What role Thomas’ work has had in defining and shaping sentencing law is an important consideration. In the early 20th century, sentencing was a practice
conducted by judicial officers, but decisions made on sentencing were considered to have no precedential value.618 This position has changed both in the UK and in
Australia with appellate courts finding that sentencing decisions could be ‘wrong in principle’.619
Martin Wasik has professed that Thomas both discovered and shaped the law of sentencing as a discipline.620 The influence of Thomas’ work upon the discipline is
615 Ibid 191. 616 Ibid. 617 Ibid.
618 Martin Wasik, ‘Going Around in Circles? Reflections on Fifty Years of Change in Sentencing’ (2004)
Apr Criminal Law Review 253, 259.
619 Martin Wasik, ‘Going Around in Circles? Reflections on Fifty Years of Change in Sentencing’ (2004)
Apr Criminal Law Review 253, 260-261; Andrew Ashworth, Sentencing and Criminal Justice
(Cambridge University Press, 4th ed, 2005) 35-36. See also ‘Chapter One, Sentencing Jurisprudence’. 620 Martin Wasik, ‘Going Around in Circles? Reflections on Fifty Years of Change in Sentencing’ (2004)
widely acknowledged.621 Alec Samuels, reviewing the second edition of the Principles of Sentencing in the Modern Law Review, remarked,
Whether judges were consciously applying principles and we did not know about it, or whether they were unconsciously applying principles, or whether David Thomas rationalising ex post facto, making “principles” out of a
haphazard myriad of isolate instances, bringing order out of chaos, we do not know. What is certain is that in recent years the judges have frequently consulted the first edition, openly or surreptitiously, and thus for the first time in history some sort of systematised and systematic communication of
information has gone out to the judiciary.622
As it was observed in Chapter Two, the extent of Thomas’ contribution to the field of sentencing means that his work is regarded today as a secondary source of law.623
A review of the judgments of the Court of Appeal Criminal Division immediately following the publication of the Principles of Sentencing illustrates a clear practice of referencing the Principles of Sentencing on family considerations as a mitigating factor.624 For example, in R v Sumners the Court of Appeal considered Thomas’
commentary on family considerations.625 The headnote for this reported case
provided ‘Family Circumstances – Whether a Mitigating Factor – Exceptional Circumstances’.626 Highlighting that it was still an unresolved matter as to whether
this was a mitigating factor or not under the common law.
In R v Sumners,627 the Court of Appeal Criminal Division found that an offender
who had been convicted of theft (in breach of trust) should have his sentence reduced from four to three years as his wife was undergoing a serious operation
621 See, eg, Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 4th ed,
2005) 31-36; Kate Warner, ‘Sentencing Scholarship in Australia’ (2006-2007) 18(2) Current Issues in Criminal Justice 241, 243.
622 Alec Samuels, ‘Review: Principles of Sentencing: The sentencing policy of the Court of Appeal
Criminal Division. Second Edition. By David Thomas’ (1979) 42(5) The Modern Law Review 598, 598- 599.
623 See Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 5th ed, 2010)
24.
624 See R v Sumners (1979) 1 Cr App R (S) 13; R v Franklyn (1981) 3 Cr App R (S) 65; R v Vaughan
(1982) 4 Cr App R (S) 83; R v Haleth (1982) 4 Cr App R (S) 178.
625R v Sumners (1979) 1 Cr App R (S) 13 referencing David Thomas, Principles of Sentencing: The
Sentencing Policy of the Court of Appeal Criminal Division (Heinemann, 2nd ed, 1979) 212. 626R v Sumners (1979) 1 Cr App R (S) 13, 13
and their four teenage boys would be left without parental supervision.628 The
Court held
…having heard what Mr Baughan has had to say about the special family circumstances – the family, as in many other cases, are the principal sufferers – we find it possible to accede to his plea and, as an act of mercy, to reduce the sentence from four years to three years.629
It appears that the Court found that there were special circumstances (falling within the third exception identified by Thomas, see above). However, there is also a clear reference to ‘an act of mercy’, which was not strictly necessary under Thomas’ approach to family considerations as a mitigating factor.630
In 1981 in R v Franklyn,631 Thomas’ text was cited as a reference on the point of
family considerations as mitigating factors.632 Here the headnote for the case was
‘Mitigating – Family Circumstances – Single Parent Family Deprived of Parental Care by Imprisonment of Offender – Whether a Relevant Consideration.’633 In this
case, the Court of Appeal reduced the sentence on the basis of children being deprived of parental care. The male offender was a sole parent of four children (5, 10, 13 and 16 years of age) who had assaulted a police officer occasioning actual bodily harm. The children had reacted badly to foster care and had returned to the family home with the eldest child taking responsibility for raising his siblings.634
The Court stated:
That situation cannot last very long. In short, unless this man is let out fairly quickly, the chances are that the community will be left with a delinquent family. I do not suppose even the police officer who was assaulted would like that to happen. This Court does not.635
Finding ‘wholly exceptional circumstances’ the appeal was successful, and the sentence was reduced from six months to twenty-one days thus enabling the
628 Ibid 14. 629 Ibid 14.
630 See discussion above and see David Thomas, Principles of Sentencing: The Sentencing Policy of the
Court of Appeal Criminal Division (Heinemann, 2nd ed, 1979) 211-212. In the first edition Thomas had
noted that reliance on mercy could occur when no other mitigating factor applied, see David Thomas,
Principles of Sentencing: The Sentencing Policy of the Court of Appeal Criminal Division (Heinemann, 1970) 199. 631 (1981) 3 Cr App R (S) 65. 632R v Franklyn (1981) 3 Cr App R (S) 65, 65. 633 Ibid. 634 Ibid, 66. 635 Ibid.
offender’s immediate release from custody.636 There was no reference to the term
‘mercy’ in this judgment.
In R v Vaughan637 and R v Haleth638 both heard before the Court of Appeal Criminal
Division in 1982, the Principles of Sentencing was once again cited as a reference for the judgment.639 These two cases also dealt with children being left without
parental care. Janet Vaughan had been convicted of three offences of handling stolen money (with eighteen further offences taken into account at sentence).640
Her husband was also a party to the crimes and had been sentenced to
imprisonment. The Court said that the sentence of nine months’ imprisonment imposed upon her was appropriate, ‘[b]ut there is an extra circumstance here, which in mercy and compassion this Court finds compelling…’.641 Some of their
children suffered from health and mental disabilities and the Court found that this, coupled with the absence of both parents and the current care arrangements (friends and neighbours) was not satisfactory having regard to the ‘welfare of the children’.642
Mr Haleth had been convicted of affray (involving violence) and sentenced to twelve months’ imprisonment.643 The offender’s wife and son suffered from a
kidney disease, his wife had died from this disease ‘not very long after he committed the offence’.644 The Court received evidence from a consultant
paediatrician that it was not in the son’s interests that he suffers the anxiety arising from the imprisonment of his father.645 The Court stated,
We think that the time has come when the mercy of this Court can be shown to this appellant so that he can go home to look after his boy. It is upon this ground alone, that we see fit to bring about his immediate release.646
The sentence was suspended for two years.647
636 Ibid.
637 (1982) 4 Cr App R (S) 83. 638 (1982) 4 Cr App R (S) 178.
639R v Vaughan (1982) 4 Cr App R (S) 83,83; R v Haleth (1982) 4 Cr App R (S) 178, 178. 640R v Vaughan (1982) 4 Cr App R (S) 83, 83. 641 Ibid 84. 642 Ibid. 643R v Haleth (1982) 4 Cr App R (S) 178, 178. 644 Ibid 179. 645 Ibid. 646 Ibid. 647 Ibid.
A review of these cases illustrates that none of these cases directly cited case law as authority for the approach to mitigating the sentence on the basis of the impact of the sentence upon dependants nor for mitigation of sentence where children will be without parental care. The Principles of Sentencing was cited as a reference in all of these cases which demonstrates that the text played a key role in shaping the development of the common law.
‘Mercy’ appears to be significantly tied into grants of leniency in sentencing in these cases. In three of the four cases reviewed, the Court of Appeal Criminal Division references ‘mercy’ as a justification for a reduction in sentence when dealing with hardship to an offender’s family. What is not clear is whether there is clear acknowledgment by the Court of what could be identified as a ‘sentencing principle’ of taking family hardship into account in exceptional circumstances. In the cases discussed above, there was no express recognition that family hardship can only be taken into account in exceptional circumstances as a principle of sentencing. Rather, the sentencing principle in that form appears to have been promoted by Thomas.648
Family hardship is a sentencing factor which has been raised in pleas in mitigation before courts and this is evidenced in our earliest common law court records. Family hardship was recognised by Thomas as a legitimate sentencing factor but was marginalised by him by the addition of an exceptional circumstances
qualification. Deterrence and rehabilitation were privileged by Thomas in his analysis of the policy of the Court of Appeal Criminal Division. The materialisation of the policies of a court and the resulting development of a principle of sentencing that hardship to offender’s families will only be taken into account in sentencing in exceptional circumstances have had a long-lasting legacy.649
648 David Thomas, Principles of Sentencing: The Sentencing Policy of the Court of Appeal Criminal
Division (Heinemann, 2nd ed, 1979) 211.
C. Examples of Family Hardship Being Disconnected from Sentencing