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
are indications binding
yes, on both judge who gives it and any other judge.
when will court initiate process on second request for indication?
only where circs have changed sufficiently
when might indication cease to be binding?
where guideline from COA changes sentencing level or new sentencing guideline issued
when will judge refuse indication
where there is not an agreed written basis of plea
who asks for indication?
defence only. judge can remind them of their right to ask for one.
what does counsel need to ask for indication?
signed written authority that client wants an indication
what do defence counsel have to make sure client understands before asking for indication?
- not to plead G unless G
- sentence subject to AG referral for unduly lenient
- indication ceases to have effect if not accepted at time
- indication relates only to matters for which it is sought
can an unrepresented accused ask for an indication?
yes. court / pros should not ask for one as would be seen as improper pressure.
what responsibilities do pros counsel have during indication process?
- make sure court has all evidence they rely on inc VPS
- draw judge to min/mandatory sentencing requirements and guidelines
- remind judge of AG unduly lenient entitlement
what are the prosecution responsibilities when discussing plea/sentence in chambers?
- remind of desirability of independent record & make full note
- not take part if circs are not exceptional
- not do or say anything that could be seen as agreement with sentence
- seek leave to refer any sentence as unduly lenient
when is indication usually sought?
at plea and case management hearing, following a written application.
how should indication hearing take place?
- open court
- full recording
- both sides represented
- accused present
what process should be followed in complex/difficult cases when seeking indication?
notice of intention to seek indication should normally be given in writing to pros and court
how long does accused have to take advantage of indication?
has to take advantage within a reasonable period (by reference to circs of case).
is evidence of indication / notice to request indication admissible?
no, inadmissible in any subsequent trial.
CC - what is the sentencing procedure for trial on indictment?
first ascertain basis
second consider:
* character of offender
* obtain PSR if necessary
* consider mitigation
then sentence.
CC - duties of pros to ascertain facts after G plea?
where offender pleads G, pros should summarise facts of offence
CC - role of prosecution during sentencing?
- only give ev of impact on victim if contained in VPS
- counsel requires to address ancillary orders
- assist court in avoiding appealable error
- prepare plea and sentence doc identifying aggravating & mitigating factors (only in some cases)
CC - general rule when one D pleads guilty and co-D does not?
sentencing of G plea adjourned until conclusion of trial of co-d
CC - do the defence have a right to see VPS?
yes they have right to see contents of it and respond appropriately.
CC - what duty do counsel have to assist court with sentencing?
to ensure no order is made which the court would not have the power to make.
(i.e. in line with legal sentencing powers and guidelines)
CC - how can judge approach sentencing where basis disputed?
- obtain answer from jury
- hear ev from both sides and make own conclusion
- hear no evidence but submissions of counsel and come to own conclusion.
when hearing submissions - where there is a substantial conflict between the two sides, he must come down on the side of the defendant
CC - what is duty of defence to factual disputes?
defence should set out basis
basis must be:
* written and
* unequivocal and unambiguous
inform court in advance of hearing that there is a dispute and def want newton
CC - what is duty of pros to factual disputes?
alert court to potential need to resolve factual issue
CC - what is the overriding consideration for court?
offender is sentenced on basis that is true and proper. Judge can order newton hearing even where basis agreed.
CC - when are newton hearings unnecessary?
where dispute insignificant (sentence same regardless of basis)
* where defence version is manifestly absurd (so implausible that judge ought not to be obliged to waste time)
CC - what are the steps required when basis disputed?
- basis written and uploaded on DCS
- pros reply uploaded
- court consider basis
- doc recording agreed basis signed by both reps and given to judge prior to case opening
- pros to tell judge of all material factual disputes
- court to hear reps about whether dispute is material
- judge can insist evidence to be called
- D called where needed - if he refuses inference can be drawn
- judge decides whether newton needed (BYRD proof exists)
CC - what is done where basis cannot be decided BYRD?
defence version accepted
CC - what is the general principle where facts are disputed following G verdict?
- sentencer to form view as to facts of offence
- jury not asked to state factual basis
- pros can put counts to jury that have distinct factual bases
CC - when can sentencer be properly influenced by other offences not officially before court?
- taking into account less serious secondary offence which is implicit in primary offence
- if offender expressly asks
- if prosecution case is that counts on indictment are samples of continuing course of conduct and defence accept this.
CC - taking other offences into consideration requires…
consent of offender, police and court
CC - who submits PSR?
appropriate officer to assist court and suggest most suitable method
appropriate officer =
* probation (if offender 18 or over)
* probation/social/youthoffendingteam (offender 13-17)
* social workers (U13)
CC - when is PSR required?
before court considers:
* whether custody threshold passed
* term of custody
* risk of harm to public for life sentence or extended sentence
CC - when can court make hospital order?
only when satisfied on 2 medical reports that offender has disorder that allows for hosp order
CC - who can make representations during defence mitigation?
- offender
- if offender u18 parent / guardians
- defence counsel
CC - when is sentenced pronounced?
- in simple cases immediately after mitigation (just will retire briefly)
in complex cases can adjourn
CC - does judge have to give reasons for sentence?
yes, unless sentence mandatory or fixed by law.
CC - what should reasons for sentence include?
MUST explain in non-tech terms reasons for deciding on sentence
MUST explain effect of sentence and consequences of non-comploance
MUST explain reasons for not giving compensation order
* state degree of credit
CC - what will court consider when defer sentence?
offenders conduct after conviction or
change in offender circs
CC - how long can a sentence be deferred?
max 6 months
CC - what does court need to be satisfied of when deferring sentence?
offenders consent and that it is in ints of justice
CC - what sentence can be passed after deferment?
any sentence which deferring court could have passed
CC - when can court not defer sentence?
when there is a requirement to make a referral order on young offender
MC - when can mags adjourn prior to sentence?
to enable enquiries or determine how to deal with case
MC - how long can mags adjourn prior to sentence
not more than 4 weeks at a time (bail)
not more than 3 weeks at a time (custody)
MC - who presents facts in mags sentencing?
- pros summarise case if not heard by tribunal
- pros gives cases to be taken into consideration
- pros gives relevant info to sentence
- offender gives financial circs
- offender myst be given opp to make reps and introduce evidence
newton hearin gprocedure in MC?
same as in CC
MC - how is sentence decided in mags?
- by a majority
- if equal division - court should adjourn for matter to be reconsidered at hearing
MC - duty to give reasons upon sentencing?
must (unless offender &public not present) explain reasons for sentence
explain effect of sentence
explain consequences of failing to comply with sentence
explain sentencing guidelines
explain power that court has to vary/review sentence
what is the maximum sentence MC can pass on EW offence?
6 months prison / fine of any amount
what is the minimum sentence of detention mags can give?
5 days
what is max sentence for mags when more than one offence?
2 or more EW offence - 12 months
max mags sentence for summary criminal damage?
3 months prison / level 4 fine
what compensation order can mc impose?
unlimited where offender 18 or over
who can detention in young offenders be imposed on?
offenders aged 18-20 - detention periods are same for imprisonment
when does committal for sentence s.14 apply?
mags powers inadequate for EW offence
when does committal for sentence s.18 apply?
where accused has indicated G plea to EW offence and is sent for trial for a related (same facts/series of offences) offence MAY commit
