11. Sentencing

Question 1

Statutory aggravating factors (main four)

Answer 1

1. Previous convictions
2. offences committed whilst on bail
3. racial or religious aggravation
4. hostility based on sexual orientation or disability

Question 2

Other aggravating factors

Answer 2

1. offences that are planned or premeditated;
2. offenders operating in groups or gangs;
3. the deliberate targeting of vulnerable groups (such as the elderly or disabled victims);
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 the offence;
7. offences involving the abuse of a position of trust;
8. offences committed against those working in the public sector or providing a service to the public;
9. in property offences, the high value (including sentimental value) of property to the victim; and
10. failure to respond to previous sentences.

Question 3

Mitigating Factors

Answer 3

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 or old (particularly in the case of young offenders who are immature and have been led astray by others);
5. the fact that the defendant played only a minor role in the offending;
6. defendants who were motivated by genuine fear; and
7. defendants who have made attempts to make reparation to their victim.

Question 4

Statutory Reduction in Sentence for a Guilty Plea: Who does it apply to? Where? Any restricting factors?

Answer 4

1. Applies to all defendants aged 18 or over and all cases, regardless of the date of the offence
2. Applies in MC and CC
3. Stage in the proceedings where guilty plea is made / indicated

Question 5

Does the strength of the prosecution case have any baring on whether a defendant is eligible for a statutory reduction in sentence for a guilty plea?

Answer 5

NO

Question 6

Largest discount on sentence from a guilty plea - when is this available?

Answer 6

1. 1/3
2. on a guilty plea in first hearing in MC
3. on guilty plea in first hearing in MC where case in committed for sentence to CC
4. on indication of guilty plea in MC to an offence triable only on indictment, followed by guilty plea in first hearing at CC (indication must be direct not intention of likelihood)

Question 7

If the defendant does not indicate a guilty plea at an early stage in the proceedings, will it be impossible to get the maximum reduction

Answer 7

Not necessarily - D may be entitled to this reduction if it would have been unreasonable to expect them to indicate a guilty plea at the first hearing

Question 8

Where a plea is indicated AFTER the first stage but BEFORE the first day of trial: discount in sentence?

Answer 8

1/4 (ie. if guilty plea at PTPH)

Question 9

Indication of guilty plea given on the first day of trial: maximum potential amount

Answer 9

Maximum amount is 1/10

Question 10

How are harm / culpability used to provide guidance for sentencing across offences?

Answer 10

Harm : two categories
Culpability : three levels
- Cross referencing these indicates the range of sentence which is appropriate, taking into account the maximum sentence for each offence

Question 11

Offence Category: Category 1

Answer 11

Greater harm and enhanced culpability

Question 12

Offence Category: Category 2

Answer 12

Greater harm or enhanced culpability

Question 13

Offence Category: Category 3

Answer 13

Lesser harm and a lower level of culpability

Question 14

Levels of culpability

Answer 14

1. the offender has intention to cause harm, highest when offence is planned
2. is reckless as to whether harm is caused
3. has knowledge of specific risks entailed by their actions even if they do not intend to cause the harm
4. is guilty of negligence

Question 15

When will an EXTENDED sentence be imposed for an offence

Answer 15

Section 61 of the Sentencing Act 2020 sets out the circumstances as to when a court will be required to consider imposing such a sentence, where for example the offender is classified as a dangerous offender

Question 16

What does the totality principle entail?

Answer 16

When the offender is being sentenced to multiple offences, totality principle requires the court to ensure that the overall sentence is proportionate

Question 17

Does the court need to give reasons for imposing a certain sentence?

Answer 17

Yes - reasons should include reasons for the sentence it is imposing, including explaining the effect of the sentence, effect of non-compliance and identify sentencing guidelines followed

Question 18

When must the court consider the question of concurrent v consecutive sentences?

Answer 18

If the court is sentencing an offender to a custodial sentence for two or more offences. Separate sentences of imprisonment may be concurrent or consecutive

Question 19

When would consecutive sentences be imposed?

Answer 19

1. Custodial sentence for two or more offences
2. If the matters of fact arise out of different incidents

Question 20

When would concurrent sentences be imposed?

Answer 20

1.Custodial sentence for two or more offences
2. If the matters of fact arise out of the same incident (ie. if one offence would not have occurred without the previous one) or they arise out of different incidents but the court is applying totality principle (total sentence would be too long)

Question 21

Can courts adjust sentences within or beyond ordinary limits when sentencing concurrently / consecutively?

Answer 21

1. Concurrent: upward adjustment may be appropriate to make sure sentence is proportionate
2. Consecutive: downward adjustment permitted

Question 22

In which court is a pre-sentence report relevant?

Answer 22

MC

Question 23

Who prepares the pre-sentence report?

Answer 23

The probation service (at the request of the defence representative)

Question 24

When should a pre-sentence report be prepared?

Answer 24

Before the first hearing in the MC

Question 25

When will D’s advocate ask the probation service to prepare a pre-sentence report?

Answer 25

1. D will plead guilty to all offences charged on the full prosecution facts and
2. D agrees to co-operate with the probation service to prepare a report

Question 26

Does a pre-sentence report restrict the sentencing options of the court?

Answer 26

no - court still has all options

Question 27

Must the court have a pre-sentence report to proceed to sentencing

Answer 27

No, if it is unnecessary in the circumstances (ie. custodial sentence is inevitable)

Question 28

Generally, a court must obtain and consider a pre-sentence report before forming an opinion on:

Answer 28

1. Whether custody threshold has been passed (and if so, how long custodial sentence should be) and
2. whether threshold for imposing a community sentence has been passed and, if it has, the requirements that should be imposed on the defendant under a generic community order

Question 29

Structure of a plea in mitigation

Answer 29

(Outlined by the defence advocate)
1. the likely sentence
2. the offence
3. the offender
4. the suggested sentence

Question 30

At what point in a plea in mitigation will the mitigating circumstances be explained

Answer 30

1. During the explanation of the offence, mitigating factors relating to the offence ITSELF are emphasised
2. during the explanation of the offender, mitigating circumstances relating to the offender / their personal capacity are explained

Question 31

Custodial Sentence

Answer 31

Most serious sentences requiring defendant to serve time in ‘custody’

Question 32

Guidelines for when the court can pass a custodial sentence

Answer 32

the court CANNOT pass a custodial sentence unless they believe that the offence / combination is SO serious that fine / community sentence are insufficient
- Custody threshold must be passed (clearly)

Question 33

If an offender expresses an unwillingness to take part in a community sentence - is this grounds for passing a custodial sentence?

Answer 33

No, the custody threshold must be passed

Question 34

Sentencing powers of MC for custodial sentences

Answer 34

Maximum sentence is 6 months (can be 12 if there are two consecutive 6 month sentences for two or more either-way offences)

Question 35

Where would a custodial sentence be served for an offender aged between 19-21

Answer 35

any custodial sentence will not be served in prison but in a young offender institution (YOI)

Question 36

When will an offender be ‘automatically released’ from their custodial sentence?

Answer 36

a) Adults with Custodial Sentences of 2 years or less
Halfway through (if offence committed after 1 Feb 2015) and remain on license in the community until the end of the sentence (and supervised for 12 months)
b) Adults with custodial sentences of >2 years are also released halfway through (and on license in community for remainder) UNLESS they are an offender of particular concern

Question 37

Offender of particular concern: When will they be automatically released during a custodial sentence (if at all)

Answer 37

These offenders are NOT entitled for automatic release but can apply for parole from the halfway point of their sentence and will be released at any point from this application to the end of the sentence

Question 38

Which custodial sentences can be ‘suspended’?And for how long?

Answer 38

a custodial sentence of at least 14 days but no more than two years (or 12 months for MC) may be suspended for between six months and two years in the Crown Court. The period of suspension is known as the operational period.

Question 39

Aggravating factor for assaults: Identify of the victim

Answer 39

Those providing a public service

Question 40

Sentencing: If there is a dispute about the factual basis of the offence between the prosecution and defence (and this could impact sentence) - how should the court sentence?

Answer 40

the court must either accept the defendant’s version of events, or allow both the prosecution and the defendant to call evidence so that the sentencing court can determine the true factual circumstances of the offence (at a Newton hearing)

Question 41

When will a Newton Hearing be held:

Answer 41

If the defendant pleas guilty but disputes a factual point of the prosecution case which would determine the severity of their sentence

• and this cannot be resolved through a basis of plea (if one exists)

Question 42

‘A basis of plea’

Answer 42

A document made by defence which gives their factual version of events that they accept. If accepted by CPS and judge it will be used as basis for the sentence.

Question 43

When will a basis of plea presented by a defendant NOT be accepted:

Answer 43

If it is rejected by the prosecution AND the judge thinks that the version put forward by the prosecution are sufficiently more serious so as to justify a higher sentence - there will be a Newton Hearing

Question 44

Possible duration of a conditional discharge, and consequences of breaching it

Answer 44

a conditional discharge is imposed for a specified period not exceeding three years and, should the client commit any further offences during that period, she will be sentenced for both the previous offence and the subsequent offence.

Question 45

When will the court impose a suspended sentence instead of a standard custodial sentence?

Answer 45

The court can impose a suspended sentence if it considers that particular circumstances exist which justify the suspension of the sentence. Such circumstances may exist, for example, where the defendant is a single parent looking after a disabled child, who might otherwise need to go into a care home if the defendant has to serve a custodial sentence

Question 46

D is 10 months into serving a 12 month suspended sentence. They are convicted of a non-imprisonable offence. What will happen?

Answer 46

The sentence will be ‘activated’ as a crime was committed during the operational period - it does not matter that the offence is not imprisonable

Question 47

Key considerations for the court when sentencing: how do they determine where within the ‘limits’ of the sentencing guidelines the defendant falls?

Answer 47

When sentencing the court will look at the defendant’s level of culpability in committing the offence and any harm which the offence caused or was intended to cause or might have caused to others etc.