22: Sentencing principles Flashcards
Purposes of sentencing:
- Punishment
- Reduction of crime
- Reform and rehabilitation
- Protection of public
- Reparation
The purpose of sentencing does not apply to:
This does NOT apply to D under 18 at date conviction.
ancillary orders, financial penalty
Court MUST consider which 5 purposes of sentencing it seeks to achieve.
Sentence includes:
Every court MUST in sentencing, follow sentencing guidelines unless,
contrary to interests of justice.
The guidelines applies to D’s older than 18.
SENTENCING
Court having regard to young offender must regard:
- Prevent offending C/YP;
- To have regard to welfare of C/YP
SENTENCING
STEP 1: Where no definitive sentencing guidelines, the court should:
- Look at statutory maximum
- Judgments of CA; and
- Definitive sentencing guidelines
Court should NOT take into account draft sentencing guidelines.
Sentencing
must the court take into account draft sentencing guidelines?
Court should NOT take into account draft sentencing guidelines.
SENTENCING
STEP 1:
The court should look at the seriousness =
- Culpability of D;
- Harm caused
Harm and culpability should NOT take account of plea/previous conviction.
SENTENCING
STEP 2: Aggravating + mitigating factors
Once provisional sentence arrived, look at mitigation.
A fine should meet obj of punishment.
Factors increasing seriousness include:
- Offence committed on bail
- Prevalence
- Previous convictions, having regard to nature + relevance and time elapsed.
SENTENCING
STEP 2: Aggravating + mitigating factors
Once provisional sentence arrived, look at mitigation.
A fine should meet obj of punishment.
Factors reducing seriousness include:
- Good character
- Cooperation
- No previous conviction.
SENTENCING
What is
STEP 3:
Consider factors for reduction for assistance to pros
CONSIDER AGGRAVATING AND MITIGATING FACTORS
SENTENCING
What is
STEP 4:
Reduction for guilty plea
SENTENCING
What is
STEP 5:
Court should consider if appropriate to impose life sentence/extended sentence
SENTENCING
What is
STEP 6:
Totality principle – consider if total sentence is just and proportionate
CONSIDER TIME SPENT IN CUSTOD
SENTENCING
What is
STEP 7:
Compensation + ancillary orders
SENTENCING
What is
STEP 8:
Court MUST give reasons + explain effect of sentence.
SENTENCING
SERIOUSNESS OF OFFENCE – In considering seriousness, court MUST consider:
- D’s culpability; and
- Any harm the offence caused
Once provisional sentence arrived at, court takes into account factors making offence more/less serious.
SENTENCING
What is
STEP 1:
ASSESS SERIOUSNESS Consider how serious the offence is, in terms of culpability and harm.
SENTENCING
What is
STEP 2:
SELECT SENTENCING RANGE Select the sentencing range having regard, where applicable, to: the range of appropriate sentences set out in any relevant sentencing guidelines; any relevant guideline judgments; and any relevant legislation, including any maximum and minimum sentence, the powers of the court, and any statutory presumptions relating to sentencing.
REQUIRED REDUCTION IN SENTENCE
The guideline applies only to
What and not others?
The guideline applies only to punitive elements of sentence, NOT ancillary orders.
REQUIRED REDUCTION IN SENTENCE
When MUST the court state a certain fact?
Where court imposes punishment on D less severe than otherwise would have, it MUST state the fact.
Maximum level of reduction in sentence for guilty plea
First stage of proceedings
1/3 reduction
Maximum level of reduction in sentence for guilty plea
Plea of guilty after first stage of proceedings
¼ reduction
Maximum level of reduction in sentence for guilty plea
First day of trial
1/10th reduction
Maximum level of reduction in sentence for guilty plea
During course of trial
decreased further, up to zero
When is the plea normally sought and recorded?
at first stage
Is there a sliding scale between reductions of one third and one quarter.
NO sliding scale
The reduction in sentence only applies to X of sentence (e.g. CS), NOT
only applies to punitive elements of sentence (e.g. CS), NOT rehabilitative sentence, e.g ancillary orders.
Benefits of guilty plea apply regardless of strength of evidence against D.
AGGREVATING FACTORS:
Previous convictions
In considering seriousness, court MUST or MAY treat each previous conviction as an aggravating factor if reasonable to the:
MUST
- Nature of offence
- Time that has elapsed since conviction
Aggravating factors:
The following are aggravating factors:
- Previous conviction
- Offending on bail
- Racial or religious aggravation = MUST state in open court offence so aggravated. This does not apply to:
- Certain aggravated assaults
- Terrorist connection
- Aggravation to disability, sexual orientation or transgender identify
Aggravating factors affecting seriousness should always be taken into account when deciding if
offence is “serious enough” to warrant community sentence or “so serious” that neither fine nor community sentence can be justified.
- Exception for reduction for a guilty plea*
1. Where court is satisfied, circumstances reduced D’s ability:
X
Then a reduction should be made even though guilty plea indicated after first hearing.
When should a reduction should be made even though guilty plea indicated after first hearing. ?
- Where court is satisfied, circumstances reduced D’s ability:
- To understand what was alleged; or
- Unreasonable to expect D to indicate guilty plea sooner.
Exception for reduction for a guilty plea
- Where court is satisfied, circumstances reduced D’s ability:
- To understand what was alleged; or
- Unreasonable to expect D to indicate guilty plea sooner.
Then a reduction should be made even though guilty plea indicated after first hearing.
- Where D’s version of events - rejected at Newton hearing
The reduction which would have been available should be halved. Where witnesses are called, it may be ok to further decrease reduction.
- If D convicted of less offence than originally charged + made unequivocal indication of guilty to lesser offence = could should give this reduction
Terrorist connection == when considering seriousness, if it appears offence has terrorist connection, court MUST determine:
- If this is the case; and
- If so, it MUST treat it as aggravating; and
- MUST state in open court it is
Aggravation related to Disability, SO and Trans = When considering seriousness, if
x
Court MUST hold it is an aggregating factor
When considering seriousness, if
- At the time, or immediately before, offender demonstrated towards victim hostility based on
- Sexual orientation
- Disability
- Transgender
Or
- The offence was motivated by this.
If so, court MUST = aggravating factor and MUST state in open court.
Transgender = includes
undergoing, proposing to undergo, having undergone gender reassignment.
Aggravating factors affecting seriousness should always be taken into account when deciding if
offence is “serious enough” to warrant community sentence or “so serious” that neither fine nor community sentence can be justified
Pre-sentence reports = Court should obtain pre-sentence report
WHEN?
BEFORE making decision to impose custodial or community sentence.
Court has discretion to dispense WITH bpre-sentence report where:
UNNECESSARY
Is it mandatory to have a pre-sentence report?
Court has discretion to dispense where UNNECESSARY. But where D under 18, it is MANDATORY!.
Will a sentence be invalidated if there is no pre-sentence report?
No sentence = invalidated from failure, but on appeal, appellate court MUST obtain + consider one.
MITIGATION
Even if offence was so serious that community sentence not normally justified, court may take personal mit into account + pass community sentence. Appropriate to suspend custodial sentence if:
- Realistic prospect of rehabilitation
- Strong personal mitigation; and
- Immediate custody result in significant harmful impact on others
PREVALENCE
Seriousness should be judged on
harm and culpability.
PREVALENCE
Seriousness should be judged on harm and culpability. In exceptional circs, court may hold local prevalence influence sentencing levels. Essential sentences have:
- Supporting evidence from external source of prevalence
- Compelling need to treat offence more seriously.
If judge can treat prevalence as aggravating factor, judge MUST be satisfied level of harm significantly higher than elsewhere.
Victim Personal statement = This ensures court considers personal impact of offence.
WHat must/may it include
. It is NOT an opp for V to discuss type/level sentence. V MUST have info making clear they MAY make statement, but no oblig. An absence of victim personal statement DOES NOT indicate absence of harm.
What is the totality principle?
TOTALITY PRINCIPLE
- All courts when sentence for more than 1 offence, should pass total sentence, which is just and proportionate.
- Necessary to address offending behaviour
Mentally disordered offenders – Where D is or appears to be mentally disordered, court MUST
obtain and consider a medical report before passing custodial sentence, but not where UNNECESSARY. Ordering medical report does not displace need to order a pre-sentence report.
ARRAIGNMENT AND PLEAS
If D has no genuine choice for pleading guilty = plea is
plea is nullity + conviction will be quashed on appeal.
ARRAIGNMENT AND PLEAS
When will a plea be nullity and conviction quashed on appeal?
If D has no genuine choice for pleading guilty
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
What case
Goodyear
ARRAIGNMENT AND PLEAS
Court should NOT give indication of sentence unless sought. Court can indicate:
- Sentence
- Type of sentence
ARRAIGNMENT AND PLEAS
Judicial indications of sentence = Goodyear.
When indication sought what does the court do?
court MAY refuse to give indication, with or without reasons
ARRAIGNMENT AND PLEAS
Judicial indications of sentence = Goodyear.
If court refuses indication
what happens:
Def can make further request for indication
ARRAIGNMENT AND PLEAS
Judicial indications of sentence = Goodyear.
Once indication given =
what happens:
it is binding, even if D absconds.
Judicial indications of sentence = Goodyear.
After reasonable opportunity, D doesn’t plead guilty, the indication will
cease to have effect. Where appropriate, there must be agreed, written basis of plea, otherwise judge should refuse to give indication.
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
What is the responsibility of the defendant?
RESPONSIBILITY OF DEF = Process for seeking sentence indication started by def. Accused’s advocate should NOT seek indication without written authority signed by client.
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
What is the responsibility of the defendant?
The advocate should ensure client appreciates that:
- He should not plead guilty unless he is
- Any sentence indication reflects situation at time + if guilty plea not tendered in light of indication, that indication ceases effect; and
Court should NEVER be invited to indicate levels of sentence which depends on possible different pleas
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
Court should NEVER be invited to
indicate levels of sentence which depends on possible different pleas
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
RESPONS OF PROS = At request for indication, pros obliged to
react rather than initate. Pros should remind court that indication should not be given until plea agreed, or judge concluded he doesn’t need Newton hearing.
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
Before indication given, pros should:
- Draw judge’s attention to min/mandatory sentencing requirements, and definitive sentencing guidelines; and
- Remind judge entitlement of A-G to refer sentencing decision as unduly lenient.
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
When is a sentence indication sought?
Norm at
plea + case management hearing following a written app
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
A hearing involving indication should take place in:
open court with full recording of proceedings, both sides represented in presence accused.
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
Court unable to give indication where:
Court likely unable give indication in complicated/difficult cases unless issues resolved
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
How many days must be given when seeking indication for sentence from court?
No less than 7 days’ notice of intention to seek indication should be given in writing to pros and court.
ARRAIGNMENT AND PLEAS
Judicial indications of sentence =
What if an app is made without notice?
= inevitable adjournment.
Goodyear guidance
- Indication confined to max sentence if plea of guilty tendered at stage when indication sought (not max following conviction by jury)
- Judge should not give indication unless sought by D.
- Judge can refuse to give indication
- Once indication given = it is binding
- If after reasonable opportunity to consider indication, D doesn’t plead guilty – indication ceases
- D should not seek indication without written authority, singed by client
- Advocate must make client aware:
- He should not plead guilty unless he is
- Any indication remains subject to A-G to refer an unduly lenient sentence to CA
- Any indication given by judge reflects situation at time,
- Indication shouldn’t be sought when uncertainty about pros + def about acceptable plea
- Any sentence indication should be sought at PTPH.
TRIAL ON INDICTMENT
Where D pleads guilty at first stage of sentences, pros counsel does what?!
= pros counsel summarises facts, this is not mandatory.
TRIAL ON INDICTMENT
Duty of pros – MUST adopt neutral attitude at sentencing stage.
AND MUST:Under duty to assist, MUST remind judge:
- Statutory provisions guiding him; and
- Relevant guidelines
TRIAL ON INDICTMENT
Pros MUST prepare:
plea and sentence document” identifying aggravating + mitigation factors.
TRIAL ON INDICTMENT
Council’s duty to assist court = Counsel MUST make himself aware of:
- Any legal limitations on court’s sentencing powers; and
- Relevant guidelines.
Positive obligation on Def and Pros to ensure no order is made that court cannot make.
What is a
NEWTON HEARING ?
where dispute of facts of offence. Def advance written factual basis of plea NOT accepted by pros or court.
Newton Hearing = difference on facts between pro and def. Court MAY give directions for determining facts which sentence must be passed.
NEWTON HEARING ?
The court MAY:
- Obtain answer from jury
- Judge court hear evidence + conclude
- Judge could hear no evidence but listen to counsel’s submissions
- If he does this, where substantial conflict, D’s version MUST be accepted so far as poss.
NEWTON HEARING GUIDANCE
Where D pleads guilty on basis pros don’t accept:
what happens?
- Responsibility for alerting pros of dispute rests with def
- Pros may agree D’s version, if so, agreement should be in writing and signed by advocates
- Agreement should be available to judge before pros opening + if poss invited to approve acceptance
- If agreed basis of plea not signed or legible, judge CAN ignore it
- If pros reject D’s version, dispute should be identified in doc.
- Whether or not basis of plea agreed, judge is NOT bound + entitled to insist evidence called. May order Newton hearing
- Pros + def should call evidence.
NEWTON HEARING GUIDANCE
Must a judge hear evidence?
- Judge entitled to decline to hear evidence of disputed fact if D’s case is absurd or obviously untenable, but he should explain why.
NEWTON HEARING GUIDANCE
what happens if D’s version of facts are accepted?
credit due to him for guilty plea shouldn’t be reduced. Otherwise judge may reduce discount. If entitlement to credit for guilty plea is wholly dissipated by Newton hearing – judge
NEWTON HEARING
Duty of D’s rep = Notfy pros that plea of guilty put forward on D’s version. This includes:
- Disputes of relevant facts affecting sentence
- Court should be informed, at latest during mitigation that def wish to resolve dispute of Newton hearing
NEWTON HEARING
If entitlement to credit for guilty plea is wholly dissipated by Newton hearing – judge should
do what
explain reasons.
Newton hearing
Can the court hold a Newton hearing even where the hearing has taken place already in the Mags?
CC has power to hold Newton hearing even where hearing has taken place already in Mags which committed D for sentence.
CC has power to hold Newton hearing even where hearing has taken place already in Mags which committed D for sentence. But TEST:
ought to be good reason.
Newton hearing
Where D pleads guilty on basis, he should set this basis out in
written form.
Newton hearing
Where D pleads guilty on basis, he should set this basis out in written form, and if it is not in writing, what happens?
If not in writing, judge is entitled to ignore it.
WHEN NEWTON HEARING UNNECESSARY:
- Insignificant disputes
- D version is manifestly absurd
Newton only applies where dispute between pros + def is “substantial”. If judge’s sentence the same whichever version he accepts – there is NO OBLIGATION to hear evidence. A def story so implausible, it is unnecessary.
WHAT IS THE burden of proof for Newton?
pros satisfy judge beyond reasonable doubt.
Once judge decides -) Newton hearing take place, hearing is adversarial. Parties call evidence + cross examine.
ROLE OF PROS IN NEWTON –
Where basis facts not in dispute, pros not obliged to call evidence + judge entitled to draw inferences. Pros should not leave questioning to judge.
ROLE OF DEF IN NEWTON
Def cannot be forced to call evidence/participate
ROLE OF COURT IN NEWTON
Judge should wait until D examined by own counsel + cross examination before questioning him.
Newton hearing
DISPUTE OF FACTS FOLLOWING VERDICT OF GUILTY –
what should the jury not do?
Jury shouldn’t supplement verdict of guilty by stating factual basis, exception – manslaughter.
Newton hearing
When must the prosecution adduce evidence of D’s character/antecedents?
After pros summary, or immediately after jury’s verdict of guilty, the pros MUST adduce evidence of D’s character/antecedents.
D should only be sentenced for convicted crimes – exception:
- Less serious secondary offence not charged but commission is implicit in primary offence
- D expressly asks for other offence to be considered
- If pros is that offence on indictment are merely samples of course of conduct + def accepts.
Sample offences =
what is it
= pros may invite judge to treat offences on indictment as samples of continuing course of conduct. This applies norm where D committed large no of similar offences over period.
What are the reports on the Defendant?
and when does the court consider any reports?
After pros summary of facts + antecedents evidence, the court considers ANY REPORTS prepared, including pre-sentence, medical + suitability for community sentence report.
What are pre-sentence reports
Assists court determining to deal with D. Report can be made in writing/orally in open court.
Preparation of report
Pre-sentence reports on
Adults are compiled by
probation officers.
Preparation of report
Pre-sentence reports on
Children under 13
local authority social workers.
Preparation of report
Pre-sentence reports on
13 to 16 inclusive, responsibility is shared between
probation service and social services,
When does there not need to be a pre-sentence report?
When determining whether custodial sentence should be imposed, where court thinks UNNECESSARY and D is over 18 = no report. NOT OBLIGATORY
When MUST there be a pre-sentence report?
If Child/young person = OBLIGATORY unless UNNECESSARY and considered any existing pre-sentence report.
What conditions need to be satisfied to make a medical/psychiatric report?
Medical/Psychiatric Report – court MUST satisfied on written/oral evidence of 2 medical practitioners that D suffers from mental disorder to warrant making order.
What does s Report from at least one medical practitioner actually do?
a custodial sentence is passed on a mentally disordered offender.
Where medical report tendered in evidence =
what must be done?
copy MUST be given to D’s “authorised person”.
Where medical report tendered in evidence =
what happens if D is unrepresented?
= gist’s of report should be disclosed but not entitled to copy.
Where medical report tendered in evidence, what is the case in children/young person case?
C/YP = substance report MUST be disposed to parent/guardian. Medical practitioner may be required for cross-examination
At what stage is there defence mitigation?
Mitigation of sentence = Final stage = defence mitigation.
MITIGATION OF SENTENCE
Before passing sentence, court MUST give D an:
- Opp to make representations; and
- Introduce evidence relevant to sentence; and
- Where D under 18, the court MAY give his parents/guardian/other such opp as well.
PRONOUNCING SENTENCE= After defence mitigation, judge =sentences. Court MUST explain:
in non-technical terms its reasons.
Court MUST explain effect of sentence+ consequences of non-compliance. Court no longer required to identify allowed has been made to sentence for time in custody.
DEFERRING SENTENCE = Purpose – enable court, to have regard to:
- Conduct after conviction;
- Change in circumstances
Court MUST fix date to which sentence is deferred, Max = 6 months. Deferment requires D’s consent and it must be in the interests of justice.
SENTENCING IN MAGS COURT
Mags MAY adjourn after convicting and before sentencing but not more than
4 weeks, unless court remands D in custody.
SENTENCING IN MAGS COURT
Mags MAY adjourn after convicting and before sentencing but not more than
X
when remanded
When remanded = 3 weeks.
SENTENCING IN MAGS COURT
Maximum period for adjournment after conviction
For bail:
Four weeks
SENTENCING IN MAGS COURT
Maximum period for adjournment after conviction
For custody:
3 weeks
Do courts need to sentence at the end of adjournment?
Court doesn’t have to sentence at end of adjournment, but MAY adjourn again. MAY adjourn for pre-sentence report. Where D granted bail post-conviction adjournment, MAY be condition D must be available for enabling inquiries provided it is NECESSARY.
Pros summarises pros case if sentence not heard evidence. Pros draws court’s attention to victims personal statement. D must provide details of financial circums and court MUST give D opp to make reps and introduce evidence.
What is a newton hearing?
Where different version of facts is significant, court has a choice for hearing.
Adjudication on + pouncing sentence – decision of sentence is by
MAJORITY. If equal division = adjourn.
When passing sentence, court MUST explain reasons unless:
- D is absent or
- D’s ill health/disorderly conduct makes it impractical.
With sentencing, the court must explain:
- effect of sentence
- consequence of failing to comply with requirements
- power to vary
- consider exercising power for costs
- MUST IDENTIFY: definitive sentencing guidelines and explain how it is discharged
COMPENSATION ORDER
max order:
Where D 18 = no limit on comp mags order
DETENTION IN YOUNG OFFENDERS = Mags MAY impose sentence in young offenders institution
at what ages?
Mags MAY impose sentence in young offenders institution on D ages 18-20.
Where D under 18(at date conviction), YC MAY impose a DTO – Max 24 months (12 custody, 12 supervision).
Aggregate prison terms
Magistrates’ court MAY impose on 1 occasion for several offences@
which is six months, unless it is sentencing for two or more either-way offences, 12 months
Aggregate prison terms
If D breaches 6 month SS and convicted of 2 either way offences, Mags could impose
5 months on each breach to run consecutively, and activate SS also consecutively – making aggregate 18 months sentence!
Committal under s3 PCC(S)(A) 2000 –
what is the position?
Where Mags convicted** D for **EW offence + due to seriousness of offence, Mags sentencing powers are inadequate. The Mags MAY commit D to CC for sentence. CC can pass sentence as if convicted on indictment, so limitation on Mags powers don’t apply.
Committal under s4(PCC(S)A) 2000 =
position
D sent for trial, where D indicated guilty plea to EW offence + sent for trial for one or more related offences, the Mags MAY commit D to CC for sentence of EW offence he has pleaded guilty.
When is an offence related?
if charges could be joined in same indictment if both charges tried in CC. The 2 charges MUST be found on same facts OR be MUST be series of offences of same/similar character. Where Mags commit D to sentence, the CC can exceed Mags power if:
- Mags stated their power is inadequate; or
- D convicted by CC
Committal under s4(PCC(S)A) 2000 is for what and s6 is for what?
D4 is for either way offences sent for TRIAL. IT IS FOR TRIAL. S6 is for sentencing. This is only for RELATED offences. S6 is for UNRELATED offences.
Committal under s6 PCC(S)(A) 2000
simple position
Power to commit for sentence for related or unrelated, EW or summary offences for SENTENCE not for trial. Under s6, Mags may commit D to CC summary offences which could not otherwise be committed for sentence. E.G. the CC sentences for everything. S6 is for convenience.
Simple position for
s3
s4
s6
S3 = primary power of committal from Mags to CC
S4 = can send related matters from Mags to CC
S6 = can send unrelated matters from Mags to CC
