22. Sentencing principles Flashcards
what are the 5 purposes of sentencing?
- punishment of offenders
- reduction of crime
- reform and rehab of offenders
- protection of public
- reparation by offenders to those affected
when do sentencing purposes not apply?
- U18
- mandatory sentence requirements
- hospital orders
- limitation direction order
what is purpose of youth sentencing?
to prevent reoffending
what does court consider to assess seriousness of offence?
- culpability
- harm
- aggravating
- mitigating
what do court take into account for offender who has pleaded guilty?
- stage in proceedings they indicated plea
- circs in which indication was given
what reduction for G plea can be given for serious terror offence and offences where mandatory minimum sentence (only offenders over 18) applies?
sentence cannot be less than 80 per cent of the term which would otherwise be required.
where does a mandatory sentence requirement apply?
- (minimum sentence for threatening with weapon or bladed article);
- (minimum of 7 years for third class A drug trafficking offence);
- (minimum of 3 years for third domestic burglary);
- (minimum sentence for repeat offence involving weapon or bladed article).
why do they give credit for guilty pleas?
(a) normally reduces the impact of the crime upon victims,
(b) saves victims and witnesses from having to testify, and
(c) is in the public interest in that it saves public time and money
when do courts take off the reduction for G plea?
determine sentence, state reduction, take reduction. must state if reduction makes it less severe than what would otherwise have been imposed.
how is reduction for G plea done where there are multiple offences?
reduction has to be made in respect of each sentence.
what is the max reduction for G plea?
1/3 where indicated at first stage of proceedings (normally first hearing where plea or indication of plea is sought and recorded by court)
when can full reduction be given at PTPH?
where D provided an unequivocal indication of guilt in the magistrates’ court.
what are the exceptions to the general reduction for G plea?
- unreasonable to expect D to indicate G plea as soon as normal
- Newton hearing
- G plea to lesser offence
- minimum sentence of 5 years for firearms
- minimum sentence requirement applies
exception 1 - unreasonable to expect D to give plea
if there were particular circs which reduced D’s ability to understand what was alleged or it was unreasonable to expect G plea sooner than was done - reduction of 1/3 should still be made.
Exception 3 - Plea of G for lesser offence
where D made G plea for lesser offence court should give level of reduction that is usual for the stage.
Exception 2 - Newton hearing
where offenders version rejected at newton, reduction would that would have been available should be halved.
witnesses being called can decrease it further.
Exception 4 - minimum 5 year sentence for certain offences involving firearms
reduction does not go below min 5 years
exception 5 - reduction for G plea where min sentence required
applies where offender O18, reduction for G plea must not produce final sentence which is less than 80% of minimum.
considerations when using “offence committed on bail” as aggravating factor?
- must treat it as aggravating factor and state in open court
- more aggravating if same type of offence as bail offence
what to consider when treating “previous convictions” as an aggravating factor?
- nature of pre-con offence and relevance to current offence
- time elapsed since pre-con
- persistent offender
when is hostility an aggravating factor?
Applies where seriousness is aggravated by:
hostility towards: Racial, religious, disability, sexual orientation, transgender identity.
how does court deal with hostility as aggravating factor?
state in open court that aggravated by hostility and state what sentence would have been if not.
what may happen where presence of hostility disputed?
newton hearing or
some meeting/ hearing to decide
is terrorist connection an aggravating factor?
yes, court must state in open court that it is.
what is the threshold for custodial sentence?
so serious that a community sentence could not normally be justified for the offence
general aggravating factors include?
- seriousness of offence
- public denunciation of allegation
weight to be given to mitigation is …
a matter within the discretion of the court an serious nature of offence.
what factors do court look at when deciding whether to suspend?
- realistic prospect of rehab
- strong personal mitigation
- immediate custody will result in signifcant harm to others
examples of mitigation
- Good character clean record
- Remorse
- youth/immaturity
- Serious illness of offender
- Old age
- Significant delay sine offence - no fault of offender
- Significant pressure on the offender to commit offence (Short of duress)
- Provocation
- determination to address addiction or offending behaviour, and meritorious conduct unrelated to the offence
- Serious adverse impact of a custodial sentence on persons other than the offender (such as young children of a single parent) may be taken into account at the discretion of the court
- offender’s pregnancy, especially if the birth would otherwise occur during the custodial part of a prison sentence
what does court have to be satisfied of to use prevalence as an aggravating factor?
necessary that the appropriate evidence be received and that the evidence does actually demonstrate a particular local problem.
what are the 2 elements of the totality principle?
- the overall sentence should reflect all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors; and
- be just and proportionate.
is a PSR required for an offender aged 18 or over?
yes. court must obtain and consider PSR UNLESS it is unnecessary.
is a PSR required for an offender under 18?
Yes. Court must obtain one UNLESS there is already a PSR for that offender AND on that basis, it is unnecessary to obtain a new one.
when is a medical report obtained?
where offender IS or APPEARS TO BE suffering from mental disorder, court MUST obtain medical report before passing custodial sentence UNLESS unnecessary to do so.
what is a victim personal statement?
shows impact which offence had on victim / victims family.
when can judge give indication on sentence?
when D asks for one
what options does the court have when D asks for indication ?
- can state that sentence/type would be same regardless of plea/found G
- can give indication of what sentence would be if G plea entered
- can refuse to give one
- can postpone giving one (usually with reasons and state when they would be prepared to respond)
can D make more than one indication of sentence request?
if indication has been refused can make further request