24: Custodial Sentences Flashcards
Custodial sentences =
1) a sentence of imprisonment,
2) a sentence of detention
3) a sentence of custody for life
4) a sentence of detention in a young offender institution
5) a detention and training order.
Sentence of imprisonment does NOT include
include contempt of court.
Who cannot be sentenced to imprisonment?
Ds under 21 years old
When may a D be committed to prison for a period before his case is disposed of??
if D is under 21 and is:
- remanded in custody
- committed in custody for sentence; or
- sent in custody for trial
He may be committed to prison for a period before his case is disposed of.
Max Custodial sentence = INDICTMENT
2 years. (Doesn’t apply for Common law offences)
Test for Custodial sentence:
“so serious that neither a fine alone nor a community sentence can be justified for the offence”
Mags Min prison sentence =
5 days
Mags Max prison sentence =
6months (one offence), 12 months (aggregate tr offences)
6 month time limit doesn’t apply for imprisonment for non-payment of fine. This applies for YO.
Instead of imprisoning, Mags MAY
order detention within court-house/police station, until an hour, not later than 8pm when order made. It shall not operate D of reasonable opp to get home that day.
What is the max custodial sentence in the Mags
Summary offence in Mags:
6 months
What is the max custodial sentence in the Mags
Criminal damage –
Maximum aggregate –
3 months
Maximum aggregate – 6 months
Mags limited to 6 months with summary offence. Judge can
activate suspended sentence for 6 months, so 12 months total.
RESTRICTIONS ON CUSTODIAL SENTENCE = TEST
offence must be so serious that neither fine nor community sentence can justify offence.
Court MAY pass Custodial Sentence where D:
fails express willingness to comply with requirement in CO, like:
- mental health treatment requirement
- drug rehabilitation requirement
- alcohol treatment requirement
When the court passes a Custodial Sentence other fixed by law, it must be for:
shortest term to commensurate seriousness of offence.
When considering the shortest term to commensurate seriousness of offence (FOR Custodial Sentences), the court should take into account:
- The licence; or
Post-supervision requirements that may be imposed
Where offence so serious only CS justified, but remainder offences no, CS can be
passed for lesser offences, but should run concurrently.
A Suspended Sentended is to be treated as
imprisonment
Two or more offences – when convicted 2 or more, court must consider what if they as associated?
seriousness of the sum,
Two or more offences – when convicted 2 or more, when will the court consider seriousness of the sum,?
provided they are “associated”.
An offence is “associated” with another if:
- D is convicted in same proceedings + sentenced at same time
- D admits commission in proceedings + requests court take into consideration
Totality principle =
where consecutive sentences imposed, MUST ensure total time served is commensurate with seriousness of overall offending.
Calculating time served = Account MUST be taken of
time spent prior conviction/ sentence.
When calculating time served, the court MUST take into account time spent prior conviction/sentence, this applies to:
BUT NOT:
This applies to: imprisonment, young offender institutions, custodial sentences.
But NOT detention and training orders!.
When imposing DTO, MUST take into account
period spent in custody on remand.
Where D is remanded on bail and subject to conditions:
- Qualifying curfew condition; and
- Electronic monitoring condition
The court MUST
norm direct “credit period” = count as time served. Court makes this direction, contra adjustment time spent on remand in custody where direction not required.
What is a credit period?
half no. days spent subject to those conditions count as time served by D as part of sentence.
A SS counts as sentence of imprisonment. Where D convicted more one court, court should impose
separate sentences, if fails to, presumed sentences are concurrent.
Consecutive sentences norm be used where:
- Offences arise out of unrelated facts/incidents
- Offences are same/similar kind but overall criminality not sufficiently reflected by concurrent sentence
- One offence qualifies statutory min sentence and concurrent would undermine this.
Concurrent sentences will norm be used where:
- Offences arise out of same incident or facts; or
- Serious of offences of same or similar kind.
What should normally be left out when imposing sentence:
Matters of:
- Early release
- Licence; and
- Home detention curfew
MANDATORY LIFE SENTECE:
D over 21 + convicted murder =
MUST sentenced life imprisonment
MANDATORY LIFE SENTECE:
D under 21 on date of conviction =
MUST custody for life
MANDATORY LIFE SENTECE:
D under 18 + convicted murder =
MUST detention at Her Majesty’s pleasure
MANDATORY LIFE SENTECE:
Court MUST norm order early release provisions to apply when
Considering what factors?:
- Seriousness of offence; and
- Effect of direction
MANDATORY LIFE SENTECE:
If D aged 21 or over when offence committed, Court MAY order
early release provisions don’t apply.
Judge fixing min term to be served for mandatory life sentence for murder
looks at X
NOT Y
Judge fixing min term to be served for mandatory life sentence for murder -) seriousness of offence, not dangerousness of offender.
In considering seriousness, court looks at: the general principles + guidelines.
MINIMUM Custodial Sentence for CLASS A DRUGs
- Conviction of Class A drug trafficking offences
- Aged 18 or over at time offence + 2 relevant drug convictions; and
- One offence committed after he had been convicted of the other
The CC MUST impose CS for at least
7 years, unless unjust.
MINIMUM CS for CLASS A DRUGs
is 7 years for what conditions have to be met?
- Conviction of Class A drug trafficking offences
- Aged 18 or over at time offence + 2 relevant drug convictions; and
- One offence committed after he had been convicted of the other
MINIMUM CS for CLASS A DRUGs
Where D pleads guilty – MUST take into account
stage he pleads + circumstances.
MINIMUM CS for CLASS A DRUGs
Where class A drug conviction – MUST NOT impose sentence less than:
80% min. sentence
80% 7 years = 5 years 8 months.
If sentence taken higher starting point than min, sentence reduction of 1/3 may be fine, but cannot
be less than 80% min sentence.
MINIMUM CS for DOMESTIC BURGLARY
- Convicted domestic burglary
- Aged 18 or over at time offence + 2 relevant domestic burglary conviction; and
- One offence committed after he was convicted of the other, and both committed after 1999
The CC MUST impose CS for at least
3 years, unless unjust.
MINIMUM CS for DOMESTIC BURGLARY is 3 years, but what conditions must be met?
- Convicted domestic burglary
- Aged 18 or over at time offence + 2 relevant domestic burglary conviction; and
- One offence committed after he was convicted of the other, and both committed after 1999
MINIMUM CS for DOMESTIC BURGLARY
Where D pleads guilty – MUST take into account:
stage he pleads + circumstances.
MINIMUM CS for DOMESTIC BURGLARY
Where class A drug conviction – MUST NOT impose sentence less than:
80% min. sentence
80% 3 years = 2 years, 5 months.
If sentence taken higher starting point than min, sentence reduction of 1/3 may be fine, but cannot be less than 80% min sentence.
SUSPENDED SENTENCE (SS)
SS = judge delaying D’s serving of sentence after conviction. Applies to:
- Sentences of imprisonment; and
- Detention in Young Offender Institution
SUSPENDED SENTENCE (SS)
When is it available?
Available where: court imposes determinate custodial sentence of not more than 2 years. Sentences less than 14 days cannot be suspender.
can a DTO be suspended?
no
A CS that is suspended should be for what term?
same term as would have applied if served immediately.
Consecutive terms =
Where 2 or more sentences imposed served consecutively, power to suspend sentence NOT exercisable unless
aggregate of term does not exceed 2 years.
An immediate prison sentence and SS should not be:
impose on same occasion nor, SS be imposed on D currently imprisoned. Court CANNOT on same time impose SS and CS.
Court may impose a SS with a
community requirement. Electronic monitoring is a free standing requirement.
Where court passes SS containing 2 or more different requirements, it MUST consider X
They should avoid interfering with:
if it is compatible.
- D’s religious beliefs
- Requirements of other orders he is subject to
- Avoid interference with times, e.g. works/school.
Court MUST be satisfied local facilities exist, and arrangements in place. SS MUST specify the local justice area.
Breach of a Suspended sentence:
Responsible officer thinks D failed without reasonable excuse, officer MUST give warning:
- Describing circumstances of failure
- Stating failure = unacceptable
- Informing officer than if fail again within 12 months, he will be brought back to court.
Breach of a Suspended sentence:
Responsible officer need not give warning if
previous warning given within 12 months. If breached warning = he will be brough to enforcement officer. The EO must consider the matter + in appropriate cause info to be laid before appropriate court.
suspended sentence:
owers available: If D over 18, court MUST: consider case and deal with him::
- Order SS take effect with full term (activate full sentence)
- Order SS take effect in part
- Order D pay fine not exceeding £2,500
- May amend community requirement by:
- Imposing more onerous community requirement
- Extending supervision period
- Extending operational period
- Where no community requirement, court may extent operational period
Court MUST make order under (1) or (2) unless unjust, factors to consider:
- D’s extent he complied with community requirement; and
- Facts of subsequent offence
Where a Suspended Sentence is breached, what must the court NOT do?
NOT permissible for court to revoke order. MUST active SS in whole or part unless unjust. If SS is activated, it MAY be ordered to run consecutively or concurrently to CS imposed for offence which triggered breach.
Where breach in form of further offence, the facts/nature of new offence is primary consideration. Relevant factors:
- Strong personal mitigation;
- Realistic prospect rehabilitation; or
- If immediate custody will significantly impact others
If failure to comply with a community requirement, court MUST take into account the extent to which D complied.
