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
What do aggravating and mitigating factors do
Increase or decrease the starting point of the sentence or sentencing range
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 - seriousness of the offence (culpability and harm)
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 - consecutive and concurrent
7) Compensation
8) Giving reasons
Overriding principle of the totality principle
The overall sentence should reflect all of the offending behaviour with reference to overall harm and culpability together with aggravating and mitigating factors and be just and proportionate
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
Defence will put forward arguments to persuade the court to impose the most lenient sentence appropriate. They will try to persuade the court not to impose an immediate custodial sentence but instead either to suspend it or impose the bottom end of the range
Overview of a plea in mitigation
Starting point is to identify the likely sentence. They will then address the circumstances of the offence. They will attempt to minimise any aggravating factors. They will then put forward personal mitigation available to the defendant. They will conclude it to suggest to the court the lowest sentence which it can impose.
5 purposes of sentencing that the court must consider
1) Punishment of offenders
2) Reduction in crime
3) Reform and rehabilitation of the offender
4) Protection of the public
5) Reparation by the offender to the victim
Types of sentence - Definition
The range of sentences is sometimes described as a sentencing pyramid. You work from the top downwards:
- Custody
- Suspended sentence
- Community sentence
- Fine
- Discharge
When will the court allow a suspended sentence
If they consider that there are particular circumstances which justify this e.g sole carer for elderly parents
Custodial sentences
Most offences which carry a custodial sentence allow the sentencing court a discretion as to whether a custodial sentence should be imposed and the length of the sentence. Limited no. of exceptions where an offence carries either a mandatory sentence or a mandatory minimum term of imprisonment.
Custodial sentence - Where the court has a discretion to pass a custodial sentence
It must apply custody threshold test - The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
Only if this threshold is passed may the court impose a custodial sentence
Types of sentence - Custodial sentences - Determining the length of the sentence
A custodial sentence must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more other offences associated with it
Suspended sentences
This is a custodial sentence where the offender does not have to go to prison provided that they commit no further offences and comply with any requirements imposed. They are used only when the custodial sentence is no longer than 2 years.
Suspended sentences - Requirements for dealing with a breached suspended sentence
General rule if a further offence is committed during the operational period is for a custodial sentence to be imposed for present/new offence and the suspended sentence will be activated to run fully and consecutively
Community order
The court may choose from a menu of options and select those which are most appropriate. E.g:
- Unpaid work requirement
- Activity requirement
- Programme requirement
- Prohibited activity requirement
- Curfew requirement
- Exclusion requirement
- Residence requirement
- Mental health treatment requirement
- Drug rehabilitation requirement
- Alcohol treatment requirement
- Supervision requirement
- Attendance centre requirement
- Foreign travel prohibition requirement
Newton Hearings
Occurs when the defendant has pleaded guilty to the offence but on the basis of a different version of facts from that of the prosecution and the court has concluded that the factual differences would make a material difference to sentence imposed
When will they typically be released
After serving half their sentence
Basis of plea - Definition
A defendant’s proposed factual version of events when pleading guilty
Sentencing and basis of plea
If there is a basis of plea then the sentencing court should sentence on the agreed basis of plea. Although the court is not bound by an agreed basis of plea the court should hold a newton hearing to determine what the basis of facts should be
