Although no two courts cases are ever the same the approach usually taken by the court is as follows:

  • The court considers the maximum sentence for the offence and what types of sentence are available.

  • Consideration is given as to whether there are any guidelines that might assist.The court will generally consider guidelines of the Sentencing Council of England and Wales as being persuasive, but it will adapt them to fit the law and circumstances of the Falkland Islands.

  • The court will assess how serious the offence is of its type. Usually, the more serious the offence, the higher the sentence

  • The court will consider if there has been any harm caused to the victim. This might be physical, emotional, psychological, or financial harm.

  • The court may look at how prevalent the offence is in society and whether there needs to be an element of deterrence in the sentence. Is the offence becoming a real nuisance or threat to the community? Even if there is no specific victim, the court may consider whether the community is suffering from this behaviour in general. Examples of this might include graffiti or public disorder involving drunken people or targeting a racial group. For a deterrent sentence to be passed, there should normally be clear evidence before the court that the offence is a real problem.

  • The court will consider how culpable (blameworthy) the offender is. Was the offence committed on the spur of the moment or was it planned? Was a victim specifically targeted? Was the victim known to be particularly vulnerable?

  • The court will consider the offender’s criminal history (commonly referred to in court as antecedents). It is likely that an offender who has already committed other similar crimes will be treated more severely by the court.

  • The court will consider what mitigation there may be which relates to the offence itself. This will include a reason for the offending, if there is any. Examples of relevant matters may be whether the offence was provoked or were there other reasons for the offence which excused it to some extent without providing an actual defence.

  • The court will consider the individual circumstances of the offender. This will include the age of the offender, whether the offender is employed and the effect a sentence may have on this, the offender's income and if the offender has responsibilities such as dependents. The court may take account of the offender’s wider character, and if there are good references.

  • The court will consider whether there any other relevant factors to consider such as the offender giving significant help to the authorities in catching other offenders.

  • The court will then consider whether there should be an reduction to the sentence because the offender has pleaded guilty. A guilty plea will usually prevent a victim or witness from the stresses associated with having to give evidence, and it means that justice can be carried out more expeditiously, saving time and money. The court may also regard it as an indication that the offender is genuinely sorry. If an offender pleads guilty the court will usually pass a lower sentence. The later the guilty plea the lower the reduction that will be allowed.

  • Where the case is before the Summary Court, consideration must be given as to whether that court has sufficient powers available to it to pass the appropriate sentence. If not, the case will be committed for sentence to the Magistrate’s Court.

  • The court will consider whether there any other ancillary orders that need to be made, such as disqualification from driving or the confiscation of proceeds of crime.

  • The court usually also orders an offender to pay a contribution towards the prosecutor's costs for bringing the case.

  • The court must consider making a compensation order if a victim has sufferred loss or harm.  If the court decides not to award compensation in a case where it could do so, it must give its reasons for not so doing.

  • When deciding the level of a fine the court must consider the offender's financial situation.  The general principles are that a wealthy offender should receive a greater fine than a less wealthy offender, so that the impact of the fine is proportionately similar.