11) Sentencing Flashcards
Duty of the court
Every court has a duty to follow the sentencing guidelines unless it is satisfied that it would be contrary to the interests of justice to do so
What will they look at to determine the sentence
1) Culpability
2) Harm
Then they will look at aggravating and mitigating factors to determine the seriousness
Statutory aggravating factors
Treats an offence as being more serious than it would otherwise have done:
1) Previous convictions - if
the offences have been committed recently and/or are for similar types of offence.
2) Offences committed whilst on bail
3) Racial or religious aggravation
4) Hostility based on sexual orientation or disability
Other aggravating factors
1) Planned or pre-meditated
2) Offenders operating in groups or gangs
3) The deliberate targeting of vulnerable groups
4) Offences committed whilst under the influence of drink or drugs
5) The use of a weapon
6) Deliberate and gratuitous violence or damage to property beyond that required to carry out offence
7) Offences involving abuse of a position of trust
8) Offences committed against those working in the public sector
9) in property offences the high value of property to victim
10) Failure to respond to previous sentences
Mitigating factors
1) Offences where the defendant has acted on impulse
2) When the defendant has experienced a greater degree of provocation than normally expected
3) Defendants who are suffering from mental illness or physical disability
4) If the defendant is particularly young/old
5) The fact that the defendant played only a minor role in the offending
6) Defendants who were motivated by genuine fear
7) Defendants who have made attempts to make reparation to their victim
Reduction of sentence due to a guilty plea - First appearance
The full one third discount on sentence will only be available where a guilty plea is indicated at the first stage of proceedings:
- On a guilty plea at the first hearing in magistrates
- On indication of a guilty plea in the magistrates court to an offence triable only on indictment followed by a guilty plea at the first hearing in crown court
Reduction of sentence after first appearance
Where a guilty plea is indicated after this first stage the maximum level of reduction is one quarter - PTPH
The reduction should then decrease from one quarter to a minimum of one tenth where a guilty plea is entered on 1st day of trial
How the sentencing guidelines work
1) Determine offence category for culpability and harm - helps get a category range
2) Use aggravating and mitigating factors to shape sentence
3) Any factors which reduce sentence e.g assisting prosecution
4) Reduction in sentence due to guilty plea
5) Extended sentence e.g if they’re a dangerous offender
6) Totality principle - are they being sentenced for multiple offences
7) Compensation
8) Giving reasons
Concurrent sentences
At the same time as each other will usually arise out of the same incident or facts, there is a series of offences of the same or similar kind
Consecutive
One sentence will start after the other. Offences arise out of unrelated facts or incidents. Offences committed in the same incident are distinct, involving an aggravating element
that requires separate recognition
How to determine consecutive sentence
Impossible to arrive at a just and proportionate sentence simply by
adding together notional single sentences. Ordinarily some downward adjustment is required.
How to determine concurrent sentence
It will often be the case that the notional
sentence on any single offence will not adequately reflect the overall offending. Ordinarily some upward adjustment is required and may have the effect of going outside the category range appropriate for a single offence
General approach to consecutive and concurrent
1) Consider the sentence for each individual offence
2) Determine whether the case calls for concurrent or consecutive sentences
3) Test the overall sentence against the requirement that the total sentence is just and
proportionate to the offending as a whole.
Pre-sentence report before plea - When to ask for one
Will only happen if they’re pleading guilty and they’re likely to be sentenced in the magistrates court. And the defendant will agree to co-operate with the probation service to prepare a report. Also if the offence is serious enough for a community order and a pre-sentence report is likely
to be necessary
Pleas in mitigation
Speech presenting mitigation on behalf of the defendant before the sentencing court then considers and imposes its sentence. The objective is to persuade the sentencing court to impose upon the defendant the most lenient sentence which the court could reasonably be expected to give for that offence
