7- Sentencing

Question 1

What are the aims of sentencing?

Answer 1

Part of decision-making process when sentencing has to be about what the punishment will serve to achieve.

Criminal Justice Act 2003 says court must have regard to:

 - punishment of offenders´
 - reduction of crime (including reduction by deterrence)
 - reform and rehabilation of offenders
 - protection of the public
 - making of reparation by offenders to persons affected by their their offences.

Punishment often referred as a retribution.

Question 2

What is retribution?

Answer 2

Imposing a punishment bc the offender deserves punishment.

Question 3

What is the aim of retribution?

Answer 3

It doesn’t seek to reduce crime or alter the offender’s future behaviour.

Old saying ‘an eye for an eye, a tooth for a tooth, a life for a life’- one of the factors used to justify the death penalty.

Question 4

What are tariff sentences?

Answer 4

Retribution today based on the idea that each offence should have a certain tariff or level of sentencing.

Sentencing Council provides guidelines for all main categories of offence.

Judges should not normally give out a lower sentence than the minimum set out in the guidelines.

Question 5

What is deterrence?

Answer 5

Giving a punishment aimed at putting off the defendant from reoffending bc of fear of punishment or preventing potential offenders from committing similar crimes.

Can be individual deterrence (to ensure offender does not re-offend through fear of punishment) or general (preventing offenders from committing the crime).

Question 6

Facts about individual deterrence:

Answer 6

Penalties include prison sentence, suspended sentence or heavy fine.

Prison does not appear to be a very good deterrent as 55% of adult prisioners reoffend within 2 years of release.

With young offenders, deterrence works even less: over 70% of young offenders given a custodial sentence reoffend within 2 years.

Question 7

Facts about general deterrence:

Answer 7

Value of this even more doubtful. Potential offenders are rarely detained.

General deterrence in conflict with retribution, since it involves sentencing an offender to a longer ter that is deserved for a specific offence.

Probably least effective or fair principle of sentencing.

Question 8

What is the main aim of refor or rehabilitation?

Answer 8

To reform offenders and rehabilitate them to society.

Question 9

What is rehabilitation?

Answer 9

Trying to alter offender’s behaviour so that they will conform to community norms and not offend in the future.

Question 10

What is reformation?

Answer 10

Trying to reform the offender’s behaviour so that they won’t offend in the future.

Particularly relevant for young offenders who the courts will want to support in making better choices.

Court will be given info.- medical issues, school reports, job prospects. Instead of custodial sentence they will be given a community order with different requirements aimed at rehabilitating them.

Question 11

Why is protection of the public needed and how is it achieved?

Answer 11

Needs to be protected from dangerous offenders.

Achieved through:

Criminal Justice Act 2003 introduced provision for serious offences (murder, rape) that the court must send the offender to prison, without the prospect of parole for a definite period of time.

For less serious offences, court can offer protection to the public by:

 - Banning the person from driving
 - Prohibiting them from entering certain areas (exclusion order)
 - Imposing a curfew order on them by electronic tag.

Question 12

What is reparation?

Answer 12

Where the offender compensates the victim or society for the offending behaviour by:

 - Paying a sum of money to the victim
 - Returning stolen goods
 - Apologising to the victim in person (restorative justice)
 - Unpaid work in the community.

Question 13

What is denunciation?

Answer 13

Expressing society’s disapproval of an offender’s behaviour.

This can change over time (domestic abuse, online bullying…)

Question 14

What powers do courts have in relation to custodial sentences?

Answer 14

CC has ‘unlimited powers’ in sentencing. It can pass a custodial sentence of any length up to the max tier for that particular offence (ABH- 5y max tariff)

MC only have power to send person to prison for 6 months for 1 offence and 12 for 2.

Question 15

What powers do the courts have in relation to fines?

Answer 15

CC has unlimited powers to fine- no max limit to the amount they can fine an individual-company.

In practice, biggest fines usually for businesses who have breached the Health and Safety laws.

Summary offences in MC are set in 5 different levels with a max fine for each level. Current maxiumuns:

  - Level 1: 200 pounds
  - Level 2: 500
  - Level 3: 1000
  - Level 4: 2500
  - Level 5: Unlimited

Question 16

What are other powers the courts have?

Answer 16

Apart from imprisonment and fines, courts can issue:

 - A conditional discharge
 - A compensation order
 - A disqualification from driving

Question 17

What are the different sentences available for adults?

Answer 17

1. Custodial sentences
   
   • mandatory life sentences
   • discretionary life sentences
   • fixed-term sentences
   • suspended prison sentences
2. Community orders
   
   • unpaid work requirement
   • prohibited activity requirement
   • curfew requirement
   • supervision requirement
3. Discharges
   
   • conditional
   • absolute
4. Other powers of the court

Question 18

Custodial sentences for adults:

Answer 18

Criminal Justice Act 2003 says that the court must not pass a custodial sentence unless the offence/combination of offences “was so serious netiher a fine alone or a community sentence can be justified”.

Most serious punishment (loss of liberty)

Range from:

 - mandatory and discretionary life sentences
 - fixed-term sentences
 - suspended sentences

Question 19

Mandatory life sentences (custodial sentences):

Answer 19

For murder, only sentnece a judge can give is life.

However, judge can state minimum number of years’ imprisonment the offender must serve before being eligible for release on licence. ´

CJA 2003 gives a minimum tariff of 12 years and a max tariff of a full life term.

Offenders aged 15-17 would be sent to a Young Offenders Institution and from 18-20 to a YOI or wing of an adult prison, being transferred at 21.

Question 20

Discretionary life sentences (custodial sentences):

Answer 20

For other serious offences under s.18 of the Offences Against the Person Act 1861 the max sentence is life but the judge doesn’t have to impose it.

Judge has dsicretion in sentencing and can give a lesser sentence.

If there was a second serious offence life would most likely be given.

Question 21

Fixed-term sentences (custodial sentences)

Answer 21

For other offences the lenght of the sentence will depend on a number of factors:

  - max sentence available (CJA 2003, OAPA 1861)
  - seriousness of the crime
  - defendant's previous record

Prisoners don’t serve whole sentence: released after havind served half of it.

Only offenders +21 can be given a sentence of imprisonment.

Prisons in England and Wales are overcrowded. Big increase in nº of people being sent to prison and not enough room.

Question 22

Suspended prison sentences (custodial sentences):

Answer 22

Can be up to 2 years (6 months max in MC)

Offender will not serve time in prison unless they commit further crime during the period of the suspended sentence.

If this is the case sentence is ‘activated’ and offender will serve the sentence in addition to the new sentence.

Suspended s. only given where the offence is so serious that a custodial sentence would have been appropriate, but there are exceptional ciscumstances in the case that justify suspending the sentence.

Question 23

Community orders for adults:

Answer 23

In CJA 2003 there is an order for offenders 16 + which judges can use to combine a nº of requirements such as unpaid work-alcohol treatment or drug rehabilitation.

Much crime linked to the idrug and alcohol abuse and the idea is to tackle the causes of crime, and hopefully prevent further offences.

Question 24

Unpaid work requirements (community orders):

Answer 24

Between 40 and 300h on a project organised by the probation service (usually 8h sessions at weekends)

Question 25

Prohibited activity requirements (community orders):

Answer 25

D often forbidden to go into a certain area where they have cause trouble.

Question 26

Curfew requirement (community orders):

Answer 26

Between 2 and 16h in any period of the day at a fixed address.

Can last up to 6 months and be reinforced by electronic tagging.

Question 27

Supervision requirement (community orders):

Answer 27

D under supervision of a probation officer for up to 3 years.

Question 28

Fines:

Answer 28

Used mainly in the MC

Question 29

Discharges:

Answer 29

Can be:

1. Conditional: Widely used by MC. Court discharges D on the condition that no further offence is committed during a period of up to 3 years.
2. Absolute: No penalty is imposed (used when person is technically guilty but morally blameless).

Question 30

Other powers of the court when sentencing adults:

Answer 30

Include:
- disqualification from driving for a certain length of time
- compensation order (to victim)
forfeiture order (certain properties taken- ex: spray paint)

Question 31

What is victim surcharge?

Answer 31

Each crime has a surcharge which must be paid

Amount depends on sentence and age of offender

Revenue raised used to fund victim services through the Victim and Witness General Fund

Question 32

What factors do courts consider when sentencing?

Answer 32

1. The offence
2. Sentencing guidelines
3. Offender’s background

Question 33

What are the aggravating factors of an offence?

Answer 33

CJA 2003 gives factors that make the offence + serious:

1. Previous convictions for offences of similar nature
2. Fact that D was on bail when offence was committed
3. Racial or religious hostility involved
4. Hostility to disability or sexual orientation

As well as these factors, other factors are regarded as aggravating features for specific offences. For example, for assault, these factors include:

 - offender being part of a group (ringleader)
 - particularly vulnerable victim (child-elderly)
 - victim serving the public (police, fire, ambulance)
 - premeditation evident prior to assault

Where there are aggravating factors court will issue a more severe sentence

Guidelines issued by the Sentencing Council, who give starting points for offences and a sentencing range.

Question 34

What are the mitigating factors of an offence?

Answer 34

if offender cooperates with police (ex: helping identify others involved) then the court might give a lighter sentence

Other factors include:

  - mental illness
  - physical illness
  - no previous convictions
  - evidence of genuine remorse

Question 35

What does it mean when a sentence is reduced for a guilty plea?

Answer 35

There will be a reduction for a guilty plea, especially where D has made it early in the proceeding

Stage in Proceedings:

 - 1st opportunity: 1/3 of sentence
 - After trial is set: 1/4 of sentence
 - Door of court/ after trial has started: up to 1/10
 - After: no reduction

Only exception is where the evidence is overwhelming and D’s guilt is clear

In these circumstances even if D pleads guilty at the 1st opportunity judge only needs to give a 20% discount.

Question 36

Background of the offender:

Answer 36

Previous convictions:

 - Where D has one for = or similar offence, they are likely to receive a heavier sentence.
 - A D with no previous convictions is usually treated more leniently

Reports:

 - Courts will often have a report prepared by the probation service on the offender and their background
 - If D is ill court may also ask for a medical report.