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Criminal lit > 23: Non-Custodial Sentence > Flashcards

23: Non-Custodial Sentence Flashcards

1
Q

What is NOT a community sent3ence?

A

a discharge

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2
Q

ABSOLUTE DISCHARGE = MAY grant to

A

any offender, whatever offence.

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3
Q

Conditional discharge = MAY grant to

A

any offender, whatever offence

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4
Q

Offender discharged on condition not to commit further offence during specified period (up to

A

3 years).

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5
Q

Offender who commits further offence under conditional discharge can be:

A

re-sentenced for original offence and later offence.

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6
Q

What is the sole condition for conditional discharge?

A

offender commit no further offence. NO OTHER CONDITION CAN BE INSERTED.

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7
Q

Max period for conditional discharge =

A

3 years

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8
Q

Breach conditional discharge = conviction of D of further offence. Court dealing with breach MAY

A

sentence D for for original offence it could have previously, but CC dealing with D conditionally discharged by Mags is limited to Mags powers.

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9
Q

Breach conditional discharge =

A Mags’ court MAY deal with breach conditional discharge imposed by different mags, but only:

A

with consent original mags.

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10
Q

BREACH OF CONDITIONAL DISCHARGE

Consequence of sentencing for original offence:

A

Sentencing for original offence terminates conditional discharge, but order for compensation/costs remains valid.

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11
Q

dOES the compensation/costs order remain valud if D is sentenced for original offence terminating the conditional discharge:?

A

yes

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12
Q

A discharge cannot be combined with

A

punitive measure

A confiscation order can be made on D who was discharged. Where D under 18 + conditionally discharged by Mags in indictment offence, and D now attained 18, courts can deal with him as if just convicted.

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13
Q

Where:

  1. Person received 2 or more youth cautions is convicted offence committed within 2 years of last caution; or
  2. Person received youth conditional caution followed by youth caution convicted within 2 years youth caution.

The court CANNOT

A

deal with offence by conditional discharge UNLESS exceptional circumstances with offence.

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14
Q

When cannot the court deal with offence by conditional discharge?

A

Where:

  1. Person received 2 or more youth cautions is convicted offence committed within 2 years of last caution; or
  2. Person received youth conditional caution followed by youth caution convicted within 2 years youth caution.
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15
Q

FINES AND SURCHARGE

Fines in CC = can impose fine on

A

D convicted on indictment.

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16
Q

What sentences cannot be combined with a fine?

A

Some sentences cannot be combined with fine, e.g. hospital order nor discharge when sentencing for single offence.

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17
Q

CC may impose fine or forfeit recognisance, CC may order:

A
  1. Allow time for payment
  2. Instalments
  3. In recognisance, discharging the recognisance/reducing it.
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18
Q

Duty of court to fix term in default = Where CC imposes fine/forfeits recognizance, court MUST

A

fix term of imprisonment or detention to be served if defaults (unless under 18)

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19
Q

Exception to the MANDATORY rule that court must fix term of imprisonment or detention in default of fine?

A

under 18

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20
Q

What happens if there is a failure for the court to fix a term in lieu of fine?

A

Failure to fix term does NOT invalidate fine. Term should relate to whole sum, NOT instalment.

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21
Q

Fines in Mags = Any amount fine. When set fine, may only fix term of imprisonment in default if either:

A
  1. offence punishable with imprisonment and appears D has sufficient means to pay immediately; or
  2. D unlikely remain long enough at address, so enforcement of fine likely impossible
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22
Q

Fines in Mags

Where someone convicted, Mags/CC MAY before sentencing, make

A

make “financial circumstances order”.

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23
Q

Financial circumstances order =

A

requires individual to give to court a statement of assets + financial circs. If D fails = liable on summary conviction to fine not exceeding level 3. Where D lies = fine not exceeding level 4.

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24
Q

DETERMINING FINE

Fine should reflect

what attribute?

A

seriousness of offence

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25
Q

DETERMINING FINE

Mitigation should preclude

A

preclude imposition of max fine.

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26
Q

What is wrong when imposign a fine?

A

. Imposition of fine “quite beyond” means of D is wrong.

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27
Q

What happens where D lacks means proportionate to pay the fine?

A

Where D lacks means proportionate, it is contrary to impose custodial sentence. Offence MUST have merited sentence immediate imprisonment. Where D = rich, contrary to impose custodial sentence instead. But fine can increase. Level of fine should be adjusted for D ability to pay.

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28
Q

When determining the fine, can the court assume someone other than offender will pay?

A

. Court should not assume someone other than offender will pay. Instalments require payment within reasonable time = norm 12 months but not max.

No restriction combining fines with imprisonment.

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29
Q

A community sentence includes:

A

community order or youth rehabilitation order.

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30
Q

Communithy order

REQUIREMENTS:

A

Imposed on offender OVER 18.

REQUIREMENT: cannot pass community sentence, unless offence was serious enough to warrant sentence.

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31
Q

When considering community sentence, court MUST take into account

A

info of offence + offender.

32
Q

fOR a commmunity sentence, must the court obtain a pre-sentence report?

A

. Norm MUST obtain pre-sentence report, but not where “unnecessary”.

33
Q

Court may make order where D over 18:

A
  1. unpaid work
  2. rehabilitation activity
  3. programme requirement
  4. prohibited activity requirement
  5. curfew requirement
  6. exclusion
  7. resident
  8. foreign travel prohibition
  9. mental health treatment
  10. drug rehabilitation
  11. alcohol treatment
  12. alcohol abstinence and monitoring
  13. electronic monitoring requirement

Where D is UNDER 25 = attendance centre requrirement

34
Q

What is the min / max hours for

Community service

unpaid work?

A

Min 40 hrs, Max 300.

Norm completed within 12 months

35
Q

Where community order 2 or more offences, same occasion, not exceed how many hours?

Community service

unpaid work?

A

300 hoours

36
Q

Community service

unpaid work?

  1. Court MUST if necessary:
A
  1. Hear from appropriate officer that D is suitable; and
  2. Local arrangements exist
37
Q

Community sentence

Unpaid work:

FAILURE TO DO IT?

A
  1. Failure = breach, probation service MAY apply to court to:

Initiate breach; or

Extend 12 month period.

38
Q

Community sentence

  1. Rehabilitation activity

REQUIREMENTS:

A
  1. D must comply with instruction of responsible officer/attend appointment+activities
39
Q

Community sentence

Rehabilitation activity

Court does NOT

A
  1. prescribe activities, but MUST specify max days.
40
Q

Community sentence

pROGRAMME REQUIREMENT

D must participate in WHAT?

A

accredited programme at specified place +certain no days.

41
Q

Community sentence

  1. Prohibited activity requirement

Before inserting this, court MUST:

A
  1. Consult officer of local probation board/provider.
42
Q

Community sentence

  1. Curfew requirement

Min hours

Max hours

A
  1. Min 2 hrs,
  2. Max 16 hrs
43
Q

Community sentence

Curfew requirement

Max lenth for curfew requireNextment

A
  1. MUST not specify periods outside 12 months
  2. D remain at specified place for certain periods time
44
Q

Community sentence

Curfew requirement

  1. Before inserting curfew requirement, MUST:
A
  1. Obtain + consider inform of place +attitude of D
  2. Must norm also impose electronic monitoring requirement unless inappropriate.
45
Q

Community service

  1. Exclusion requirement

CANNOT last longer than

A
  1. Prohibits D from place
  2. CANNOT last longer than 2 years
46
Q

Community service

Exclusion requirement

Must norm have what?

A
  1. impose electronic monitoring requirement unless inappropriate.
47
Q

Community service

  1. Residence requirement

Offender resides at place specified

Before making requirement, must conside

A
  1. home surroundings. May not specify residence at hostel/institution except on recommendation of local probation board/providr.
48
Q

Community sentence

  1. Mental health treatment requirement
    1. Can be:
A
  1. Resident patient in hospital/care home
  2. Treatment as non-resident patient
  3. Treatment under direction of registered medical practitioner/psychologist
49
Q

Community sentence

Mental health treatment requirement

  1. The court MUST be satisfied that:
A
  1. Mental condition requires it; and
  2. D may be susceptible to treatment, but
  3. Not to warrant making hospital order or guardianship order
  4. Arrangements have been made/could be made, and D expressed willingness to comply.
50
Q

Community sentence

  1. Drug rehabilitation requirement

D must submit to person with

A

qualifications/experience and provide samples

51
Q

Community sentence

Drug rehabilitation requirement

  1. Before imposing, court MUST be satisfied:
A
  1. Offender is dependent/ has propensity to misuse any controlled drug; and
  2. Dependency/propensity is susceptible to treatment
  3. Arranegements have been made/can be made; and
  4. Insertion of drug rehabilitation requirement has been recommended to court by local probation board/provider
  5. Offender must express willingness to comply
52
Q

Community sentence

Drug rehabilitation requirement

What is the minimum period?

A

No minimum period

53
Q

Community sentence

Drug rehabilitation requirement

Where can it take place?

A
  1. Treatment as resident or non-resident
54
Q

Community sentence

  1. Alcohol treatment requirement

D MUST

A
  1. submit to treatment/ or under direction to reduction/elimination of D’s dependence.
55
Q

Community sentence

Alcohol treatment requirement

  1. Before imposing, court MUST be satisfied:
A
  1. D is dependent on alcohol; and
  2. Dependence makes him susceptible to treatment;
  3. Arrangements made/can be made
  4. Offender MUST express willingness to comply
56
Q

Community sentence

Alcohol treatment requirement

What is the minimum period

A

There is no minimum

57
Q

Community sentence

When can an attendance centre requrirments be imposed?

A
  1. UNDER 25 years
  2. D must attend attendance centre for no. hours
  3. Court MUST be satisfied:
    1. Attendance centre is local and reasonable accessible
58
Q

Community sentence

  1. Court MUST be satisfied for attendance centre requirement
A

Attendance centre is local and reasonable accessible

59
Q

Community sentence

Attendance centre requirement:

Min

Max

hours

A
  1. Min 12,
  2. max 36
60
Q

Community sentence

Attendance centre requirement:

How many times a day must D attend a attendance center requirement?

A
  1. Not more than once a day, or more than 3 hours on any occasion.
61
Q

Community sentence requirement

  1. Electronic monitoring requirement.
  2. Where court makes:
    1. Curfew requirement; or
    2. Exclusion requirement

It MUST

A

impose electronic monitoring requirement, unless inappropriate, and MAY do so with other requirement.

62
Q

When must the court impose electronic monitoring requirement?

A
  1. Curfew requirement; or
  2. Exclusion requirement
63
Q

Community sentence

  1. Court MUST ensure electronic monitoring arrangements available in local area + can be made

Who can order it?

Does a duration have to be imposed?

A
  1. It can be ordered as a free-standing requirement of community order.
  2. Court must specify duration.
64
Q

ENFORCEMENT COMMUNITY ORDER =

Is a conviction of further offence a breach of a community order?

A

NOT breach of community order.

65
Q

ENFORCEMENT COMMUNITY ORDER =

Warning + Enforcement = D failed without reasonable excuse to comply, officer MUST give warning:

A
  1. Describing circumstances of failure
  2. That failure = unacceptable
  3. Informing D if fail again within 12 month, he will be brought back to court.

Need not give warning = if previously made warning

66
Q

ENFORCEMENT COMMUNITY ORDER =

What happens if after the officer gives a warning, the D continues to breach?

A

If continue breach = reasonable officer MUST refer matter to enforcement officer. EO then MUST consider matter + if appropriate cause info to be laid.

67
Q

Breach community order =

A

CC may in CO make direction that breach = dealt with by Mags. If no direct, breach dealt with by CC.

68
Q

ENFORCEMENT OF COMMUNITY ORDER

Mags = Sentenced on basis of age when the original order made. Any breach should be:

A
  1. Admitted; or
  2. Formally proved to crim standard; and
  3. Pros put forward original offence + facts of breach
70
Q

ENFORCEMENT OF COMMUNITY ORDER

Mags =

When D failed without reasonable excuse to comply, court MUST deal with him by:

A
  1. Impose more onerous CO terms by amending it
    1. Extending duration up to 6 months, can only extend once
  2. D pay fine not exceeding £2,500
  3. Where CO made in Mags, deal with him as if just convicted
  4. Where
    1. CO made in Mags
    2. Original offence not punishable by imprisonment
    3. D 18 or over; and
    4. D wilfully + persistently failed to comply

Can impose imprisonment. OR where 18 – 21 years, detention in Youth offender institution not exceeding 6 month.

71
Q

ENFORCEMENT OF COMMUNITY ORDER

Mags =

Where do the mags have no power?

A

O POWER – to take “no action” on breach. Mags MUST tale account extend D complied with CO. If CO made by CC, Mags MAY commit D in custody or release on bail to appear before CC.

72
Q

ENFORCEMENT OF COMMUNITY ORDER

Crown Court =

If D without reasonable excuse fails to comply, court MUST:

A
  1. Impose more onerous CO terms by amending it
    1. Extending duration up to 6 months, can only extend once
  2. D pay fine not exceeding £2,500
  3. Where CO made in Mags, deal with him as if just convicted
  4. Where –
    1. Offence not punishable with imprisonment;
    2. D 18 or over; and
    3. D wilfully + persistently failed to comply

can impose imprisonment. OR where 18 – 21 years old, detention in young offender institution not exceeding 6 months.

73
Q

ENFORCEMENT OF COMMUNITY ORDER

Crown Court =

Where does the Crown Court have no power?

A

NO POWER – to take “no action” on breach. CC MUST tale account extend D complied with CO. Where CC proceeds under (3) or (4), it MUST revoke CO.

74
Q

ENFORCEMENT OF COMMUNITY ORDER

Crown Court =

Time served on remand = is it deducted from custodial sentence?

A

CC proceeds under (3) or (4), it MUST revoke CO.

Time served on remand = deducted automatically from custodial. Judge NO POWER to direct time spent on remand shall not count.

75
Q

REVOCATION OF Community order

On app by D or officer of provider of probation services, having regard to TEST:

A

change of circumstances, it is in interests of justice to revoke order.

76
Q

REVOCATION OF Community order

Where D subject CO and been convicted of further offence

Mags +

Crown Court

A

Mags = If made by Mags, may: revoke CO or revoke and deal with D for original offence

CC = If made by CC, may commit D in custody or release on bail to appear before CC. May revoke it, or revoke and deal with D for original offence.

77
Q

Amendment of Community order:

Can amend CO if:

A
  1. Change in D’s residence
  2. Cancellation/replacement of certain requirements
  3. Change treatment requirement on report of medical practitioner
  4. Drug rehabilitation review to take place without hearing
  5. Amending order by substituting a day later
  6. Extend 12 month period for unpaid work requirement.

Criminal lit (28 decks)

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