5. Sentencing Principles

Question 1

What are three aggravating factors which must be taken into account on sentencing?

Answer 1

1. Previous convictions, having regard to their nature and time passed
2. Offence committed on bail
3. Motivated by protected characteristic of victim

Question 2

What are eleven aggravating factors which may be taken into account from the Guidelines when sentencing ?

Answer 2

1. Premeditation
2. Committed in a group
3. Vulnerable victim
4. Drunk or on drugs
5. Attempt to conceal evidence
6. High level of profit from the offence
7. Gratuitous violence
8. Presence of others during the commission of the offence (ie. children)
9. Location of the offence (ie. isolated place)
10. Property offence - high value or sentimental nature of property
11. Offence taken into consideration

Question 3

What are offences taken into consideration (TIC), and how are they relevant to sentencing?

Answer 3

may serve as both an aggravating or mitigating factor.
* offences which offender has not been convicted of, but admitted to committing.

should not be taken into account if:
1) TIC is likely to result in sentence greater than available for the convicted offence;
2) Public interest that separate prosecution be sought for TIC

Question 4

What are six mitigating factors which may be taken into account on sentencing?

Answer 4

1. No previous convictions
2. Examplary character or conduct
3. Genuine remorse
4. Co-operation
5. Sole or primary carer for a dependent relative
6. Very young/old
7. Early guilty plea
8. Determination to treat behavior that may fuel reoffending (ie. rehab)

Question 5

What is the totality principle the court will consider when sentencing?

Answer 5

Overall sentence must be proportionate and just, which reflect’s criminality of the offender.

Question 6

When will sentences for multiple offences generally be served concurrently?

Answer 6

Offences are connected and arise out of the same facts or incident, and the defendant is found guilty of more than one.

Question 7

When will sentences for multiple offences generally be served consecutively?

Answer 7

1) Offences are unrelated;
2) Similar, but would not reflect the overall criminality;
3) Where offence qualifies for a statutory minimum, and concurrent sentence would evade this.

Question 8

What reduction in sentence will the defendant receive if they plead guilty at the first available opportunity?

Answer 8

One third off

Question 9

What does the custody threshold test provide, which must be passed before a custodial sentence can be imposed?

Answer 9

No offender should be sentenced to a custodial sentence unless the offence (or series of offences) is so serious that neither a fine nor a community order will suffice

Question 10

How long can a sentence be suspended for in the Magistrate’s Court ?

Answer 10

Between 6 months to 2 years

Question 11

When is a Newton Hearing held?

Answer 11

Held where the defendant pleads guilty BUT disputes the version of facts alleged by the prosecution.

• The court hears evidence and decides whether to accept P or D’s version as the basis for sentencing.
• burden of proof on prosecution.

Question 12

In a Newton hearing, if there is a substantial dispute as to the facts, whose version must the judge favor?

Answer 12

favour the defence’s version.

Question 13

What happens if a Newton hearing is settled in (1) the prosecution’s favour and (2) the defendant’s favour?

Answer 13

Prosecution’s favour: Defendant loses 1/3 credit for pleading guilty
Defence’s favour: Defendant retains 1/3 credit

Question 14

What is the maximum credit a defendant is entitled to for pleading guilty?

Answer 14

1st stage in the proceedings - max 1/3 off full sentence
After the 1st stage (ie. PTPH) - max 1/4 off full sentence
Day of trial - max 1/10 off full sentence

• if D loses Newton hearing later on, risks losing credit.

Question 15

When determining the ‘seriousness’ of an offence what two factors does the court take into account (s.63, SA)?

Answer 15

1) culpability - blameworthiness and role played in the offence.
* scale starting from (i) deliberate; (ii) reckless; (iii) negligent; and (iv) no/low culpability.

2) harm caused, intended, or foreseeably may have caused.
* higher harm where offending extends beyond injuries, but victims every day life ie. ability to work.

Question 16

What are the four statutory aggravating factors?

Answer 16

1) Offence committed whilst on bail
2) Pattern of repeat offending - (i) nature of previous offence and (ii) time since it happened.
2) Assaults on emergency workers
3) Hostility is based on victim’s protected characteristics (ie. disability, and sexual orientation).

Question 17

What are the main four steps in determining a defendant’s sentence?

Answer 17

Start w/ the presumption against passing a custodial sentence then:

1) Determine seriousness of the offence;
2) Adjust the starting point in (1) by considering aggravating and mitigating factors;
3) Reduction for guilty pleas (or ie. pre-trial detention);
4) Dangeroussness of offender - whether an extended sentence is warranted;
4) If sentenced for multiple offences, consider the totality principle - whether the final sentence is just and proportionate
5) Reasoning by judge for and the effect of the sentence.

Question 18

What are the five main objectives of sentencing (s.57 of SA 2020)?

Answer 18

1. punishment of offenders (retribution)
2. reduction of crime (deterrence);
3. reform and rehabilitation of offenders;
4. public protection; and
5. providing reparation to the victim by the offender.

Note:
All have equal weight, but depending on the offence, particular ones may be of higher relevance.

Question 19

When is the prosecution required to prepare a Pre-Sentencing Reports?

Answer 19

if the sentence is either custodial or a community order.
- unless the court considers it ‘unecessary.’
- Defence can request a copy, but not automatically entitled to one unless it asks.

Question 20

What is purpose is the Pre-Sentence Report intended to serve?

Answer 20

enables the court to deal with sentencing appropriately and obtain external output

ie. whether defendant would be suitable for any programmes?

Question 21

What are the various types of non-custodial sentences?

Answer 21

• binding over
• absolute discharge
• conditional discharge
• fines
• community order

Question 22

What are the various forms of custodial sentences?

Answer 22

• determinate sentence
• suspended sentence
• minimum sentence
• extended determinate sentence

Question 23

What is the distinction between an absolute and a conditional discharge?

Answer 23

An absolute discharge means a defendant is freed without any particular conditions attached to its release.

Cf. conditional discharge, where a defendant may be resentenced if they commit another offence for both the original and the new offence.

Question 24

What is the maximum length of time a conditional discharge can last?

Answer 24

3 years

Question 25

What is one important consideration to remember when calculating whether the conditional discharge period has expired?

Answer 25

relevant date is the date the new offence was committed, and not when D was re-arrested.

Question 26

In what circumstances will the court sentence a defendant to a community order?

Answer 26

presumption is that such sentence must not be passed down unless court believes the offence/combination of offences are serious enough to warrant it.

Question 27

Can a community order be imposed alongside a custodial term?

Answer 27

No, expect where the defendant is released early, then similar conditions may be imposed during that time.

Question 28

What three conditions must be satisfied before a defendant can be subject to a community order ?

Answer 28

1) Defendant must be over 18;
2) Offence is one punishable by a term of imprisonment not exceeding 3 years;
3) Order has at least one punitive condition attached;
* unless a fine was impose or there exists exceptional cirucmstance that would make it unjust to.

4) Conditions do not conflict with an offender’s relgious beliefs/work/education.

Question 29

What is an exclusion requirement, and what is the maximum period a person can be subjected one?

Answer 29

requires defendant to not enter a specific area or to keep away from a particular person.
- last no longer than 2 years
- should be electronically monitored.

Question 30

What is the maximum period a person can be subjected to a foreign exclusion requirement?

Answer 30

12 months

Question 31

Which offence carries a mandatory life sentence?

Answer 31

Murder

Question 32

What community order conditions generally also require electronic monitoring alongside it?

Answer 32

Curfew and exclusion requirement
- unless the court considers it inappropriate.

Question 33

What is one consideration to note about the court’s re-sentencing powers for breaching a community order?

Answer 33

Court can impose a custodial sentence, not exceeding 6 months, even if the offence the offender was intially sentenced to is not normally punishable with imprisonment.

Question 34

What is the maximum determinate sentence the Magistrates Court can sentence an offender to?

Answer 34

summary-only offence - 6 months

single either-way offence - 6 months

Two or more either-way offences - 12 months

• totality of all offences, so if D is guilty of 3 summary offences, then toal maximum sentence is 6 months.

Question 35

When might a defendant also be entitled to credit for time served prior to sentencing?

Answer 35

if it was out on bail with an electronic monior and subjected to a curfew of min. 9 hours.
- Not automatic, only if court chooses to.
- Calculate as 1/2 day in custody.

Question 36

What is the minimum and maximum custodial terms under which a suspended sentence may be imposed?

Answer 36

• Magistrate’s court - between 14 days to 6 months
• Crown Court - between 14 days to 2 years

Question 37

For how long can a suspended sentence be operational?

Answer 37

Court is required to specify operational period.
* Must be for a minimum of six months, and cannot exceed two years.

If it wishes to attach a community order, then it may specify a supervision period (optional).

Question 38

In the context of suspended sentences, what is the distinction between the custodial term, operational period, and supervision period?

Answer 38

Custodial term refers to how long original sentence would have been.

Operational period refers to time suspended sentence is imposed.

Suspension period is optional
* equal or shorter than the operational period.
* Starts after operational period ends.

Question 39

What is the key distinction between a community service order and a suspended sentence?

Answer 39

Suspended sentence - offender is not re-sentenced if it breaches/re-offends.
* Original sentence is simply ‘activated.’

Community service order - offender is re-sentenced, and generally requires ‘persistent’ breaches for court to.

Question 40

What is an extended determinate sentence?

Answer 40

where an offender’s eligibility period for licence/parole is extended.
- requires that 2/3rd of the original sentence be served in custody to qualify for possible parole.
- licence term is also extended by minimum of 1 year.

cf. for non-extended sentences, offenders are eligible for parole after 1/2 time served.

Question 41

What four conditions must be satisfied for the court to impose an extended determinate sentence?

Answer 41

1) Specified offence - violent, sexual, or terrorist nature;
2) Pose significant public risk and likelihood of re-offending;
3) Life term is not available or justified; and
4) Either has:
* previous conviction for an offence under sch.15B of CJA ‘03 (small group of specified sexual, violent, terrorist off.); or
* current offence justifies a custodial sentece of at least 4 years.