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Criminal Litigation > 23 Non-custodial Sentences > Flashcards

23 Non-custodial Sentences Flashcards

1
Q

What does ‘order for absolute discharge’ mean?

A

Discharging an offender absolutely of the offence

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2
Q

When may the court make an order for absolute discharge?

A

If they have the opinion that it is not suitable to inflict punishment having regard to the circumstances

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3
Q

What must the court have regards to before making an order for absolute discharge?

A

Regard to the circumstances

Regards to the nature of the offence

Regards to the character of the offender

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4
Q

Where will you find the provisions for absolute discharge?

A

Sentencing Code (Sentencing Act 2020, s.79)

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5
Q

Where is the power to grant absolute/conditional discharge available?

A

It is available to all courts

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6
Q

Who can absolute/conditional discharge be granted to?

A

All offenders of whatever age

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7
Q

When is absolute discharge not available?

A

In exceptional cases referred to in the Sentencing Act 2020

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8
Q

True or False: An absolute/conditional discharge is a community sentence?

A

False

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9
Q

What can absolute/conditional discharge not be combined with?

A
  1. Punitive measures for the same offence
  2. Custodial sentences
  3. Community order
  4. Fine
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10
Q

True or False: Surcharge is still payable regardless of absolute discharge? Why?

A

False. Where an offence is dealt with by way of an absolute discharge, no surcharge is payable

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11
Q

True or False: Where absolute discharge is granted, it relates to other offences providing it is the same offender?

A

False. Court is free to exercise normal powers of sentence with respect to any other offences.

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12
Q

What does an order for conditional discharge mean?

A

an order discharging an offender for an offence subject to the condition that offender commits no offence during the period specified in the order

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13
Q

Under what circumstances is an order for conditional discharge not available?

A

s.66ZB (6) of the Criminal and disorder Act 1998
= Effect of youth cautions

s. 66F of the Criminal and disorder Act 1998 = youth conditional cautions
s. 103I (4) of the Sexual Offences Act 2003 = breach of sexual harm prevention order and interim sexual harm prevention order
s. 339 (3) = breach of criminal behaviour order
s. 353 (5) = breach of sexual harm prevention order

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14
Q

What may the court take into account before making an order for conditional discharge?

A
  1. circumstances
  2. nature of the offence
  3. character of the offence
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15
Q

When may the court make an order for conditional discharge?

A

court may make an order for conditional discharge if it is of the opinion that is is inexpedient to inflict punishment having regards to the circumstances

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16
Q

What is the period of conditional discharge?

A

The period specified in a conditional discharge

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17
Q

What are the requirements for the period of conditional discharge?

A

must be a period of no more than 3 years beginning with the day on which the order is made

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18
Q

When may court allow a person who consents to do so to give security for the good behaviour of the offender?

A

When making conditional discharge, if court thinks its expedient for purpose of offenders reformation

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19
Q

What is the sole condition?

A

The offender should commit no further offence during the period of the conditional discharge

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20
Q

What other conditions must be in a conditional discharge?

A

No other condition or requirement may be inserted

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21
Q

Who fixes period for conditional discharge?

A

Court

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22
Q

True or False: The period for conditional discharge cannot be less than 4 years? Why?

A

False, must not exceed 3 years

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23
Q

Under what circumstances may a conditional discharge be combined with a punitive measure for same offence?

A

Where permitted by statute

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24
Q

Which discharge can be combined with punitive measure? How?

A

Conditional discharge. Where permitted by statute

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25
Q

True or False: Conditional discharge may be combined with an order for disqualification?

A

True

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26
Q

What can be combined with Conditional discharge?

A

An order for disqualification

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27
Q

What types of disqualification order can be combined with Conditional discharge?

A

any disqualification

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28
Q

Where do you find provisions for breach of conditional discharge?

A

s.81 and sch. 2 The Sentencing Act 2020

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29
Q

How can conditional discharge be breached?

A

Can only be breached by conviction of the offender of a further offence committed during the period of the discharge

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30
Q

True or False: The Sentencing Act 2020 also relates to discharge of Youth offenders?

A

False.

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31
Q

What may a court dealing with breach of conditional discharge they made do?

A

May sentence the offender for the original offence in any manner in which it would have done had the offender been convicted for the offence in court

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32
Q

What happens if Crown Court is dealing with breach of conditional discharge by Magistrates’ Court?

A

They are limited to the lower court’s powers

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33
Q

True or False: One Magistrates’ court cannot deal with the breach of a conditional discharge imposed by another Magistrates’ Court?

A

True

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34
Q

Under what circumstances may one Magistrates’ court deal with the breach of a conditional discharge imposed by another Magistrates’ Court?

A

if given consent by original Magistrates’ court

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35
Q

Under what circumstances may Youth offenders be re-sentenced the original sentence if breach of conditional discharge?

A

Court may re-sentence the offender in any way if he/she is the same age as when convicted

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36
Q

What terminates the conditional discharge?

A

Sentencing for the original offence

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37
Q

When a conditional discharge is terminated what happens to costs/compensation made at the time of discharge?

A

they remain valid

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38
Q

True or False: When a conditional discharge is terminated costs/compensation made at the time of discharge is also terminated?

A

False

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39
Q

When is a Fine available in the Crown Court?

A

Where it is dealing with an offender who is convicted on indictment for an offence -

  1. Instead of
  2. In addition to
    dealing with the offender in any other way which is available to the court
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40
Q

Two scenarios where Fines do not apply?

A
  1. When it is in relation to an offence which a mandatory sentence requirement applies
  2. When offence is subject to an enactment which requires offender to be dealt with in a specific way
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41
Q

Give 3 examples of mandatory sentence requirement?

A
  1. Life sentence for murder
  2. Other mandatory life sentences or
  3. minimum sentence for third domestic burglary offence
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42
Q

What are two things a Fine cannot be combined with?

A
  1. Hospital Order

2. Discharge when sentencing for a single offence

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43
Q

When can a Fine be combined with discharge?

A

more than one offence

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44
Q

When does a Fix Term in Default not apply?

A

In relation to a Fine imposed by the Crown Court on appeal against the decision of Magistrates’ Court

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45
Q

What must the Court make an order fixing a term for?

A
  1. Imprisonment, or

2. Detention

46
Q

What is a ‘Fix Term in Default’ ?

A

A term which the offender is to undergo if any sum which the offender is liable to pay is not paid or recovered

47
Q

True or False: A fix term in default must be fixed in every case?

A

False

48
Q

True or False: Judges have discretion whether or not to fix term in default?

A

False

49
Q

True or False: A fix term in default must be fixed in every case where Crown Court imposes a Fine?

A

True

50
Q

True or False: failure to fix a term invalidates the Fine?

A

False

51
Q

True or False: fix term can relate to instalment? Why?

A

False. Should relate to the whole sum

52
Q

True or False: Where more than one Fine is imposed, consecutive terms may be fixed?

A

True

53
Q

True or False: Magistrates’ Court cannot order a fix term exceeding 12 months?

A

True

54
Q

True or False: Fine can be more than amount specified in provisions

A

False. A fine of a specified amount or not more than a specified amount must not be more than that amount.

55
Q

True or False: A fine of a specified amount or a fine of not more than a specified amount must not be more than that amount.

A

True

56
Q

True or False: If Provisions require a fine of a specified amount or not more than a specified amount, Court may give fine of less than amount?

A

True

57
Q

True or False: If Provisions require a fine of a specified amount or not more than a specified amount, Court cannot give fine of less than amount?

A

False

58
Q

If under enactment Magistrates’ Court has power to sentence offender to imprisonment or detention but not to fine can Mag still impose a fine?

A

Yes unless an Act expressly provides otherwise

59
Q

What must the Court do before imposing a fine on an offender who is an individual?

A

They must first inquire into offender’s financial circumstances

60
Q

True or False: Court must always take into account an offenders financial circumstances?

A

True

61
Q

What must the court take into account before imposing a fine?

A
  1. Financial circumstances of offender
  2. Seriousness of the offence
  3. Circumstances of the case
62
Q

How can Court inquire into offender’s financial circumstances?

A

Court may make a financial circumstances order

63
Q

What is a financial circumstances order?

A

An order requiring relevant individual to give to the court, before the end of a specified period - a statement of the individual’s assets and other financial circumstances as the court may require

64
Q

What must the individual offender give when given a financial circumstances order

A
  1. A statement of their assets

2. Any other financial circumstances as the court may require

65
Q

What happens if offender fails to comply with a financial circumstances order?

A

Liable on summary conviction to a fine not exceeding level 3

66
Q

What happens if offender is reckless/ knowingly fails to disclose material fact?

A

Liable on summary conviction to a fine not exceeding level 4

67
Q

True or False: It is a Court’s discretion to give a fine instead of custodial sentence?

A

False. A fine is an inappropriate penalty where seriousness of offence requires immediate custodial sentence

68
Q

True or False: Fines can be given in any low serious case?

A

False. There are cases which are not so serious to justify a fine

69
Q

When can a maximum fine be given?

A

Imposition of maximum fine should be reserved for most serious instances of offence

70
Q

True or False: Imposition of a fine which is beyond the means of offender is wrong?

A

True

71
Q

True or False: Where offender lacks means to pay the fine, Court may impose custodial sentence instead?

A

False

72
Q

True or False: Where offender is well off and paying the fine proportionate to offence would cause little inconvenience, Court may impose a custodial sentence instead?

A

False

73
Q

What can be done here offender is well off and paying the fine proportionate to offence would cause little inconvenience?

A

It is appropriate to raise the level of the fine to increase the impact on the offender

74
Q

True or False: Court can indicate any fine if the offender is able to afford it? Why?

A

False. There must remain proportion between the offence and the fine

75
Q

True or False: level of fine should be adjusted upwards or downwards depending on offenders ability to pay?

A

True

76
Q

True or False: Court may impose/adjust a fine based on offender’s connections means

A

False. requirement to adjust fine in accordance with the offender entails that the Court does not assume that someone other than offender will pay the fine

77
Q

True or False: In Corporation cases where financial circumstances information is withheld, Court is entitled to assume the Company is able to pay the fine?

A

True

78
Q

What is the general rule in regards to length of payment of fines?

A

Fine should be of an amount that is capable of being paid within 12 months

79
Q

True or False: maximum time to pay any fine imposed by the court is 12 monts?

A

False.

80
Q

Is it possible to combine any fine with any imprisonment/ custodial sentence?

A

No, excludes restrictions imposed by statute on certain custodial sentences

81
Q

What is a community order?

A

An order imposed on an offender aged 18 or over

82
Q

When can the Court make a community order?

A

If it is of the opinion that

  1. the offence
  2. combination of offence(s)

was serious enough to warrant the making of such an order

83
Q

What must the court take into account when considering whether to make a community order?

A

All information that is available about the circumstances of the offence

Aggravating/ Mitigating factors

Pre-sentence reports

84
Q

True or False: The Court is required to make a community order?

A

False. The fact that the court may make an order does not mean they have to

85
Q

True or False: Before making a community order, the Court must obtain a pre-sentence report?

A

False. Only if it considers it necessary to do so

86
Q

True or False: An attendance centre order is available to all offenders? Why?

A

False. Only available to 25+

87
Q

What are the requirements before an electronic compliance monitoring requirement can be ordered?

A

Community order must impose at least one other requirement other than alcohol abstinence or any monitoring requirement

88
Q

What must be done if offender has failed community order without reasonable excuse?

A

Offender will be given a warning

89
Q

What must a warning for failure of community order entail?

A
  1. Must describe the circumstances of failure
  2. Must state the failure is unacceptable
  3. Must inform offender if within next 12 months, further failure = will be brought back before the court
90
Q

True or False: Only one warning is given in failure of community order

A

True. Need not give a warning if warning has already been given

91
Q

What happens if offender further fails their community order?

A

Responsible officer must refer the matter to enforcement officer

92
Q

What happens when a failure of community order is referred to an enforcement officer?

A

Enforcement officer is under a duty to consider the matter and cause information to be laid in respect of failure to comply

93
Q

What happens when there is a breach of a community order?

A

Breaches are dealt with in the Crown Court unless there is a direction in the community order that any breach is to be dealt with in the Magistrates’ Court

94
Q

For the offender to be sentenced, what must first happen to certify that they did breach?

A

Any breach should either be admitted by the offender or formally proved to the criminal standard of proof

95
Q

Who is responsible to prove that a breach of community order happened?

A

Prosecution

96
Q

What must the Prosecution do if a breach of community order happens?

A

Prosecution should be in position to put before the court the facts of the original offence as well as facts of the breach

97
Q

When can the Court impose a custodial sentence in respect to a breach of community order?

A

Where the offender persistently and wilfully breaches the requirements of the order

98
Q

True or False: The court may choose not to act if the offender for breaching a community order?

A

False. The Court must act. There is no power to take no action on a breach

99
Q

What are the three ways the Court must deal with an offender who has breached a community order?

A
  1. Order the offender to pay a fine not exceeding £2,500
  2. Amend terms of community order so as to impose more requirements
  3. If order was made by Mags = re-sentence offender for offence
100
Q

How long can the Court extend duration of a community order?

A

Up to 6 months beyond original end date

101
Q

True or False: Court cannot extend a community order?

A

False

102
Q

How can a community order be revoked?

A
  1. On application by the offender or

2. On application by probation officer

103
Q

When can a community order be revoked?

A

Having regard to change in circumstances since order was made

In the interest of justice to revoke the order or revoke the order and deal with offender in a different way

104
Q

True of False: a community can be revoked if offender has made good progress?

A

True

105
Q

Can a community order be revoked if offender further offends during community order?

A

Yes but depends on whether or not the order is still in force. The power to revoke does not arise where order has expired even if additional offence committed while the order was still current

106
Q

Can an order be revoked if the offender re-offends during community order but the order has expired?

A

No. The power to revoke does not arise where order has expired even if additional offence committed while the order was still current

107
Q

What options do the Crown and Magistrates’ Courts have in relation to revoking community orders in change of circumstances?

A
  1. may revoke a community order

2. may revoke a community order and re-sentence offender for offence

108
Q

What must the Magistrate’s’ take in consideration when revoking community orders?

A
  1. If it is in the interest of justice
  2. Circumstances which have arisen since order was made
  3. The extent to which the offender has complied with the community order
109
Q

What options do the Magistrates’ Court have in relation to revoking community orders made by the Crown court?

A
  1. Commit the offender in custody

2. Release the offender on bail to appear before the Crown Court

110
Q

What must the Magistrates’ Court do in relation to passing offenders who have breached by re-offending during a community order made by the Crown Court?

A

They must ensure that offender is committed in respect of the new offence

111
Q

Under what circumstances can a community order be amended?

A
  1. Change in offender’s residence
  2. Amendment of requirements in the community order
  3. Amending order by substituting a later date

Criminal Litigation (14 decks)

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