Proportionality, Sentencing and the Multiple Offender

Abstract

This article develops a numerical framework governing the application of the principle of proportionality to the sentencing of cases comprising multiple separate offences each warranting imprisonment. The solution offered is based on an understanding, formulated by two English lawyers, that in the cumulation of sentence proportionality should be maintained between the seriousness of classes of offence: for example, no number of trivial offences warrant a sentence appropriate to a single moderately serious offence; to achieve this, cumulation of sentence across offences is in effect by decreasing gains. To operationalize this notion, pairs of offences were selected, and seriousness levels were quantified, using official statistics. The result was statements of proportionality: for example, for a case comprising secondary offences each warranting 1.2 years and together totalling 100 years, not more than 2.7 years should be added on to the sentence for the principal offence. From this a curve was calibrated as a representation of the cumulation of sentence. This framework offers a better understanding of the principle of proportionality in regard to the multiple offender, and has implications for guidance. Moreover, it provides a numerical standard against which to investigate whether judicial practice satisfies the principle of proportionality in this type of case.