Moved by
Lord Ponsonby of Shulbrede
212: After Clause 124, insert the following new Clause—
“Short custodial sentences
(1) The Sentencing Code is amended as follows.
(2) In section 230 (threshold for imposing discretionary custodial sentence), after subsection (2) insert—
“(2A) If the court finds that the offence is so serious that neither a fine alone or a community sentence can be justified for the offence, it must state its reasons for being satisfied that the offence is so serious (having regard to the considerations in subsection (2B)), and, in particular, why a community order with appropriate requirements could not be justified.
(2B) In this determination, the court must take account of the following principles—
(a) passing the custody threshold does not mean that a custodial sentence should be deemed inevitable;
(b) custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime;
(c) sentences should not necessarily escalate from one community order range to the next at each sentencing occasion;
(d) the decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s);
(e) section 65 (a relevant previous conviction to be treated as an aggravating factor) should not be interpreted so as to meet the custody threshold in respect of the sentence for one or more offences that would not themselves justify custody; and
(f) where the offender being sentenced is a primary carer for a child, 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.”
(3) After section 230, insert—
“230A Impact of custodial sentence on child or unborn child
(1) This section applies where a court is considering imposing a custodial sentence on—
(a) a primary carer for a child, or
(b) a pregnant woman.
(2) The sentencing court must—
(a) consider the impact of a custodial sentence on the child or unborn child, and
(b) presume (subject to victim impact and any other sentencing considerations) that a non-custodial sentence is in the best interests of the child or unborn child.
(3) In this section—
(a) “child” means a person under the age of 18, and
(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””