Once you get into the higher brackets courts tend to stick far more rigidly to the guidelines.

So, why in the two stories I’ve mentioned did one man receive a 14-month driving ban and the other 12-months despite the former providing a breath specimen some 31 mcgs higher than that of the former? This is where good mitigation plays its part.

In deciding upon sentence, the court will decide on a starting point then will decide whether the aggravating features of the offence should increase the sentence or whether the mitigation should reduce it. Mr Tarrant’s case appears to have been aggravated by the fact that he initially lied to the police by claiming that he had been drinking at home not at the pub he had visited. There were no aggravating features in the other case.

Mitigation has two parts, first there is personal mitigation and then there are facts that mitigate the offence itself. The Mail has largely set out the mitigation in my case; based on those facts I submitted to the court that justice required a sentence much lower than the guidelines would impose. The court agreed and cut the sentence accordingly.

So, if you were one of those people wondering how courts arrive at their sentences then this is it: first they look at the guidelines and find a starting point, then they look at aggravating and mitigating factors and increase or reduce the sentence as appropriate. Once they’ve done that they impose the sentence they feel best reflects the offending before them.