CLP 5 Sentencing Flashcards
What must the courts have regard to when considering sentencing?
(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.
When considering what the courts have regard to when considering sentencing, do any factors have more importance?
No they have equal weight, but in particular cases some factors may be more important than others
When considering the seriousness of an offence, what aspects do the courts consider?
Culpability
Harm
Aggregating factors
Can defendants be sentenced in the crown court for summary only offences?
No
Where can a defendant be sentenced for an either way case, if they please guilty in the magistrates court?
They can be sentenced in the magistrates’ court or they could be sent to the Crown Court for sentence
Where can a defendant be sentenced for an either way case, if they plead one way or another in the crown court?
They must be sentenced in the Crown Court, they cannot be sent back to the magistrates’ court for sentence
Where can a defendant be sentenced for an either way case, if they please NOT-guilty in the magistrates court and the case stays in the magistrates court?
They can be sentenced in the magistrates’ court or they could be sent to the Crown Court for sentence
Where will a defendant be sentenced for a indictable only offence?
Crown Court
When are Newton Hearings heard?
When the defendant please guilty but disputes the facts of the offence (i.e. they did less than they are being accused of)
What is the first step towards a Newton Hearing
The defence will draft a ‘basis of plea’ and pass to prosecution for their agreement
What if the prosecution do not agree the defendant’s ‘basis of plea’?
- If the basis of please is not absurd and would affect the sentence, a Newton hearing will be held.
- Otherwise sentence as normal
What if the prosecution agree the defendant’s ‘basis of plea’
the court will have to consider if they are happy with the basis. If not, they will move to a Newton hearing
What happens at a Newton hearing?
The prosecution makes an opening speech and calls evidence in the usual way and their witnesses can be cross-examined by the defence. The defendant is able to give evidence and call witnesses if they so wish. Both parties are entitled to address the Judge by way of a closing speech.
How is a Newton hearing decided?
If the prosecution can’t prove their case beyond reasonable doubt, the defendant is sentenced on their version of the facts.
If the prosecution do prove their case, the defendant loses some credit for the guilty plea (normally halved, possibly more if witnesses are called).
How does sentencing work if there is more than one offence?
The court will consider the totality of the sentence.
If offences are related, they will normally run concurrently
If offences aren’t related they will normally run consecutively.
In what circumstances can a defendant ask for an indication of sentence in the magistrate’s court?
- the offence is either-way and Magistrates have accepted jurisdiction at the allocation stage.
- D can ask for an indication
- Magistrates can only indicate custodial or non-custodial
- Only binding if defendant pleads guilty
When can a defendant ask for an indication of sentence in the Crown Court (Goodyear indication)?
- D can ask at anytime before jury return their verdict
before the indication is given:
- D must accept the prosecution facts or have a written basis of plea agreed by the parties and the court.
- whether to give an indication is discretionary
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’
The court must not make a community order unless…
(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.
When can a court not follow sentencing guidelines?
the court is satisfied that it would be contrary to the interests of justice to do so
What happens at a sentencing hearing?
Prosecution open facts, make submissions & applications
Then
Defence Mitigate
Then
Judge passes sentence
At what point in proceedings can pre-sentence reports be requested?
Pre sentence reports can be ordered at the Plea and Trial Preparation Hearing or even at the time of sending.
In what circumstances is a pre-sentence report required?
A court must obtain a pre-sentence report before passing a custodial or community sentence, unless it considers it unnecessary to do so
Probation input is needed before a community order can be imposed
the court is contemplating a sentence pursuant to the Mental Health Act 1983 what does it require?
It must receive evidence from two medical practitioners stating that in their opinion the defendant is suffering from a mental disorder.
What is the threshold for imposing a community order?
The court must not make a community order unless it is of the opinion that the offence, or combination of the offence and one or more offences associated with it was serious enough to warrant the making of such an order.
What are the reductions for a guilty plea?
Guilty plea at first stage of proceedings – max 1/3
Guilty plea after the first stage of proceedings – max ¼
Guilty plea on the day of trial – sliding scale with max 1/10
What is required of the offence in order for a community order to be given?
- The offender must be over 18 and the offence must be punishable with imprisonment.
What is the maximum length of a community order?
3 years
Where a defendant completes their order within the time period specified, they or the Probation Service may apply for the order to be discharged.
What are the restrictions on a curfew requirement?
2-16 hours in any 24 hours; max term 12 months
What are the restrictions on a Foreign travel prohibition requirement
Not to exceed 12 months
What are the restrictions on a Not to exceed 12 months
Maximum of 120 days
What are the restrictions on a Attendance Centre requirement
For defendants 18–24 only
What are the initial consequences of a breach of community order?
If an offender fails without reasonable excuse;
- they must be warned that their failure is unacceptable.
- If they fail again, breach proceedings must be instituted against the offender.
What happens in court if proceedings are brought against an offender for breach of a community order?
brought back to court and have the breach put to them.
They can either:
- admit or deny the breach;
- if they choose the latter, the court will hold a trial as to whether there was a failure without reasonable excuse.
What happens if an offender is found to have breached community order?
By amending the order to make it more onerous.
By fining the offender up to £2,500.
By revoking the Community Order and re-sentencing the offender.
The court is able to extend (once only) the period of the Community Order by up to six months beyond the usual three-year limit if necessary.
What happens if an offender is found to have breached community order and the court re-sentences the offender?
Can impose a custodial sentence not exceeding six months, even in respect of an offence which was not an offence punishable with imprisonment.
What is the threshold for a custodial sentence?
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.
How long can magistrates make a custodial sentence?
6 months for a summary only offence; or
6 months for one either way offence
12 months for a two or more either way offence.
What reduction is there for time served remanded in custody?
That period is automatically counted towards their sentence.
What reduction is there for time served on bail and what are the conditions?
In addition, if a defendant has been on bail
- with a curfew condition,
- for 9 hours or more
- which was electronically monitored,
they are entitled to credit towards their sentence. This is not automatic - each day n bail counts as half a day
How long can the magistrates court suspend a sentence for?
A magistrates’ court may suspend any determinate custodial sentence of between 14 days and 6 months
How long can the crown court suspend a sentence for?
The Crown Court may suspend any determinate custodial sentence of between 14 days and 2 years.
What happens if a defendant breaks the terms of their suspended sentence?
The defendant must be warned on their first breach and if they commit another breach within 12 months of a warning, breach proceedings will then be instituted.
What is the minimum sentence for a third Class A drug trafficking offence?
7 years’ imprisonment (if pleads guilt can reduce to 80%)
What is the minimum sentence for a third domestic burglary
3 years
What is the minimum sentence for certain firearms offences
5 years
What is the minimum sentence for a second offence of possessing a weapon
6 months
What is the minimum sentence for threatening with a weapon.
6 months
When can the court deviate from sentencing guidelines?
When it is in the interests of justice to do so.
If a sentence is suspended, what is the Operational period
The period in which if the offender offends the suspended sentence take effect
How long is the Operational period
A minimum of six months but less than two years
If a sentence is suspended, what is a supervision period?
If a community order is impsed the court MUST have a supervision period. The period after the sentence when the offender.
It must start on the day the order is made last at least 6 months but last no longer than two years
What is the maximum sentence that can be suspended?
2 years
When must a prisoner on an Extended determinate sentence be able to apply for parole?
2/3 point of the custodial term (they must be released at the end of the custodial period).
What’s the supervision period and operational provision
Supervision period - probation
Operational period - don’t be naughty
