Theft: aggravating and mitigating factors

Introduction

In the discussion of Parajika 2, if theft involves aggravating factors, such as violence or unlawful entry, monks involved in such acts of theft are more likely to be prosecuted, even for theft of trivial amounts. And if they are prosecuted, the theft might reasonably be regarded as a parajika offence, even if they stole under a pada. However, including aggravating and mitigating factors in the judgement of theft is a challenging exercise.

The challenge of sentencing

The difficulty of sentencing is described in the Sentencing Guidelines Council Guideline Judgments Case Compendium: “Sentencing is a complex and difficult exercise. It can never be a rigid, mechanistic or scientific process. Perfect consistency in outcome is impossible to achieve because of the infinite variety of circumstances with which, even in relation to one kind of offence, the courts are presented. In choosing a fair and just sentence in a particular case, judges and magistrates, within the parameters established by Parliament, must have regard to the gravity of the offence, its impact on the victim, the circumstances of the offender and the wider public interest. In relation to all these matters they must exercise judgement and discretion”.

Sentences for theft: aggravating factors

Research into the modern sentencing shows the following factors result in more severe sentences.

repeat offenders versus first-time offenders.
a planned theft versus an impulsive theft.
operating in groups versus on one’s own.
having previous convictions.
using others to commit the offence e.g. a child or a relative.
stealing from a particularly vulnerable victim (e.g. small shop with one shopkeeper).
being difficult to detain after the theft, even if just pushing and shoving.
being caught after only an investigation.
attempting to conceal or dispose of evidence.
using a weapon to frighten the victim.
offence against those providing a service to the public.
theft involving breach of trust (e.g. theft from a store by a storeman).
theft involving unlawful entry (vs stealing from a shop).
theft involving invasion of a private space (vs. from a shop) (Sentencing Advisory Panel 2006 at www.sentencing-guidelines.gov.uk).
‘Theft from the person’. This means theft, without force, of property being held by another person or within their arms reach; for example, pick-pocketing or purse-snatching from a shopping cart. These types of theft receive an enhanced sentence because of the risk of physical injury (United States Sentencing Commission, Guidelines Manual, 2005).

Sentences for theft: mitigating factors

Certain mitigating factors lead to lighter sentencing:

if the offence is committed in desperation or need (e.g. due to starvation).
if the culprit is suffering mental illness or disability.
if there is unusual provocation.
if the culprit is either very young or very old, if this affects responsibility (Sentencing Advisory Panel 2006 at www.sentencing-guidelines.gov.uk).