Alabama Law Review

Vol. 20: 193, 1968

crepancy is relatively small and within the margin of tolerance that must inevitably exist in sentencing. An illustration of the "true amateur" is provided by the case of a woman of thirty, again with no previous convictions and with some experience as a nurse, who was convicted of one count of attempting to procure the miscarriage of a girl of sixteen who subsequently required hospital treatment. There was no evidence that the appellant had received any money or committed further offences, and the Court upheld a sentence of eighteen months' imprisonment, observing that "there was no evidence . . . that she was a professional abortionist making a regular income out of activities of this kind. If that had been the case no doubt the sentence would have been substantially longer."68

Norms similar to these can be found in most areas of criminal behaviour.64 Sometimes the greater variety in the circumstances accompanying different kinds of offence make the basic norms more difficult to identify in the particular examples chosen the task of identifying the norms is simplified by the fact that most of the offenders concerned had no previous convictions and the essential nature of the offence was the same in each case. In terms of the significance of appellate review to the development of norms such as these it is worth pointing out again that no individual case contains a clear statement of the Court's policy, beyond a reference to the presence or absence of the element of professionalism; yet taking the cases together the policy becomes perfectly clear. The second point which these cases illustrate is the ассерtance of the established norms by the trial courts; in only three of the ten cases cited did the Court interfere with the trial judges' sentence. While this has no significance in statistical terms it seems clear that some trial judges at least are aware of the basic distinctions made by the Court of Appeal.

Against the pattern of norms established for each main group of offences, a series of general principles operate. The process of fixing the length of a sentence of imprisonment in effect involves using the appropriate norms as a starting point, and then making adjustments from that starting point in terms of the general principles. Again the nature

63. Regina v. Castagna (No. 3937/66, C.A. Crim. Div., Feb. 14, 1967). Similar sentences were upheld in Regina v. Soloman (No. 2246/65, Ct. Crim. App., Dec. 20, 1967), where two young nurses, each of good character, admitted one charge of procuring the miscarriage of a third. Again there was no suggestion of professionalism or the receipt of a fee.

64. For further illustrations, see Thomas, Sentencing-The Basic Principles, [1967] CRIM. L. REV. (Eng.) 503, 514.

Appellate Review of Sentences

of these principles will be illustrated by reference to a few of them rather than an attempt at a comprehensive description.

66

Probably the most important general principles are those which relate to the offender's previous criminal record. The fundamental principle in this area is that the offender's record, however bad it may be, does not justify a sentence in excess of the “norm” appropriate to the facts of the particular offence for which he is to be sentenced on the present occasion. Allowance can be made in mitigation for good record, or for moderately good record, but the "norm" established for the offence in the particular circumstances acts as an absolute ceiling on the sentence. The principle is analogous to that governing sentence concessions in cases of pleas of guilty, described above. Many cases can be cited to illustrate this principle,65 but one will suffice. The appellant, a man of twenty-eight, was sentenced to six years' imprisonment for living on the earnings of prostitution. The appellant had two previous convictions for similar offences and had been sentenced on the last occasion to four and a half years' imprisonment, but it was accepted that on this occasion the woman concerned was a prostitute before she met the appellant, that she came to live with him primarily to look after his young son, and had returned to prostitution on her own initiative; there was no question of the appellant's having used violence or in any way having forced her to return to prostitution.67 The Court reduced the sentence to three years' imprisonment, saying that the trial judge had had too much regard to the appellant's previous convictions and such an approach “masked the true principle of sentencing in a case of this kind, and that is . . . a man must not be sentenced on his record, he must be sentenced on the facts which have come out in evi

65. For some earlier citations, see Thomas, note 42 supra. The principle did not apply to the special sentence of preventive detention, and the abolition of that sentence has led to some confusion. For the earlier distinction between the principles governing preventive detention and those governing imprisonment, see Williams, note 45 supra; for more recent developments, see Thomas, The Criminal Justice Bill: New Issues in Sentencing Policy, [1967] CRIM. L. Rev. (Eng.) 277.

66. Regina v. Griffiths (No. 2313/66, C.A. Crim. Div., Nov. 29, 1966).

67. Other cases involving this offence clearly show that the most significant factor affecting the sentence within the statutory maximum of seven years' imprisonment is the degree of control exercised by the offender. Two extreme cases are Regina v. Norris, [1962] CRIM. L. REV. (Eng.) 498 (Ct. Crim. App.), and Regina v. Broad, [1963] CRIM. L. REV. (Eng.) 298 (Ct. Crim. App.). In Norris the appellant was said to have driven his wife into prostitution; his sentence was increased from three years' imprisonment to five. In Broad the appellant had married a woman who was already operating two brothels and in effect took over the business side of the operation, keeping on his normal job and exercising no control over the girls. His sentence was reduced from seven years' to four years' imprisoninent.

Alabama Law Review

Vol. 20: 193, 1968

dence or alternatively have been put before the court after a plea of guilty."

The principle illustrated in this case and found in very many others does not mean that the appellant's record has no significance in the calculation of the length of his sentence (as opposed to the primary decision to sentence him to imprisonment). The operating policy is that good record normally has substantial mitigating effect, and this mitigating effect declines gradually as a criminal record is built up rather than being extinguished by a single conviction. The Court thus distinguishes between offenders according to their records, but subject to the overall ceiling imposed by the relative gravity of the offence for which they are sentenced.68

Two subsidiary principles which illustrate the development of relatively complex concepts can be described as the "gap principle" and the "jump effect." The essence of the "gap principle" is that however bad an offender's record may be, the existence of a significant period of good behaviour in the relatively recent past counts as a substantial mitigating factor in his favour if he subsequently commits an offence, and in some cases has greater mitigating effect even than a simple clean record. The Court will normally disregard previous offences entirely when the gap is of a substantial number of years' duration, and this principle has now been given some statutory force.70 When the gap is shorter, it will still have considerable significance. In one case11 a man of forty-one was sentenced to four years' imprisonment for house breaking. He had had ten previous convictions, one of which resulted in a sentence of seven years' imprisonment. After his release from this sentence he had married and committed no further serious offences in the next four years, at the same time achieving a record of steady employ

68. A good illustration is provided by Regina v. Flack (No. 1911/64, Ct. Crim. App., Dec. 12, 1964), where three men were convicted of participation in what was described as an "organised raid" on a railroad good yard. One man, aged thirty-six, had had ten previous convictions and had served a sentence of seven years' imprisonment; his sentence of six years' imprisonment was upheld. Another, aged thirty-five, had had five previous convictions and his longest, previous sentence was nine months' imprisonment; his sentence was reduced from six to three years' imprisonment. The third man, aged thirty, had had one previous conviction for which he had been conditionally discharged; his sentence was reduced from six years' to eighteen months' imprisonment.

69. See, e.g., Regina v. Smith (No. 1316/64, Ct. Crim, App., Sept. 25, 1964), where a man of fifty appealed against a sentence of six months' imprisonment for fraudulently abstracting electricity; the Court stated that although he had had a previous conviction for theft sixteen years' earlier, he should be treated as a man of good character. His sentence was reduced so as to allow him to be discharged immediately. 70. See Children and Young Persons Act 1963, c. 37, § 16(2).

71. Regina v. Rosa (No. 2069/65, Ct. Crim. App., Dec. 16, 1965).

22-466 - 73 pt. 69

Appellate Review of Sentences

ment which the Court considered "distinctly to his credit." Solely in view of the appellant's efforts since his last release, his sentence was reduced to two years' imprisonment. As this case suggests, the rationale of the gap principle is that the offender has made an effort to rehabilitate himself and, where there is evidence of this, the Court will be influenced by it even where the period involved is relatively short. In one case72 the period was only a few months. The appellant, a man of twenty-five, had had nine previous convictions for violence and dishonesty and following his release from a sentence of four years' imprisonment he had moved from Scotland to a town in the southwest of England, where he found employment. In this job he came into contact with a man who constantly and deliberately provoked him and eventually the appellant assaulted his provoker, striking him a blow which broke his spectacles and caused severe lacerations to his face. The appellant was sentenced to two years' imprisonment; the Court considered that he should have been given credit for "trying to put behind him his criminal past" and reduced the sentence to twelve months.73 The "jump effect" is rather different and less likely to carry weight than the "gap principle.” It appears to be derived from the basic concept that the mitigating effect of good character diminishes gradually, rather than disappearing completely with one conviction. One of a considerable number of cases illustrating the point involved a man sentenced to seven years' imprisonment for a series of frauds mainly on women. He had had several previous convictions for offences of a similar character but had never received a sentence for longer than nine months' imprisonment. The Court reduced the sentence from seven years' to five years' imprisonment, saying that

if this man had been more severely dealt with in the past, they would not have dreamed of interfering with this sentence . . . but it is to be observed that in regard to his past offences. . . the maximum prison sentence that he has had is one of nine months. In those circumstances. . . this Court feels that the jump from nine months to seven years is really too great.

The other cases in which the "jump effect" is seen in operation indicate that it is limited to cases where the offender's offences are similar

72. Regina v. Mackey, [1965] CRIM. L. REV. (Eng.) 122 (Ct. Crim. App. 1964). 73. The "gap principle" clearly has connections with the policy of using probation in the case of the "intermediate recidivist," described earlier: in a later stage of the development of that policy, the case described in the text might have been dealt with in that

way.

74. Regina v. Davis (No. 1814/64, Ct. Crim. App., Oct. 12, 1964).

Alabama Law Review

Vol. 20: 193, 1968

in character to the earlier ones; it would not appear to apply to the situation where the offender turns to a new area of crime of a more serious nature.

There are other subsidiaries of the general principle that good character has a mitigating effect which diminishes gradually. These include the general mitigating effect of youth, where a similar effect is observable; age is most significant as a mitigating factor where the offender is in his late teenage,75 but does not lose all its significance until the offender is nearly thirty. Another is the significance of remorse, mentioned earlier. The weight that such factors have tends to vary immensely with the gravity of the offence. Some principles are negative in form, thus the Court will rarely reduce a sentence on the sole ground that the appellant's family will suffer or that the appellant is in bad health,76 unless it is a causative factor or there is a probability that the offender will not survive his sentence.

Individualisation.-There is less scope for the development of principles in the context of the use of individualised measures than in other areas. Once the primary decision to use an individualised measure has been taken the problem becomes one of finding the most appropriate of the available alternatives to suit the particular offender, and in this process the Court is guided more by the various pre-sentence reports which will be available rather than any firm policies of its own. Most of the principles found in this area relate to the detailed application of the statutory provisions governing individualised measures, and no purpose would be served by illustrating them. One more general issue which can be mentioned is the use of individualised measures which have a more severe impact on the offender's freedom than the alternative punitive sentence. There was considerable doubt as to the permissibility of subjecting the offender, in what are considered to be his best. interests, to a custodial training sentence of longer duration than the sentence of imprisonment which would be considered fair in relation to the offence he has committed. After some hesitation, the Court has generally come to the conclusion that a sentence which has this effect is permissible if it can be justified as being in the long-term interests of the offender. The matter has been most litigated in connection with

75. It is rare for an offender under fifteen to come before the Court. In most cases involving offenders under twenty-one, an individualised approach is preferred; the reference in the text is to those exceptional cases where a sentence of imprisonment is considered appropriate.

76. The matter is regarded as one more properly in the sphere of executive clemency. See MEADOR REPORT 133.