Aggravated vehicle taking – death caused

A – High culpability

• Deliberate disregard for the safety of others
• Driving impaired by consumption of alcohol and/or drugs
• Significant planning
• Offence committed in course of evading police
• Leading role in group offending
• Vehicle taking involved intimidation or the use or threat of force

B – Medium culpability

• Cases that fall between categories A or C because:
  • Factors are present in A and C which balance each other out, and/or
  • The offender’s culpability falls between the factors as described in A and C

C – Lesser culpability

• Minor role in group offending
• Exceeding authorised use of e.g. employer's or relative's vehicle
• Retention of hire car for short period beyond return date

Statutory aggravating factors:

• Previous convictions,

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  Guidance on the use of previous convictions

  The following guidance should be considered when seeking to determine the degree to which previous convictions should aggravate sentence:

  Section 65 of the Sentencing Code states that:

  (1) This section applies where a court is considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more relevant previous convictions.

  (2) The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to— (a) the nature of the offence to which the conviction relates and its relevance to the current offence, and (b) the time that has elapsed since the conviction.

  (3) Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated.

  1. Previous convictions are considered at step two in the Council’s offence-specific guidelines.
  2. The primary significance of previous convictions (including convictions in other jurisdictions) is the extent to which they indicate trends in offending behaviour and possibly the offender’s response to earlier sentences.
  3. Previous convictions are normally of relevance to the current offence when they are of a similar type.
  4. Previous convictions of a type different from the current offence may be of relevance where they are an indication of persistent offending or escalation and/or a failure to comply with previous court orders.
  5. Numerous and frequent previous convictions might indicate an underlying problem (for example, an addiction) that could be addressed more effectively in the community and will not necessarily indicate that a custodial sentence is necessary.
  6. If the offender received a non-custodial disposal for the previous offence, a court should not necessarily move to a custodial sentence for the fresh offence.
  7. In cases involving significant persistent offending, the community and custody thresholds may be crossed even though the current offence normally warrants a lesser sentence. If a custodial sentence is imposed it should be proportionate and kept to the necessary minimum.
  8. The aggravating effect of relevant previous convictions reduces with the passage of time; older convictions are of less relevance to the offender’s culpability for the current offence and less likely to be predictive of future offending.
  9. Where the previous offence is particularly old it will normally have little relevance for the current sentencing exercise.
  10. The court should consider the time gap since the previous conviction and the reason for it. Where there has been a significant gap between previous and current convictions or a reduction in the frequency of offending this may indicate that the offender has made attempts to desist from offending in which case the aggravating effect of the previous offending will diminish.
  11. Where the current offence is significantly less serious than the previous conviction (suggesting a decline in the gravity of offending), the previous conviction may carry less weight.
  12. When considering the totality of previous offending a court should take a rounded view of the previous crimes and not simply aggregate the individual offences.
  13. Where information is available on the context of previous offending this may assist the court in assessing the relevance of that prior offending to the current offence
  having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
• Offence committed whilst on bail

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  Section 64 of the Sentencing Code states:

  In considering the seriousness of any offence committed while the offender was on bail, the court must - (a) treat the fact that it was committed in those circumstances as an aggravating factor and (b) state in open court that the offence is so aggravated.  

• Offence motivated by, or demonstrating hostility based on any of the following characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation or transgender identity

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  See below for the statutory provisions.

  • Note the requirement for the court to state that the offence has been aggravated by the relevant hostility.
  • Where the element of hostility is core to the offending, the aggravation will be higher than where it plays a lesser role.

  Section 66 of the Sentencing Code states:

  Hostility (1) This section applies where a court is considering the seriousness of an offence which is aggravated by—

  (a) racial hostility,

  (b) religious hostility,

  (c) hostility related to disability,

  (d) hostility related to sexual orientation, or

  (e) hostility related to transgender identity.

  This is subject to subsection (3). (2) The court—

  (a) must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and

  (b) must state in open court that the offence is so aggravated.

  (3) So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). (4) For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if—

  (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

  (i) the victim’s membership (or presumed membership) of a racial group,

  (ii) the victim’s membership (or presumed membership) of a religious group,

  (iii) a disability (or presumed disability) of the victim,

  (iv) the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)

  (v) the victim being (or being presumed to be) transgender, or

  (b) the offence was motivated (wholly or partly) by—

  (i) hostility towards members of a racial group based on their membership of that group,

  (ii) hostility towards members of a religious group based on their membership of that group,

  (iii) hostility towards persons who have a disability or a particular disability,

  (iv) hostility towards persons who are of a particular sexual orientation, or (as the case may be)

  (v) hostility towards persons who are transgender.

  (5) For the purposes of paragraphs (a) and (b) of subsection (4), it is immaterial whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (6) In this section—

  (a) references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;

  (b) references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;

  (c) “membership” in relation to a racial or religious group, includes association with members of that group;

  (d) “disability” means any physical or mental impairment;

  (e) references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment;

  (f) “presumed” means presumed by the offender.

Other aggravating factors:

• Vehicle taken as part of burglary
• Taken vehicle was an emergency vehicle
• Taken vehicle belongs to a vulnerable person
• Disregarding warnings of others
• Victim was providing a public service or performing a public duty at the time of the offence, or was an emergency worker
• Victim was a vulnerable road user, including pedestrians, cyclists, horse riders, motorcyclists etc
• Taken vehicle is an LGV, HGV or PSV etc
• Other driving offences committed at the same time (see step 5 on totality)
• Blame wrongly placed on others

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • Where the investigation has been hindered and/or other(s) have suffered as a result of being wrongly blamed by the offender, this will make the offence more serious.
  • This factor will not be engaged where an offender has simply exercised his or her right not to assist the investigation or accept responsibility for the offending.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and lack of maturity when considering the significance of such conduct.

• Failed to stop and/or obstructed or hindered attempts to assist at the scene
• Passengers in the offender’s vehicle, including children
• Offence committed on licence or post sentence supervision or while subject to court order(s)

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • An offender who is subject to licence or post sentence supervision is under a particular obligation to desist from further offending.
  • Commission of an offence while subject to a relevant court order makes the offence more serious.
  • The extent to which the offender has complied with the conditions of a licence or order (including the time that has elapsed since its commencement) will be a relevant consideration.
  • Where the offender is dealt with separately for a breach of a licence or order regard should be had to totality
  • Care should be taken to avoid double counting matters taken into account when considering previous convictions.

  When sentencing young adult offenders (typically aged 18-25), consideration should also be given to the guidance on the mitigating factor relating to age and/or lack of maturity when considering the significance of this factor.

• Actions of the victim or a third party contributed significantly to collision or death
• Efforts made to assist or seek assistance for victim(s)
• The victim was a close friend or relative
• No previous convictions or no relevant/recent convictions

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm
  

  • First time offenders usually represent a lower risk of reoffending. Reoffending rates for first offenders are significantly lower than rates for repeat offenders. In addition, first offenders are normally regarded as less blameworthy than offenders who have committed the same crime several times already. For these reasons first offenders receive a mitigated sentence.
  • Where there are previous offences but these are old and /or are for offending of a different nature, the sentence will normally be reduced to reflect that the new offence is not part of a pattern of offending and there is therefore a lower likelihood of reoffending.
  • When assessing whether a previous conviction is ‘recent’ the court should consider the time gap since the previous conviction and the reason for it. 
  • Previous convictions are likely to be ‘relevant’ when they share characteristics with the current offence (examples of such characteristics include, but are not limited to: dishonesty, violence, abuse of position or trust, use or possession of weapons, disobedience of court orders).  In general the more serious the previous offending the longer it will retain relevance.
• Remorse

  Effective from: 01 October 2019 (revised 1 April 2024)

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  The court will need to be satisfied that the offender is genuinely remorseful for the offending behaviour in order to reduce the sentence (separate from any guilty plea reduction).

  Lack of remorse should never be treated as an aggravating factor.

  Remorse can present itself in many different ways. A simple assertion of the fact may be insufficient.

  The court should be aware that the offender’s demeanour in court or the way they articulate their feelings of remorse may be affected by, for example:

  • nervousness
  • a lack of understanding of the system
  • mental disorder
  • learning disabilities
  • communication difficulties (including where English is not their first language)
  • a belief that they have been or will be discriminated against
  • peer pressure to behave in a certain way because of others present
  • age and/or a lack of maturity etc.

  Guideline users should be aware that the Equal Treatment Bench Book covers important aspects of fair treatment and disparity of outcomes for different groups in the criminal justice system. It provides guidance which sentencers are encouraged to take into account wherever applicable, to ensure that there is fairness for all involved in court proceedings.

• Positive character and/or exemplary conduct (regardless of previous convictions)

  Effective from: 01 October 2019 (revised 1 April 2024)

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  Evidence that an offender has demonstrated a positive side to their character may reduce the sentence.

  This factor may apply whether or not the offender has previous convictions. 

  However:

  • This factor is less likely to be relevant where the offending is very serious
  • Where an offender has used their positive character or status to facilitate or conceal the offending it could be treated as an aggravating factor.

   

• Serious medical conditions requiring urgent, intensive or long-term treatment

  Effective from: 01 October 2019

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  • The court can take account of physical disability or a serious medical condition by way of mitigation as a reason for reducing the length of the sentence, either on the ground of the greater impact which imprisonment will have on the offender, or as a matter of generally expressed mercy in the individual circumstances of the case.
  • However, such a condition, even when it is difficult to treat in prison, will not automatically entitle the offender to a lesser sentence than would otherwise be appropriate.
  • There will always be a need to balance issues personal to an offender against the gravity of the offending (including the harm done to victims), and the public interest in imposing appropriate punishment for serious offending.
  • A terminal prognosis is not in itself a reason to reduce the sentence even further. The court must impose a sentence that properly meets the aims of sentencing even if it will carry the clear prospect that the offender will die in custody. The prospect of death in the near future will be a matter considered by the prison authorities and the Secretary of State under the early release on compassionate grounds procedure (ERCG).
  • But, an offender’s knowledge that he will likely face the prospect of death in prison, subject only to the ERCG provisions, is a factor that can be considered by the sentencing judge when determining the sentence that it would be just to impose.
• Mental disorder, learning disability

  Effective from: 01 October 2020

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm or those inherent in the offence

  Refer to the Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline.

  Note in particular paragraph 5 for Black, Asian and Minority Ethnic offenders.

• Age and/or lack of maturity (which may be applicable to offenders aged 18-25)

  Effective from: 01 October 2019 (revised 1 April 2024)

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  Where a person has committed the offence under the age of 18, regard should be had to the overarching guideline for sentencing children and young people. That guideline may also be relevant to offending by young adults.

  Age and/or lack of maturity can affect:

  • the offender’s responsibility for the offence and
  • the effect of the sentence on the offender.

  Either or both of these considerations may justify a reduction in the sentence.

  The emotional and developmental age of an offender is of at least equal importance to their chronological age (if not greater).

  In particular young adults (typically aged 18-25) are still developing neurologically and consequently may be less able to:

  • evaluate the consequences of their actions
  • limit impulsivity
  • limit risk taking

  Young adults are likely to be susceptible to peer pressure and are more likely to take risks or behave impulsively when in company with their peers.

  Immaturity can also result from atypical brain development. Environment plays a role in neurological development and factors such as adverse childhood experiences including deprivation and/or abuse may affect development.

  An immature offender may find it particularly difficult to cope with custody and therefore may be more susceptible to self-harm in custody.

  An immature offender may find it particularly difficult to cope with the requirements of a community order without appropriate support.

  There is a greater capacity for change in immature offenders and they may be receptive to opportunities to address their offending behaviour and change their conduct.

  Many young people who offend either stop committing crime, or begin a process of stopping, in their late teens and early twenties.  Therefore a young adult’s previous convictions may not be indicative of a tendency for further offending.

  Where the offender is care experienced or a care leaver the court should enquire as to any effect a sentence may have on the offender’s ability to make use of support from the local authority. (Young adult care leavers are entitled to time limited support. Leaving care services may change at the age of 21 and cease at the age of 25, unless the young adult is in education at that point). See also the Sentencing Children and Young People Guideline (paragraphs 1.16 and 1.17).

  Where an offender has turned 18 between the commission of the offence and conviction the court should take as its starting point the sentence likely to have been imposed on the date at which the offence was committed, but applying the purposes of sentencing adult offenders. See also the Sentencing Children and Young People Guideline (paragraphs 6.1 to 6.3).

• Sole or primary carer for dependent relatives

  Effective from: 01 October 2019 (revised 1 April 2024)

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered.  See also the Imposition of community and custodial sentences guideline.

  For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

  Where custody is unavoidable consideration of the impact on dependants may be relevant to the length of the sentence imposed and whether the sentence can be suspended.

  For more serious offences where a substantial period of custody is appropriate, this factor will carry less weight.

  ­When imposing a community sentence on an offender with primary caring responsibilities the effect on dependants must be considered in determining suitable requirements.

  The court should ensure that it has all relevant information about dependent children before deciding on sentence.

  When an immediate custodial sentence is necessary, the court must consider whether proper arrangements have been made for the care of any dependent children and if necessary consider adjourning sentence for this to be done.

  Useful information can be found in the Equal Treatment Bench Book (see in particular Chapter 6 paragraphs 119 to 125)

• Pregnancy, childbirth and post-natal care

  Effective from: 01 April 2024

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  When considering a custodial or community sentence for a pregnant or postnatal offender (someone who has given birth in the previous 12 months) the court should ensure it has all the necessary information before sentencing and adjourn the sentencing if necessary.

  When sentencing a pregnant or postnatal woman, relevant considerations may include:

  • the medical needs of the offender including her mental health needs
  • any effect of the sentence on the physical and mental health of the offender
  • any effect of the sentence on the child

  The impact of custody on an offender who is pregnant or postnatal can be harmful for both the offender and the child including by separation, especially in the first two years of life.

  Access to a place in a prison Mother & Baby Unit is not automatic and when available, the court may wish to enquire for how long the place will be available.

  Women in custody are likely to have complex health needs which may increase the risks associated with pregnancy for both the offender and the child. The NHS classifies all pregnancies in prison as high risk.

  There may be difficulties accessing medical assistance or specialist maternity services in custody.

  This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered. See also the Imposition of community and custodial sentences guideline.

  For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

  Where immediate custody is unavoidable, all of the factors above may be relevant to the length of the sentence.

  The court should address the issues above when giving reasons for the sentence.

• Difficult and/or deprived background or personal circumstances

  Effective from: 01 April 2024

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  The court should consider whether there are factors in the offender’s background or current personal circumstances which may be relevant to sentencing. Such factors may be relevant to:

  • the offender’s responsibility for the offence and/or
  • the effect of the sentence on the offender.

  Courts should consider that different groups within the criminal justice system have faced multiple disadvantages which may have a bearing on their offending. Such disadvantages include but are not limited to:

  • experience of discrimination
  • negative experiences of authority
  • early experience of loss, neglect or abuse
  • early experience of offending by family members
  • being care experienced or a care leaver
  • negative influences from peers
  • difficulties relating to the misuse of drugs and/or alcohol (but note: being voluntarily intoxicated at the time of the offence is an aggravating factor)
  • low educational attainment
  • insecure housing
  • mental health difficulties
  • poverty
  • direct or indirect victim of domestic abuse

  There are a wide range of personal experiences or circumstances that may be relevant to offending behaviour. The Equal Treatment Bench Book contains useful information on social exclusion and poverty (see in particular Chapter 11, paragraphs 58 to 71). The Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guideline may also be of relevance.

• Prospects of or in work, training or education

  Effective from: 01 April 2024

  Care should be taken to avoid double counting factors including those already taken into account in assessing culpability or harm

  This factor is particularly relevant where an offender is on the cusp of custody or where the suitability of a community order is being considered.  See also the Imposition of community and custodial sentences guideline.

  Where an offender is in, or has a realistic prospect of starting, work, education or training this may indicate a willingness to rehabilitate and desist from future offending.

  Similarly, the loss of employment, education or training opportunities may have a negative impact on the likelihood of an offender being rehabilitated or desisting from future offending.

  The absence of work, training or education should never be treated as an aggravating factor.

  The court may ask for evidence of employment, training etc or the prospects of such, but should bear in mind any reasonable practical difficulties an offender may have in providing this.

  For more serious offences where a substantial period of custody is appropriate, this factor will carry less (if any) weight.