6 - Sentencing

Question 1

Explain the criminal justice process up until sentencing.

Answer 1

The criminal justice process begins with a person being arrested and brought before the magistrates’ court. In the alternative, the magistrates’ court issues a written charge and requisition to secure their attendance.

They are asked to enter a plea:
(a) If they plead guilty, the court moves to sentence.
(b) If they plead not guilty, there is a trial and the court comes to a verdict.

If the verdict is guilty, the defendant must be sentenced.

If they are not guilty, the defendant is acquitted of the charge and is free to go.

A person who is sentenced following either a guilty plea or verdict may appeal.

Question 2

What is The Sentencing Code?

Answer 2

The ‘Sentencing Code’ is a consolidation of existing sentencing procedure law. It brings together over 50 pieces of primary legislation relating to sentencing procedure into one single Sentencing Act 2020 (‘SA 2020’).

Parts 2 to 13 of the SA 2020 make up a code called the ‘Sentencing Code’ (the ‘Code’).

Unless referring specifically to sections 1 or 2 of the SA 2020, it is acceptable to refer to either the SA 2020 or the Code.

As well as the Code, courts also refer to sentencing guidelines published by the Sentencing Council.

Question 3

What are the different types of sentence?

Answer 3

There are a variety of disposals available to a court when dealing with an offender; all of which meet, to a greater or lesser degree, the principles of sentencing.

They fall into custodial and non-custodial sentences.

One of the main advantages of the SA 2020 is that it brings the wide range of disposals together ‘under one roof’ as it were.

Question 4

What are the purposes of sentencing for an adult?

Answer 4

When determining the proportionate sentence to be imposed, the court will have regard to the various purposes of sentencing.

Section 57 SA 2020- In cases involving those aged 18 and over (at the date of conviction) the court must have regard to:
(a) The punishment of offenders,
(b) The reduction of crime (including its reduction by deterrence),
(c) The reform and rehabilitation of offenders,
(d) The protection of the public, and
(e) The making of reparation by offenders to persons affected by their offences.

The purposes are given equal weight though in a particular case some may be more important than others.

Question 5

How do different courts approach sentencing?

Answer 5

The mechanics of how a court sentences an offender is essentially the same irrespective of which court is dealing.

The only key differences are:
- The availability of certain sentences; and
- The limits to the powers of the magistrates’ and youth courts.

In order to decide both the type and length of any particular sentence, the court must assess the seriousness of the case before it. To do so, it will refer to the sentencing guidelines.

Question 6

What is the procedure followed by the different courts when sentencing?

Answer 6

Sentencing happens once a defendant is convicted. This occurs either by the defendant entering a guilty plea or being found guilty after a trial.

The magistrates’ court, youth court and Crown Court are all courts of first instance with powers of sentence.

It is important to appreciate the difference between the maximum sentence which can be imposed for a specific offence and the maximum sentence which can be imposed by a particular court for that offence.

This means that statute also allows for defendants, where necessary and appropriate, to be committed for sentence to the Crown Court which has greater powers.

Section 14 SA 2020 for example, provides that magistrates can commit an adult for sentence to the Crown Court for offences triable either way where greater sentencing powers are required.

Question 7

How does Section 14 operate in cases where the magistrates’ sentencing powers are limited?

Answer 7

Section 14 applies when a defendant pleads guilty to an either-way offence (e.g., burglary) in the magistrates’ court.

Magistrates can hear the case, but their sentencing powers are limited:
- Under s.224 SA 2020, they can impose a maximum imprisonment of 12 months for an either-way offence.

If the magistrates deem the offence too serious for their sentencing powers, they may commit the defendant to the Crown Court for sentencing.

The Crown Court has broader powers and can impose the maximum sentence for burglary of a dwelling, which is 14 years under s.9 of the Theft Act 1968.

Question 8

What is the process for sentencing in cases involving summary-only offences?

Answer 8

For summary-only offences, sentencing is handled exclusively by the magistrates’ court:
- If the defendant pleads guilty, they are sentenced in the magistrates’ court.
- If the defendant pleads not guilty but is found guilty after trial, sentencing must still take place in the magistrates’ court.

Summary-only offences cannot be sent to the Crown Court for sentencing under any circumstances.

Question 9

How are either-way offences sentenced depending on the court and plea?

Answer 9

If the defendant pleads guilty in the magistrates’ court, they may be sentenced in the magistrates’ court, or they could be sent to the Crown Court for sentencing.

If the defendant pleads guilty in the Crown Court, they must be sentenced in the Crown Court and cannot be sent back to the magistrates’ court.

If the defendant pleads not guilty:
- If the case stays in the magistrates’ court for trial, sentencing may occur there, or the defendant could be sent to the Crown Court for sentencing.
- If the case is sent to the Crown Court for trial or the defendant elects to be tried there, the defendant must be sentenced in the Crown Court and cannot be sent back to the magistrates’ court.

Question 10

What is the sentencing process for indictable-only offences?

Answer 10

Indictable-only offences are sent directly to the Crown Court:
- If the defendant pleads guilty at the Plea and Trial Preparation Hearing (PTPH) in the Crown Court, they will be sentenced there.
- Once an indictable-only case is in the Crown Court, it cannot be sent back to the magistrates’ court.
For indictable-only offences, sentencing always occurs in the Crown Court.

Question 11

How is a defendant sentenced when they plead guilty but dispute the prosecution’s version of events?

Answer 11

When a defendant pleads guilty but disagrees with facts asserted by the prosecution, they may submit a written basis of plea to explain their position.

The prosecution will review the basis of plea to decide if it is acceptable:
- If accepted by the prosecution, the court will then proceed to consider if the basis is acceptable.
- If the court is satisfied with the basis, they will sentence the defendant on that basis of plea.
- If the court does not find the basis acceptable, a Newton Hearing will be required to determine the facts.

Question 12

What happens if the prosecution does not accept the defence’s basis of plea?

Answer 12

If the prosecution rejects the basis of plea, the judge will assess the basis to decide if it is absurd:
- If the judge finds it absurd, sentencing will proceed on the prosecution’s version of events.

If not absurd, the judge must determine if the basis would make a material difference to sentence:
- If it would not make a material difference, the defendant is sentenced on the defence’s basis of plea.
- If it would make a material difference, a Newton Hearing is held to resolve the factual dispute before sentencing.

Question 13

When must a court hold a Newton Hearing?

Answer 13

Where a defendant pleads guilty on a basis that will make a material difference to sentence, the court must hold a Newton hearing to decide the factual basis upon which it should pass sentence (R v Newton).

Question 14

What is the purpose and process of a Newton hearing in criminal court?

Answer 14

A Newton hearing is held when a defendant pleads guilty but disputes significant facts affecting the severity of their sentence.

In the Magistrates’ Court, it is presided over by magistrates or a District Judge, similar to a trial. In the Crown Court, it is conducted by a Judge without a jury, marking one of the few instances where a Crown Court Judge serves as both the arbiter of law and fact.

The prosecution presents an opening speech and calls evidence, with witnesses cross-examined by the defence.

The defendant can provide evidence, call witnesses, and both parties may make a closing speech to the Judge.

The Judge must determine if the prosecution has proven its version of events beyond reasonable doubt.
- If proven, the defendant is sentenced based on the prosecution’s facts.
- If not proven, sentencing is based on the defendant’s version, as outlined in their basis of plea.

Question 15

What impact does a Newton hearing have on the defendant’s guilty plea credit, and what are the reasons for this adjustment?

Answer 15

If the prosecution’s case is proven beyond reasonable doubt at the Newton hearing, the defendant:
- Loses part of the credit for their guilty plea.
- The Reduction in Sentence for a Guilty Plea guideline states that the reduction available at the point of plea is usually halved.
- If witnesses are called, this reduction may decrease further.

Rationale:
- The defendant’s actions led to additional court time that could have been saved due to their plea.
- Witnesses, who would have been spared by the plea, were required to give evidence at the Newton hearing.

Question 16

How does the principle of totality influence sentencing decisions when dealing with multiple offences?

Answer 16

The principle of totality requires a court to ensure the total sentence for multiple offences is just and proportionate.

This doesn’t simply involve adding individual sentences together. The Judge must consider whether to impose consecutive or concurrent sentences based on the circumstances:
- Concurrent sentences are typically used when offences arise from the same facts.
- Consecutive sentences are usually applied when offences stem from different facts.

Question 17

How long can a court defer sentencing for, and why would they do this?

Answer 17

A court can defer sentence for up to six months, the idea being that the defendant is allowed this time to prove to the court that D has either ‘changed’ or that the offence was an absolute ‘one-off’ and thus allowing D the ability to present to the court at the end of the deferral period in a much better light, and often, receive a lighter sentence as a result.

The deferral period cannot be extended save for where the magistrates’ court defers sentence for a period, at the end of which they commit to the Crown Court for sentence, the Crown Court then has the option of deferring for a further six month period.

Question 18

How can a defendant seek an indication of sentence in the magistrates’ court?

Answer 18

In the magistrates’ court, a defendant can request a sentence indication if:
- The offence is either-way.
- The court has accepted jurisdiction during the allocation process.

The court may provide an indication, though it is not required to do so.
- If given, the indication can only specify if the sentence would be custodial or non-custodial.

The indication is only binding if the defendant subsequently pleads guilty.

Question 19

How does a defendant obtain a Goodyear indication in the Crown Court?

Answer 19

In the Crown Court, a defendant may request a Goodyear indication regarding their sentence either before the Plea and Trial Preparation Hearing (PTPH) or at any stage before the jury’s verdict.

Before seeking an indication, the defendant must:
- Accept the prosecution facts or have an agreed written basis of plea with the prosecution and court.
- Instruct their counsel to ask for an advance indication of sentence.

The judge has discretion to decide whether or not to provide a Goodyear indication.

Question 20

Provide a summary of the overview of sentencing.

Answer 20

This element considered:
The principles of sentencing contained in the Sentencing Act 2020:
- The purpose of sentencing
- Sentencing powers in both the magistrates’ court and the Crown Court
- The purpose of Newton hearings.
- Totality of sentence
- Indications of sentence

Question 21

What is the starting point for the court when considering the seriousness of the offence?

Answer 21

In order to decide on the appropriate sentence, the court will consider the Sentencing Code 2020 alongside any relevant sentencing guidelines.

The court must determine the seriousness of the offence.

The starting point to determine seriousness is to consider culpability and harm.

Section 63 SA 2020: Where a court is considering the seriousness of any offence, it must consider -

(a) The offender’s culpability in committing the offence, and (b) Any harm which the offence (i) Caused, (ii) Was intended to cause, or (iii) Might foreseeably have caused.

Question 22

When must a court consider the thresholds for imposing custodial or community orders, and what conditions must be met under Sections 230 and 204 of the SA 2020?

Answer 22

Where appropriate the court must consider whether either statutory threshold has been passed to justify imposing a custodial or community order.

Section 230 SA 2020:

The court must not pass a custodial sentence unless it is of the opinion that—
(a) The offence, or
(b) The combination of the offence and one or more offences associated with it,
Was so serious that neither a fine alone nor a community sentence can be justified for the offence’

Section 204 SA 2020:

(2)The court must not make a community order unless it is of the opinion that—
(a) The offence, or
(b) The combination of the offence and one or more offences associated with it, was serious enough to warrant the making of such an order.

Question 23

What are the definitions of culpability and harm when determining sentence?

Answer 23

Culpability:
Culpability is essentially blameworthiness and is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning.

The mere presence of a factor that is inherent in the offence should not be used in assessing culpability – so for example, intention to cause serious harm is a necessary element in a section 18 OAPA. What would increase culpability might be how the injuries were inflicted e.g. with a weapon.

Harm:
Harm is an assessment of the damage caused to the victim.

So, in an assault it is a consideration of how injured the victim was and whether the assault was sustained or repeated.

In a theft it will be assessed by the financial loss resulting from the theft and any additional harm suffered by the victim or anyone else, for example injury or emotional distress.

Question 24

What are the rules for the court regarding Sentencing Guidelines?

Answer 24

Every court MUST follow any sentencing guidelines which are relevant to the offender’s case unless the court is satisfied that it would be contrary to the interests of justice to do so.

Sentencing guidelines are available for most of the significant offences sentenced in the magistrates’ court Sentencing guidelines for use in the magistrates’ courts and for a wide range of offences in the Crown Court Sentencing guidelines for use in Crown Court.

There are also overarching guidelines on general sentencing issues and principles such as Sentencing children and young people.

Where no offence-specific sentencing guideline exists, courts will refer to the General guideline: overarching principles. Judges in the Crown Court might also refer to Court of Appeal judgments to look at how sentences have been reached for similar cases.

The General guideline can also be used with offence-specific guidelines where factors are not covered, and overarching guidance is required.

Question 25

What happens at a sentencing hearing?

Answer 25

- Prosecution open facts, make submissions & applications - Defence Mitigate - Judge passes sentence **Role of the Prosecution:** The prosecutor reminds the court of: - Any previous convictions. - Ancillary orders requested, such as costs, compensation, or restraining orders. - Relevant sentencing guidelines and general sentencing issues. - Any victim impact statement submitted. It is not the role of the prosecution to suggest or determine the final sentence. **Role of the Defence**: - The defence ensures that a lawful sentence is sought and remains consistent with their instructions. - They may request a pre-sentence report (PSR), ideally before the prosecution opens. - If ordered, the case will usually be adjourned for the report. **Pre-sentence Reports (PSR)**: - Under s.30 SA 2020, a court must obtain a PSR before passing a custodial or community sentence, unless it is deemed unnecessary. - The report provides the court with guidance on the most suitable sentence. - Probation input is needed for community orders, and a probation officer will assess the defendant’s attitude towards the offence. **Other Reports**: The court or defence may order additional reports, such as: - Medical reports (for physical conditions). - Psychiatric reports (for mental health conditions). - If considering a Mental Health Act 1983 sentence, evidence from two medical practitioners confirming a mental disorder is required.

Question 26

How does The Code approach sentencing?

Answer 26

The Code confirms the approach the court should take as: Determine offence **seriousness** (i.e. harm and culpability). Consider **aggravating factors** (i.e. those increasing seriousness), both statutory (e.g. previous relevant convictions, on bail, racial, religious, disability or sexual aggravation) and other non-statutory matters (e.g. alcohol, abuse of power, breach of trust). Consider **mitigating factors** (i.e. those reducing seriousness), e.g. those relating to the offence, such as provocation or excessive self-defence; and those relating to the offender, such as positive good character, offender’s vulnerability, mental health, remorse or other personal mitigation. Consider any **assistance** given to the prosecution. Consider the appropriate **reduction** for any guilty plea. Consider **totality**. Appropriate **ancillary orders** must be considered e.g. compensation, disqualification, forfeiture, restraining order, costs, surcharge, Criminal Courts Charge.

Question 27

How is a sentence determined?

Answer 27

- Determine which category of the sentencing guidelines applies - Adjust the starting point up or down according to aggravating/ mitigating factors - Reduce sentence to credit any guilty plea - If multiple offences, ensure the final, overall sentence is just and proportionate

Question 28

How are offence categories determined in sentencing guidelines, and how do they influence the sentence range?

Answer 28

For most offences, sentencing guidelines set the appropriate sentence range based on: - Greater culpability and greater harm. - Greater culpability and lesser harm, or greater harm and lesser culpability. - Lesser culpability and lesser harm. Offence categories are ranked: - Category 1: highest level - Category 2: middle level - Category 3: lowest level Each category has a specific starting point and sentence range. **Example**: Offence: Wounding with intent (s.18 OAPA 1861). Facts: D, previously involved with drugs, stabbed V during a dispute, causing severe injuries. Category: 2 (due to use of a knife indicating higher culpability). - Category 1 – Starting point: 12 years’ custody, Range: 9-16 years - Category 2 – Starting point: 6 years’ custody, Range: 5-9 years - Category 3 – Starting point: 4 years’ custody, Range: 3-5 years

Question 29

How do aggravating and mitigating factors influence sentencing adjustments?

Answer 29

After determining the category, the judge uses aggravating and mitigating factors to adjust the sentence from the starting point: - Aggravating factors may increase the sentence. - Mitigating factors may reduce the sentence.

Question 30

What are some common aggravating factors considered during sentencing?

Answer 30

Statutory aggravating factors may include: - Previous convictions, especially for repeat offending - Offence committed on bail, or while under the influence of drugs/alcohol - Racial, religious, or discriminatory motivation - Planning, use of weapons, or targeting vulnerable victims - Offence committed in a group/gang, or in an isolated location - Failure to respond to previous sentences - Victim vulnerability or position of trust/power abuse - Public service workers as victims, presence of children/relatives - Deliberate violence, property damage, or degradation of the victim

Question 31

What are some common mitigating factors that may reduce a sentence?

Answer 31

Common mitigating factors include: - High degree of provocation - Mental illness or disability - Youth or age affecting responsibility - Minor role in the offence - Good character, lack of prior convictions - Personal circumstances (e.g., employment, family dependents)

Question 32

When are defendant's given credit for a guilty plea?

Answer 32

Defendants are given 'credit' or a discount on their sentence if they plead guilty. The amount of credit depends on when the guilty plea was entered. The **Reduction in Sentence for a Guilty Plea Guideline** says that the first stage of proceedings will normally be the first hearing where a plea or indication of plea is sought and recorded by the court. However, the safest way the defendant can obtain maximum credit is, either by: - Entering a guilty plea to a summary only or either way offence at the first hearing; or - Where the matter is indictable only, by providing an unequivocal indication at the first hearing that the defendant intends to plead guilty and the defence team will contact the Crown Court to arrange for this to happen imminently. **Reduction's to sentence after guilty plea:** - Guilty plea at first stage of proceedings – max 1/3 - Guilty plea after the first stage of proceedings (e.g., at the PTPH) – max ¼ - Guilty plea on the day of trial – sliding scale with max 1/10 **Example**: In our case the defendant pleaded guilty on the day of trial. Sentence was reduced by 10% accordingly resulting in a sentence of 7 years; just up from the starting point but well within the upper range - Starting point: 6 years - Range 5-9 years

Question 33

When passing sentence, what must a court do?

Answer 33

When passing sentence, the court must: - Explain to the defendant in non-technical language the sentence that has been passed - Identify the sentencing guidelines that it followed or why it decided not to follow guidelines that exist - Explain why the defendant passes the custody threshold if a custodial sentence is passed - Explain what credit has been given for a guilty plea and why it is at that level - Set out any particular aggravating and mitigating factors that the court considered in arriving at sentence

Question 34

Provide a summary of determining sentence.

Answer 34

This element considered the steps the Judge will go through to arrive at an appropriate sentence: The court must bear in mind the general principles and: - Determine which category of the sentencing guidelines applies- the court will assess which category a defendant's conduct falls into, in terms of culpability and harm. - Adjust the starting point up or down according to aggravating/ mitigating factors. Reduce sentence to credit any guilty plea: - Guilty plea at first stage of proceedings - maximum 1/3 - Guilty plea after first stage of proceedings - maximum 1/4 - Guilty plea on the day of trial- maximum 1/10

Question 35

What are the types of sentences under The SA 2020?

Answer 35

The SA 2020 divides sentences into two parts for accessibility: **First Part**: Absolute and conditional discharge Fines Compensation orders Disqualification Forfeiture or deprivation of property Restitution and restoration Orders for offenders under 18 Community orders Youth rehabilitation orders **Second Part**: Discretionary custodial sentences Life sentences Suspended imprisonment sentences Detention for offenders under 18 Minimum sentences for specific offences Sentences for dangerous offenders Detention for adults under 21

Question 36

What are the main non-custodial offences?

Answer 36

- Bind over - Absolute discharge - Conditional discharge - Fines - Community order

Question 37

What is a bind over (non-custodial sentence)?

Answer 37

It can be imposed in the magistrates' court and the Crown Court. A bind over, however, stands apart from the other sentencing options in that it can be, and often is, imposed on someone instead of them entering a guilty plea or being tried for an offence. It can even be imposed following an acquittal or on a witness in a case. A person can be bound over by a court to 'keep the peace' for a sum of money that they forfeit if they fail to do so. If a defendant breaches the peace they are liable to pay the monetary sum that they were bound over for.

Question 38

What is an absolute discharge (non-custodial sentence)?

Answer 38

S 79 SA2020 An absolute discharge is the lowest form of sentence available to the magistrates' court and the Crown Court. It is usually imposed to reflect either the triviality of an offence, the circumstances in which an offender came to be prosecuted or special factors relating to the offender. It is in effect no punishment at all since there is nothing that the defendant must do or not do to comply with it.

Question 39

What is a conditional discharge (non-custodial sentence)?

Answer 39

S 80 SA 2020 A conditional discharge, as the name suggests, is a discharge (so again, no actual punishment) but with a condition attached to it. The condition is that if the defendant commits another offence during the period specified, they can be re-sentenced for the original offence and sentenced for the new offence. The specified period must be **no more than three years.** The magistrates' court and the Crown Court can **both** impose a conditional discharge.

Question 40

What is a fine and who can issue it (non-custodial sentence)?

Answer 40

A fine is a financial penalty that requires a defendant to pay a certain sum of money to the court on conviction. The amount is due immediately and can only be paid in instalments with the agreement of the court. The magistrates' court and the Crown Court can both impose fines. In the Crown Court the power to fine is for any amount with no upper limit. In the magistrates' court, fines are set on a standard scale from Level 1 (£200) to Level 5 (unlimited).

Question 41

When are fines issued (non-custodial sentence)?

Answer 41

Fines can be imposed on conviction (guilty plea or verdict) of any offence unless specifically prohibited by statute (e.g. an offence that imposes a mandatory minimum sentence). A fine can be imposed alongside any other sentence except for a hospital order or alongside a discharge (conditional or absolute) when sentencing for a single offence. Although there is no general prohibition on doing so, it is generally accepted as undesirable to combine a fine with imprisonment. Fines are the most common type of sentence given by the courts (about 80% of offenders receive a fine) mainly because they are given for lower-level crimes such as minor driving offences and theft. Before imposing a fine, the court can either enquire of the defendant (in person or through their advocate) as to their means. This is usually by asking the defendant to fill in a means form in which they set out their income and outgoings. If an offender fails to pay their fine, they may be brought back before a magistrates' court (irrespective of which court issues the fine) and as a last resort D can be sentenced to a period of imprisonment in default.

Question 42

What is a community order (non-custodial sentence)?

Answer 42

A Community Order is a sentence that requires a defendant to comply with one or more requirements to punish and/or rehabilitate a defendant in the community. The court must not make a community order unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant the making of such an order. s 204 Sentencing Act 2020

Question 43

What are the requirements that the offender must meet if issued a Community Order, and what types of work can be ordered (non-custodial sentence)?

Answer 43

The offender must be over 18 and the offence must be punishable with imprisonmen.t When making a Community Order, the court must impose at least one of the requirements set out in s 201 and Sch 9 SA 2020. Multiple requirements must be compatible one with another. The maximum length of a community order is **three years.** (2) A community order must have at least one requirement, including a punitive element unless a fine is imposed or there are exceptional circumstances that would make it unjust (s.208 (10) – (11)). (3 (4) Requirement/s must avoid conflict with the offender’s religious beliefs and/or interference with the offender’s times of work and/or education. (5) The court may have regard to any period spent on remand, or qualifying electrically monitored curfew, when determining the restrictions/s on liberty which such a sentence imposes

Question 44

What are the requirements and conditions for imposing a Community Order under SA 2020?

Answer 44

**Duration**: The maximum length of a Community Order is three years. The court must specify the period of operation, which sets the overall limit within which requirements must be completed unless a specific time period is designated for a requirement. **Completion**: If a defendant completes their order within the specified time, they or the Probation Service may apply for the order to be discharged. **Pre-sentence Report Requiremen**t: Section 30 SA 2020 requires a court to obtain a pre-sentence report before imposing a Community Order unless deemed unnecessary. The Probation Service typically writes these reports and supervises Community Orders, so courts generally require a report unless the suitability of a requirement is clear.

Question 45

What are the key requirements and conditions of a Community Order under the SA 2020?

Answer 45

A Community Order requires the offender to be over 18 and the offence must be punishable by imprisonment. The court must impose at least one requirement from those specified in s 201 and Sch 9 SA 2020, with a maximum length of three years. Requirements include: **Unpaid Work Requirement**: 40-300 hours of unpaid work directed by the Probation Service, to be completed within 12 months. **Rehabilitation Activity Requirement**: Attend appointments or activities as directed, with a maximum number of days specified. **Programme Requirement**: Participate in an accredited programme (e.g., anger management), with the necessary attendance days specified. **Prohibited Activity Requirement:** Not engage in specified activities (e.g., attending certain events). **Curfew Requirement:** Stay at a specified address for 2-16 hours per day, monitored electronically unless inappropriate, for a maximum of 12 months. **Exclusion Requirement**: Not enter specific areas or approach certain individuals, for a maximum of two years, also monitored electronically unless inappropriate. **Residence Requirement**: Live at a specified address. **Foreign Travel Prohibition Requirement:** Not travel to specific countries for up to 12 months. **Mental Health Treatment Requirement**: Undergo treatment for a mental health condition, showing willingness and suitability. **Drug Rehabilitation Requirement:** Submit to drug tests and treatment if dependent on drugs, requiring consent. **Alcohol Treatment Requirement:** Attend treatment to reduce dependency on alcohol, requiring consent. **Alcohol Abstinence and Monitoring Requirement:** Abstain from alcohol for a maximum of 120 days. **Attendance Centre Requirement**: For offenders aged 18-24, attending 12-36 hours in a structured environment. **Electronic Monitoring Requirement**: Imposed for curfews or exclusions, ensuring compliance, and can be combined with other requirements.

Question 46

What are the consequences for breaching a Community Order under the SA 2020?

Answer 46

If an offender fails without reasonable excuse to comply with any requirement of their Community Order, the following occurs: - The offender is warned that their failure is unacceptable. A second failure leads to breach proceedings: - The offender returns to court to address the breach. - They can admit or deny the breach; if denied, a trial will occur. If the offender admits the breach or the court finds a breach occurred, the court must respond as follows (Sch 10 SA 2020): - Amend the order to make it more onerous. - Impose a fine of up to £2,500. - Revoke the Community Order and re-sentence for the original offence, considering compliance with the order. The court can extend the Community Order by up to six months beyond the usual three-year limit if necessary.

Question 47

What additional consequences arise for willful and persistent breaches of a Community Order?

Answer 47

For offenders who willfully and persistently breach their Community Order, the court may: - Revoke the Community Order and re-sentence for the original offence. - Impose a custodial sentence not exceeding six months, applicable if the offender has repeatedly failed to comply.

Question 48

Provide a summary of Non-Custodial Sentences.

Answer 48

The main types of non-custodial sentence are: - Bind over - Absolute discharge - Conditional discharge - Fines - Community order

Question 49

What are the main types of custodial sentence?

Answer 49

- Determinate custodial sentences - Suspended determinate custodial sentences - Minimum sentences for certain offences - Extended determinate sentences (EDS) - Mandatory life sentence for murder - Other statutory life sentences - Discretionary sentences

Question 50

What are discretionary custodial sentences?

Answer 50

Most imprisonable offences carry discretionary custodial sentences- i.e. a court may send them to prison provided the custodial threshold under s 230 Sentencing Act 2020 has been reached. - A custodial sentence must not be passed unless the court is satisfied that the offence - Or offences are so serious that neither a fine nor a Community Order can be justified. Where a custodial sentence is imposed it must be for the shortest possible period to reflect the purpose of the sentence (such as the punishment of offenders, reduction of crime, reform and rehabilitation of offenders, protection of the public and the making of reparation by offenders). The court uses sentencing guidelines to assist in determining the seriousness of an offence and the length of any sentence. The process a court goes though is covered in another element.

Question 51

What is a determinate custodial sentence (immediate imprisonment)?

Answer 51

A prison sentence for a defined period of time. e.g. 6 weeks, 12 months, 3 years or 8 years. These are the most usual custodial sentences passed.

Question 52

How does a court determine whether to impose concurrent or consecutive sentences for a defendant facing multiple offences (determinate custodial sentence)?

Answer 52

When sentencing a defendant for multiple offences, the court must decide whether to impose concurrent or consecutive sentences. - **Concurrent Sentences**: Two or more sentences run at the same time (e.g., two 12-month sentences run concurrently result in a total sentence of 12 months). - **Consecutive Sentences**: Two or more sentences run one after the other (e.g., two 12-month sentences run consecutively result in a total sentence of 24 months). The judge must consider the principle of totality, ensuring the overall sentence reflects the seriousness of the offences. Generally, offences arising from the same events will attract concurrent sentences, while consecutive sentences are appropriate when separate punishments are warranted, such as committing an offence while on bail for another offence.

Question 53

Who has the power to impose a determinate custodial sentence?

Answer 53

The magistrates' court can impose a maximum of: - 6 months for a summary only offence; - 6 months for a single either way offence; or - 12 months for two or more either way offences. The Crown Court has unlimited powers of imprisonment subject to the statutory maximum for each offence. In both cases it must be noted that these are the maximum powers. If an offence has a statutory maximum below the court's overall maximum sentencing power, then the court must follow the statute (e.g. criminal damage £5000 or below is summary only and has a maximum of 3 months).

Question 54

What factors determine how time spent before sentencing affects a determinate custodial sentence?

Answer 54

**Remand in Custody**: Any period a defendant has been remanded in custody prior to sentencing is automatically credited towards their sentence. This is managed by the Home Office once the defendant is serving their sentence. **Post-Sentence Supervision**: Depending on the length of the custodial sentence, there may be a period of post-sentence supervision. **Bail with Curfew Condition**: If a defendant has been on bail with an electronically monitored curfew condition of at least nine hours, they may be entitled to credit towards their sentence. - This credit is not automatic; the court must explicitly state that the curfew time counts. - Each day spent under curfew is calculated as half a day of prison time, rounded up to the nearest whole number. - Days when the curfew was breached do not count towards this calculation.

Question 55

What is a suspended sentence of imprisonment (custodial sentence)?

Answer 55

A suspended sentence of imprisonment must be for offending that crosses the custody threshold but the defendant does not go into immediate custody and if they fulfil certain criteria, they can avoid prison entirely. - A magistrates' court may suspend any determinate custodial sentence of between 14 days and 6 months. - The Crown Court may suspend any determinate custodial sentence of between 14 days and 2 years. The maximum length of a suspended sentence in the Crown Court is one of 2 years custody, suspended for an operational period of 2 years.

Question 56

What are the three elements to a suspended sentence (custodial sentence)?

Answer 56

A suspended sentence has three elements to it: 1. **The custodial term:** How long a custodial term they would have received but for it being suspended. 2. **The operational period**: How long the custodial term is suspended for. This must be between six months and two years. 3. **The supervision period**: How long the defendant must be supervised by the Probation Service for. This is optional, but if used, must be between six months and two years and equal to or shorter than the operational period. When passing a suspended sentence, the court may (but not must) make the defendant subject to any one or more of the Community Order requirements set out in Schedule 9 SA 2020.

Question 57

Provide an example of a custodial sentence.

Answer 57

Mr Smith is told that his 1-year sentence of imprisonment is being suspended for 2 years. His supervision period is 18 months and he has to complete 200 hours of unpaid work. What does that mean? Risk of Imprisonment: Mr Smith's 1-year prison sentence is suspended for 2 years, meaning he is at risk of serving this sentence if he breaches the terms of the suspension. Supervision Period: He will be supervised by the Probation Service for 18 months, requiring compliance with supervision requirements. Unpaid Work Requirement: Mr Smith must complete 200 hours of unpaid work during the suspended period. Conditions for Avoiding Imprisonment: If he does not commit another offence, complies with supervision, and completes the unpaid work, he will not serve any time of the 1-year sentence. Breach Consequences: Breaches can occur if he: - Commits another offence during the operational period. - Fails to comply with the Probation Service during the supervision period. - Fails to comply with any imposed Community Order requirement. Breach Process: - If a breach is alleged (b or c), he must be warned on the first breach. - If he breaches again within 12 months of the warning, breach proceedings will be initiated. Court's Decision on Breach: If the breach is proven or admitted, the court must activate the suspended sentence, either in part or whole, considering Mr Smith's compliance prior to the breach, unless it would be unjust to do so.

Question 58

What minimum sentences does statute prescribe and for which offences (custodial sentence)?

Answer 58

For some serious offences, statute prescribes minimum sentences that must be imposed unless there are exceptional circumstances: - Seven years’ imprisonment for a third Class A drug trafficking offence - Three years for a third domestic burglary - Five years for certain firearms offences - Six months for a second offence of possessing a weapon - Six months for threatening with a weapon.

Question 59

What is the minimum sentence for a Third Class A Drugs Offence (custodial sentence)?

Answer 59

Only the Crown Court has jurisdiction to impose this sentence For the Class A drug trafficking offence: (a) The defendant must have committed three Class A drug trafficking offences. (b) They must chronologically have occurred in this order: (i) Commission of offence 1 (ii) Conviction (plea/verdict of guilty) of offence 1 (iii) Commission of offence 2 (iv) Conviction (plea/verdict of guilty) of offence 2 (v) Commission of offence 3 (vi) Conviction (plea/verdict of guilty) of offence 3

Question 60

What is the minimum sentence for a third conviction to domestic burglary (custodial sentence)?

Answer 60

If convicted of a third burglary offence, the following minimum sentencing requirements and conditions apply: **Minimum Custodial Sentence**: The court must impose a minimum custodial sentence of seven years unless it would be unjust to do so. **Guilty Plea Reduction**: If the defendant pleads guilty at the first opportunity, the reduction must ensure that the final sentence is at least 80% of the minimum seven-year term, unless the court finds it unjust to impose the minimum term. **Nature of Burglary Offences**: - To attract the statutory minimum three-year sentence, all burglaries must be domestic burglaries, meaning the place burgled was a dwelling. - Burglary is ordinarily an either-way offence, but the magistrates’ court cannot impose a three-year custody sentence; hence, a defendant facing a third conviction must be committed to the Crown Court. **Multiple Counts**: A defendant can be sentenced for multiple counts of burglary at once, which typically count as a single conviction. Therefore, a third conviction for domestic burglary does not necessarily imply that only three domestic burglaries were committed. **Court Discretion**: The court may impose a longer sentence than the minimum three years and can consider the actual number of burglaries when deciding the sentence.

Question 61

What implications arise for a defendant facing multiple burglary charges in relation to their convictions and sentencing?

Answer 61

The implications for a defendant facing multiple burglary charges include: **Commitment to Crown Court**: If facing a third burglary conviction, the defendant must be committed to the Crown Court due to the magistrates’ court's inability to impose a sentence of three years' custody. **Single Conviction Rule**: When sentenced for more than one burglary offence, these usually count as a single conviction, meaning a third conviction for domestic burglary does not necessarily indicate only three domestic burglaries were committed. **Minimum Sentencing Criteria**: -To qualify for the statutory minimum three-year sentence, all burglaries must be classified as domestic burglaries. The court can impose a longer sentence than the minimum three years, taking into account the total number of burglaries committed. **Impact of Guilty Plea**: If the defendant enters a guilty plea early, it may affect the length of the sentence, ensuring it is at least 80% of the minimum seven-year term, unless the court deems it unjust.

Question 62

What is an extended determinate sentence?

Answer 62

Extended sentences are imposed in certain types of cases (specified violent, sexual or terrorism offences) and where the court has found that the offender is dangerous. It is the licence period which is extended not the period of custody as an extended licence period is required to protect the public from risk of harm. Extended determinate sentences s 254-257 SA 2020: The extension period must— (a)Be at least 1 year, and (b)Not exceed— (i)5 years in the case of a specified violent offence; (ii)8 years in the case of a specified sexual offence or a specified terrorism offence. The overall term of an EDS imposed cannot exceed the maximum term permitted for the offence. A prisoner serving an EDS is eligible to apply for parole at the 2/3 point of the **custodial term** and must be released at the end of the custodial period.

Question 63

When is a mandatory life sentence imposed (custodial sentence)?

Answer 63

Where a defendant is convicted of murder, (which is indictable only) the court must pass a mandatory life sentence. It has no discretion to pass any other sentence. A mandatory life sentence is not available for any other offence than murder. On sentence the court will fix a minimum term. Once that minimum term has expired the defendant can apply for release to the Parole Board who has ultimate discretion as to when a defendant is released. If released the defendant remains on licence for life.

Question 64

What is the minimum term for a mandatory life sentence (custodial sentence)?

Answer 64

The minimum term for murder is based on the starting points set out in Schedule 21 of the Sentencing Code.The Judge will decide which starting point applies and then adjust it based on the aggravating and mitigating factors present. For the most serious cases of murder, an offender may be sentenced to a life sentence with a ‘whole life order.’ This means that their crime was so serious that they will never be released from prison. There are never usually more than about 100 prisoners serving whole life orders. The remaining starting points are 30, 25 and 15 years.

Question 65

What is a statutory life sentence (custodial sentence)?

Answer 65

Offenders who are considered dangerous or who are convicted of a second, very serious offence may be sentenced to imprisonment for life. The provisions are contained in the SA 2020. Unlike the life sentence for murder which is mandatory there is still an element of discretion in the imposition of these life sentences. There are also offences such as rape or robbery for which the maximum sentence is life imprisonment. It is, however, unheard of for offenders convicted of these offences to get a life sentence without fulfilling the statutory provisions under the SA 2020.

Question 66

What are the criteria for imposing statutory life sentences on dangerous offenders and those with prior convictions?

Answer 66

**Life for Dangerous Offenders**: - The offender must be convicted of an offence specified in Schedule 19 of the Sentencing Code. - The court must determine that the offender is dangerous. - The nature of the offence must justify a life sentence. **Life for Second Listed Offence**: - The offender must be convicted of an offence listed in Schedule 15 of the Sentencing Code. - Both the sentence condition and the previous conviction condition must be satisfied. - A life sentence may not be imposed if the court finds it would be unjust to do so.

Question 67

Provide a summary of custodial sentences.

Answer 67

The main types of custodial sentence are: - Determinate custodial sentences - Suspended determinate custodial sentences - Minimum sentences for certain offences - Extended determinate sentences (EDS) - Mandatory life sentence for murder - Other statutory life sentences - Discretionary sentences