2.8 Criminal Litigation - Sentencing Flashcards
What is the role of Sentencing Guidelines (Sentencing Code, Sentencing Act 2020)?
Court to follow relevant sentencing guidelines (s. 59)
- Detailed guidelines > Each offence (sentenced within these guidelines, unless court is satisfied contrary to interests of justice)
- Otherwise court must give reasons in open court
- Must consider punishment, crime reduction, rehab/reform, protect public, reparation of affected persons
Post-conviction guidelines
- D pleads/found guilty => Sentence (obtain pre-sentence report UNLESS court believes report not necessary)/Adjourn for reporting
What are the bands of seriousness?
High seriousness
- Falls just below custody threshold
- Attracts more intensive sentence w/ other reqs
Medium seriousness
- Falls within custody threshold
- Attracts one or more reqs as commensurate w/ seriousness
Low seriousness
- Just crosses custody threshold
What must courts consider when passing sentences based on seriousness?
1) Culpability
- D’s intent to cause harm
- D’s recklessness as to whether harm caused
- D’s knowledge re specific risks
- D’s negligence
2) Harm
- Individual victims (injury/financial loss)
- Community
- Animals/Others
3) Intent to cause/might foreseeably have caused when considering seriousness
What are aggravating factors?
Increase sentence
Assessment of culpability and harm
1) D’s culpability
2) Statutory factors
- Offences during bail
- Hostility based on Race/Religion/Sex/Disability
- Previous convictions
Factors > Higher than usual degree of culpability
- Planning
- Intent > Serious harm
- Professional/Gang offending
- Financial gain/High profit
- Conceal evidence
- NOT respond to warnings
- Weapon use
- Licence offences
- Deliberate targeting > Vulnerable victims
- Deliberate gratuitous violence
- Abuse of power/trust
Factors > Higher degree of harm
- Multiple victims
- Serious effect on victim
- Assault (sustained/repeated)
- Vulnerable victim
- Offence vs public sector
- Others’ presence
- Additional degradation
- High value
What are mitigating factors?
Reduce seriousness of senence
- Provocation
- Mental disability
- Playing minor role
- Ds motivated by genuine fear
- Acting on impulse
- Attempt to make reparation to victim
Reduce sentence based on guilty plea (discounts up to 1/3 available)
- Guilty plea after MC first hearing => Max. 1/3
- After first hearing => Max. 1/4
- Guilty plea on day of trial => Max. 1/10
What is the Totality Principle?
Sentencing D for MORE THAN one offence => Must consider ALL offences
- Other offences may NOT be charged, but D is prepared to admit
Can impose concurrent/consecutive sentences
Court should pass ‘total’ sentence reflecting all offending behaviour (just and proportionate, e.g. offence arises out of unrelated facts/incidents)
- Totality Guidelines
- Address offending behaviour + personal facts
What type of custodial sentences are available?
Length of sentence
- MC > Max. 6 months’ imprisonment (one offence)/Max. 12 months’ imprisonment (consecutive offences - 1 or 2 EW offences)
- CC > Max. permitted for that sentence
Mandatory sentences
- Murder (life)
- Firearms offence (5 years)
- Drugs trafficking (7 years for 3rd offence, unless unjust)
- Domestic burglary (3 years for 3rd offence, unless unjust)
Dangerous offenders
- Life sentence
- Imprisonment > Public protection
- Extended imprisonment
Early release of prisoners
- Reduce sentence by time served on remand
- Remand on conditional bail (electronically monitored curfew of +9 hours per day) => Reduce by 1/2 day for every night spent on curfew
- Can be released halfway through sentence
- Home detention curfew (HDC) (e-monitored curfew) > Prisoners’ early release (if imprisoned for 3 months-4 years)
Custody
- Imprisonment > Young Offenders’ Institution (< 21 years)/Adult prison
- Court believes offence/combining offence + association offence => So serious that neither fine/community sentence can be justified for offence
- Custody threshold test (most serious offence/seriousness assessment/BUT other punishment may be suitable due to personal mitigation)
What type of suspended sentences are available?
1) Custody threshold is met
2) D > 18
=> D subject to suspension period reqs
=> Court can suspend
- Imprisonment > +14 days/Max. 24 months or 6 months (MC)
- Sentence (6 months to 2 years)
What type of community orders can be made?
In descending order
Discharge
- Absolute (even if D guilty > Court may think inappropriate for punishment)
- Conditional (no offences during specified period (max. 3 months) otherwise re-sentence for discharged offence when sentencing for other offence)
Fine
- Max. fines for particular offence
- Seriousness + net weekly income (Level A (25-75% of D’s weekly income)/Level E (300-500%))
- Instalment payments also available
- Otherwise if compensation order granted as well => Compensation order takes priority
Community penalty
- D > 16yo
- Max. 3 years
- Offence ‘serious enough’ > Community sentence (inc. community order - particular reqs most suitable for D, restrictions on liberty imposed by order (court’s opinion in acc w/ seriousness/combination of offences)
Custody
What are the requirements for community orders?
Unpaid work
- 40-300 hours
Activity requirements
- Less than 60 days
Programme reqs
Curfew
- 2-12 hours
- Max. 6 months
Exclusion
- Max. 2 years
Residence
- Specified location
Mental health > Mental practitioner
Drug rehab
- 6 months-3 years
Alcohol treatment
- +6 months
Supervision > Probation officer appointment
Attendance centre
- 12-36 hours
- D < 25yo
What other sentences can be imposed?
Bind over
Driving disqualification
Licence endorsed with penalty points
Ancillary orders
- Costs
- Compensation orders
- Forfeiture orders
- Confiscation and restitution order
- Criminal behaviour order
- Sex offender notification reqs
- Serious crime prevention orders
What is a Newton Hearing?
1) D pleads guilty BUT D disputes CPS’s facts
2) D’s dispute may influence court’s sentence
3) Either;
a) Court may accept D’s facts
b) Court allows CPS/D to call evidence > Court can decide re true facts => Newton hearing
- Call Ws + Formal evidence rules apply
- If court believes CPS => D may lose some/all sentencing credit for guilty plea
- If court believes D => D may NOT lose sentencing credit
