23: Non-Custodial Sentence Flashcards
What is NOT a community sent3ence?
a discharge
ABSOLUTE DISCHARGE = MAY grant to
any offender, whatever offence.
Conditional discharge = MAY grant to
any offender, whatever offence
Offender discharged on condition not to commit further offence during specified period (up to
3 years).
Offender who commits further offence under conditional discharge can be:
re-sentenced for original offence and later offence.
What is the sole condition for conditional discharge?
offender commit no further offence. NO OTHER CONDITION CAN BE INSERTED.
Max period for conditional discharge =
3 years
Breach conditional discharge = conviction of D of further offence. Court dealing with breach MAY
sentence D for for original offence it could have previously, but CC dealing with D conditionally discharged by Mags is limited to Mags powers.
Breach conditional discharge =
A Mags’ court MAY deal with breach conditional discharge imposed by different mags, but only:
with consent original mags.
BREACH OF CONDITIONAL DISCHARGE
Consequence of sentencing for original offence:
Sentencing for original offence terminates conditional discharge, but order for compensation/costs remains valid.
dOES the compensation/costs order remain valud if D is sentenced for original offence terminating the conditional discharge:?
yes
A discharge cannot be combined with
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.
Where:
- Person received 2 or more youth cautions is convicted offence committed within 2 years of last caution; or
- Person received youth conditional caution followed by youth caution convicted within 2 years youth caution.
The court CANNOT
deal with offence by conditional discharge UNLESS exceptional circumstances with offence.
When cannot the court deal with offence by conditional discharge?
Where:
- Person received 2 or more youth cautions is convicted offence committed within 2 years of last caution; or
- Person received youth conditional caution followed by youth caution convicted within 2 years youth caution.
FINES AND SURCHARGE
Fines in CC = can impose fine on
D convicted on indictment.
What sentences cannot be combined with a fine?
Some sentences cannot be combined with fine, e.g. hospital order nor discharge when sentencing for single offence.
CC may impose fine or forfeit recognisance, CC may order:
- Allow time for payment
- Instalments
- In recognisance, discharging the recognisance/reducing it.
Duty of court to fix term in default = Where CC imposes fine/forfeits recognizance, court MUST
fix term of imprisonment or detention to be served if defaults (unless under 18)
Exception to the MANDATORY rule that court must fix term of imprisonment or detention in default of fine?
under 18
What happens if there is a failure for the court to fix a term in lieu of fine?
Failure to fix term does NOT invalidate fine. Term should relate to whole sum, NOT instalment.
Fines in Mags = Any amount fine. When set fine, may only fix term of imprisonment in default if either:
- offence punishable with imprisonment and appears D has sufficient means to pay immediately; or
- D unlikely remain long enough at address, so enforcement of fine likely impossible
Fines in Mags
Where someone convicted, Mags/CC MAY before sentencing, make
make “financial circumstances order”.
Financial circumstances order =
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.
DETERMINING FINE
Fine should reflect
what attribute?
seriousness of offence
DETERMINING FINE
Mitigation should preclude
preclude imposition of max fine.
What is wrong when imposign a fine?
. Imposition of fine “quite beyond” means of D is wrong.
What happens where D lacks means proportionate to pay the fine?
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.
When determining the fine, can the court assume someone other than offender will pay?
. 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.
A community sentence includes:
community order or youth rehabilitation order.
Communithy order
REQUIREMENTS:
Imposed on offender OVER 18.
REQUIREMENT: cannot pass community sentence, unless offence was serious enough to warrant sentence.
When considering community sentence, court MUST take into account
info of offence + offender.
fOR a commmunity sentence, must the court obtain a pre-sentence report?
. Norm MUST obtain pre-sentence report, but not where “unnecessary”.
Court may make order where D over 18:
- unpaid work
- rehabilitation activity
- programme requirement
- prohibited activity requirement
- curfew requirement
- exclusion
- resident
- foreign travel prohibition
- mental health treatment
- drug rehabilitation
- alcohol treatment
- alcohol abstinence and monitoring
- electronic monitoring requirement
Where D is UNDER 25 = attendance centre requrirement
What is the min / max hours for
Community service
unpaid work?
Min 40 hrs, Max 300.
Norm completed within 12 months
Where community order 2 or more offences, same occasion, not exceed how many hours?
Community service
unpaid work?
300 hoours
Community service
unpaid work?
- Court MUST if necessary:
- Hear from appropriate officer that D is suitable; and
- Local arrangements exist
Community sentence
Unpaid work:
FAILURE TO DO IT?
- Failure = breach, probation service MAY apply to court to:
Initiate breach; or
Extend 12 month period.
Community sentence
- Rehabilitation activity
REQUIREMENTS:
- D must comply with instruction of responsible officer/attend appointment+activities
Community sentence
Rehabilitation activity
Court does NOT
- prescribe activities, but MUST specify max days.
Community sentence
pROGRAMME REQUIREMENT
D must participate in WHAT?
accredited programme at specified place +certain no days.
Community sentence
- Prohibited activity requirement
Before inserting this, court MUST:
- Consult officer of local probation board/provider.
Community sentence
- Curfew requirement
Min hours
Max hours
- Min 2 hrs,
- Max 16 hrs
Community sentence
Curfew requirement
Max lenth for curfew requireNextment
- MUST not specify periods outside 12 months
- D remain at specified place for certain periods time
Community sentence
Curfew requirement
- Before inserting curfew requirement, MUST:
- Obtain + consider inform of place +attitude of D
- Must norm also impose electronic monitoring requirement unless inappropriate.
Community service
- Exclusion requirement
CANNOT last longer than
- Prohibits D from place
- CANNOT last longer than 2 years
Community service
Exclusion requirement
Must norm have what?
- impose electronic monitoring requirement unless inappropriate.
Community service
- Residence requirement
Offender resides at place specified
Before making requirement, must conside
- home surroundings. May not specify residence at hostel/institution except on recommendation of local probation board/providr.
Community sentence
- Mental health treatment requirement
- Can be:
- Resident patient in hospital/care home
- Treatment as non-resident patient
- Treatment under direction of registered medical practitioner/psychologist
Community sentence
Mental health treatment requirement
- The court MUST be satisfied that:
- Mental condition requires it; and
- D may be susceptible to treatment, but
- Not to warrant making hospital order or guardianship order
- Arrangements have been made/could be made, and D expressed willingness to comply.
Community sentence
- Drug rehabilitation requirement
D must submit to person with
qualifications/experience and provide samples
Community sentence
Drug rehabilitation requirement
- Before imposing, court MUST be satisfied:
- Offender is dependent/ has propensity to misuse any controlled drug; and
- Dependency/propensity is susceptible to treatment
- Arranegements have been made/can be made; and
- Insertion of drug rehabilitation requirement has been recommended to court by local probation board/provider
- Offender must express willingness to comply
Community sentence
Drug rehabilitation requirement
What is the minimum period?
No minimum period
Community sentence
Drug rehabilitation requirement
Where can it take place?
- Treatment as resident or non-resident
Community sentence
- Alcohol treatment requirement
D MUST
- submit to treatment/ or under direction to reduction/elimination of D’s dependence.
Community sentence
Alcohol treatment requirement
- Before imposing, court MUST be satisfied:
- D is dependent on alcohol; and
- Dependence makes him susceptible to treatment;
- Arrangements made/can be made
- Offender MUST express willingness to comply
Community sentence
Alcohol treatment requirement
What is the minimum period
There is no minimum
Community sentence
When can an attendance centre requrirments be imposed?
- UNDER 25 years
- D must attend attendance centre for no. hours
- Court MUST be satisfied:
- Attendance centre is local and reasonable accessible
Community sentence
- Court MUST be satisfied for attendance centre requirement
Attendance centre is local and reasonable accessible
Community sentence
Attendance centre requirement:
Min
Max
hours
- Min 12,
- max 36
Community sentence
Attendance centre requirement:
How many times a day must D attend a attendance center requirement?
- Not more than once a day, or more than 3 hours on any occasion.
Community sentence requirement
- Electronic monitoring requirement.
- Where court makes:
- Curfew requirement; or
- Exclusion requirement
It MUST
impose electronic monitoring requirement, unless inappropriate, and MAY do so with other requirement.
When must the court impose electronic monitoring requirement?
- Curfew requirement; or
- Exclusion requirement
Community sentence
- Court MUST ensure electronic monitoring arrangements available in local area + can be made
Who can order it?
Does a duration have to be imposed?
- It can be ordered as a free-standing requirement of community order.
- Court must specify duration.
ENFORCEMENT COMMUNITY ORDER =
Is a conviction of further offence a breach of a community order?
NOT breach of community order.
ENFORCEMENT COMMUNITY ORDER =
Warning + Enforcement = D failed without reasonable excuse to comply, officer MUST give warning:
- Describing circumstances of failure
- That failure = unacceptable
- Informing D if fail again within 12 month, he will be brought back to court.
Need not give warning = if previously made warning
ENFORCEMENT COMMUNITY ORDER =
What happens if after the officer gives a warning, the D continues to breach?
If continue breach = reasonable officer MUST refer matter to enforcement officer. EO then MUST consider matter + if appropriate cause info to be laid.
Breach community order =
CC may in CO make direction that breach = dealt with by Mags. If no direct, breach dealt with by CC.
ENFORCEMENT OF COMMUNITY ORDER
Mags = Sentenced on basis of age when the original order made. Any breach should be:
- Admitted; or
- Formally proved to crim standard; and
- Pros put forward original offence + facts of breach
ENFORCEMENT OF COMMUNITY ORDER
Mags =
When D failed without reasonable excuse to comply, court MUST deal with him by:
- Impose more onerous CO terms by amending it
- Extending duration up to 6 months, can only extend once
- D pay fine not exceeding £2,500
- Where CO made in Mags, deal with him as if just convicted
- Where
- CO made in Mags
- Original offence not punishable by imprisonment
- D 18 or over; and
- D wilfully + persistently failed to comply
Can impose imprisonment. OR where 18 – 21 years, detention in Youth offender institution not exceeding 6 month.
ENFORCEMENT OF COMMUNITY ORDER
Mags =
Where do the mags have no power?
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.
ENFORCEMENT OF COMMUNITY ORDER
Crown Court =
If D without reasonable excuse fails to comply, court MUST:
- Impose more onerous CO terms by amending it
- Extending duration up to 6 months, can only extend once
- D pay fine not exceeding £2,500
- Where CO made in Mags, deal with him as if just convicted
- Where –
- Offence not punishable with imprisonment;
- D 18 or over; and
- D wilfully + persistently failed to comply
can impose imprisonment. OR where 18 – 21 years old, detention in young offender institution not exceeding 6 months.
ENFORCEMENT OF COMMUNITY ORDER
Crown Court =
Where does the Crown Court have no power?
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.
ENFORCEMENT OF COMMUNITY ORDER
Crown Court =
Time served on remand = is it deducted from custodial sentence?
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.
REVOCATION OF Community order
On app by D or officer of provider of probation services, having regard to TEST:
change of circumstances, it is in interests of justice to revoke order.
REVOCATION OF Community order
Where D subject CO and been convicted of further offence
Mags +
Crown Court
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.
Amendment of Community order:
Can amend CO if:
- Change in D’s residence
- Cancellation/replacement of certain requirements
- Change treatment requirement on report of medical practitioner
- Drug rehabilitation review to take place without hearing
- Amending order by substituting a day later
- Extend 12 month period for unpaid work requirement.