C15: Sentencing Flashcards
When can Magistrates’ sentence more than 6 months?
If there are two or more either-way offences.
Which offences can the Magistrates’ Court submit to the Crown court for sentencing?
Only either-way offences
What is the heirarchy to the sentence types?
Custody
Community sentence
Fine
Conditional discharge
Absolute discharge
What is it called when a defendant only pleads guilty to part of the prosecution case?
Newton hearings
What is an absolute discharge?
When the court doesn’t punish the offender at all because there is no real moral blame on the defendant, e.g. driving offences of strict liability as an accident.
What is a conditional discharge?
When the court doesn’t punish an offender immediately, but leaves the possibility of punishment open for a set period of time. If the offender does not re-offend during the period, the the conditional discharge ends and there is no punishment.
Which act is used for sentences?
Sentencing Act 2020
Where do magistrates look for guidance on fines?
Magistrates’ Court Sentencing Guidelines
When giving a fine, what do the magistrates consider?
- Whether the offence means a fine is appropriate
- Considering aggravating and mitigating factors, what level of fine is appropriate
What is the name of the form where financial circumstances are considered for fines?
MC100
When is the MC100 filled out?
On the day of the first hearing.
If there is compensation and a fine to pay, which takes precedence?
Compensation.
What are the 5 levels of fines?
Level 1: £200
Level 2: £500
Level 3: £1,000
Level 4: £2,500
Level 5 or either-way offence:
Unlimited
What is a community order?
Offender serves their punishment in the community, e.g. unpaid work, rehab
What are the types 7 of community order?
- Unpaid work
- Rehab
- Prohibited activity
- Curfew
- Mental health treatment
- Drug/Alcohol treatment
- Alcohol abstinence/monitoring
What will the court need before imposing a community order?
The pre-sentence report
What is the threshold test for community orders?
If the offence was SERIOUS ENOUGH to warrant making an order.
What age do you have to be to get a prison sentence?
18 years old, but 21 years and under go to detention in a young offenders institution rather than adult prisons.
What is the custody threshold test?
If the offence is SO SERIOUS that neither a fine or a community sentence can be justified.
What are the options when giving a custody sentence?
Has the custody threshold been passed?
Is it unavoidable that a custodial sentence be imposed?
Can the sentence be suspended?
What will the court take into account when imposing a custody sentence?
- presence of aggravating and mitigating factors
- extent of defendant’s culpability
- sentencing guidelines
When there is no statutory limit on the length of a sentence for an imprisonable offence, what does SA 2020 impose?
2 years max
How long is the period of suspension in a suspended sentence?
From 6 months and 2 years. Offenders may need to take part in community work.
How can a defendant argue with a road traffic offence disqualifying them from driving if it is essential they drive?
They can argue there are ‘special reasons’ for not disqualifying them. These must apply to the offence, not the state of the defendant’s life.
How many points mean someone will be disqualified from driving?
12 penalty points
What is a totter?
Someone who has had enough points to be disqualified. They will be disqualified for at least 6 months and then will come back with a clean licence.
How can one argue disqualification under the totting-up procedure?
Mitigating circumstances, relevant to the offence (trivial?) and their own circumstances in life (can’t do job without driving).
Which act created the Sentencing Council?
Coroners and Justice Act 2009
What is the Sentencing Council?
An independent organisation which replaced the Sentencing Guidelines Council as the authority on sentencing guidelines.
Are there a set of guidelines for both Magistrates’ and Crown Court?
No, there are two separate ones for each court.
Which take precedence, guidelines from Sentencing Council or Court of Appeal guidelines?
Sentencing Council guidelines - the Court of Appeal are to be used when there are no other guidelines to use.
When can the sentencing guidelines not be used?
When it is not in the interests of justice to do so
How do you determine the offence category?
Via culpability and harm.
What are the 3 steps to sentencing?
- Determine offence category by their culpability and harm caused.
- Use offence specific guidelines to find starting point and range for offence
- Consider aggravating and mitigating factors (and personal offender mitigation) to move the punishment either up or down in the range.
How do you determine the offence category with culpability?
Measure whether there is high, medium or low culpability through:
- INTENTION to cause harm
- RECKLESSNESS to whether harm is caused
- had KNOWLEDGE of the risks
- guilty of NEGLIGENCE
How do you determine the offence category with harm?
After culpability, the court must decide which of the 3 types of harm there have been:
- Individual victims
- To the community
- Other types of harm
Or whether there was a likelihood of harm.
Which is more important, culpability or harm?
Culpability is the initial factor, but harm must ALWAYS be judged in light of culpability.
What are some statutory aggravating factors?
- Previous convictions (s65 SA 2020)
- On bail at time of offence (s64 SA 2020)
- Racially/religiously motivated (s66 SA 2020)
What are some other aggravating factors?
- Planning the offence
- Group/Gang offences
- Profiting from offence
- Conceal/dispose evidence
- Under influence of drink/drugs
- Abuse of power/position
- Location/time of day of offence
Is lack of remorse an aggravating factor?
No, it is not.
Is showing remorse a mitigating factor?
Yes, it is. Not showing it isn’t an aggravating factor though.
What are some general mitigating factors?
- more provocation than normal
- mental illness/disability
- youth/age
- playing a minor role
Or also:
- unjustifiable delay between offence and sentence
What is the max reduction in sentence for an early guilty plea?
1/3rd of sentence
When is the earliest an offender can submit a guilty plea to get the reduction on sentence, for all 3 types of offence.
For summary-only or either-way offences: first appearance before a Magistrates’ Court
For indictable-only offences: PTPH before the Crown Court (although they can indicate a guilty plea at the first appearance Magistrates’ Court so they can get full credit and sentenced in the PTPH)
Which section of the SA 2020 deals with early guilty pleas?
s73 SA 2020
When are victim personal statements read out?
After conviction, before sentence, along with previous convictions, compensation and plea in mitigation.
What is a plea in mitigation?
It is when the defence tries to persuade the court that the offender should be dealt with as leniently as possible.
What is the ‘slip rule’?
When a judge can change their mind after sentence, but can only be used for legal error or misapplying the sentencing guidelines.
What is a pre-sentence report?
It gives details about
- the offender’s background,
- family circumstances,
- events around the offence,
- offender’s attitude to the proceedings
- likelihood of reoffending
Who carries out the pre-sentence report?
National Probation Service
What happens at a Newton hearing?
There is dispute about the facts of the offence and the dispute would materially affect the sentence.
In either court, the judge alone sits and hears witnesses/evidence from both sides.
What if at a Newton hearing the prosecution case is made out?
The defendant may lost all or some credit for pleading guilty.
What if at a Newton hearing, the prosecution case is not made out?
They go forward with sentence.
What does it mean for offences to be ‘TIC’d’?
Taken into consideration, usually when offenders is not convicted of these offences but admits to them in court and wants them to be taken into consideration at sentence.
Can the court defer sentencing?
Yes, in order to assess the offender’s behaviour after conviction, e.g. drug or alcohol rehabilitation.
What is the max period to defer sentencing?
6 months.
When is an offender seen asa ‘dangerous’?
When they pose A SIGNIFICANT RISK to member of the public of SERIOUS HARM.
When will life sentences be imposed?
When the offender:
- has been convicted of murder
- is assessed as dangerous
- has been convicted of a serious offence that carries a life sentence
- the offence is so serious that it justifies imposing a life sentence.
What is the difference between a normal life sentence and a whole life term?
Whole life term: imprisonment until the offender dies
Normal life sentence: a minimum time served in prison and released after that when they are no longer a threat to the public. On licence for rest of life.
What are compensation orders limited to in Magistrates’ Court for under 18s?
£5,000
Do compensation orders or prosecution costs take precedence?
Compensation
What is the minimum period of notification for the Sex Offenders Register?
5 years (2 years for a caution)
