Crim PR Flashcards
What constitutes as a youth in criminal litigation?
All offenders who are aged 17 and under
What is the aim of the youth justice system?
1) To prevent children and young people from offending s.37 Crime and Disorder Act 1998
2) To have regard to the welfare if the children or young person s. 44 Children and Young Persons Act 1933
Can a child under the age of 10 be guilty of an offence?
No
It is conclusively presumed that no child under the age of 10 can be guilty of an offence
What is the term used to refer to those under 18 who pass through the criminal justice system?
Juvenile
What is the term used to refer to those 18 who pass through the criminal justice system?
Adult
What is the term used to refer to those under 14 who pass through the criminal justice system?
Child
The Children and Young Persons Act
What is the term used to refer to those between 14 and 17 who pass through the criminal justice system?
Young Person
The Children and Young Persons Act
How are most youths tried and sentenced?
- Most youths will be tried and sentenced in the youth court summarily.
What does the term PYO (Persistent Young Offender) mean?
(No statutory definition)
BUT
A young person is likely to be categorised as a PYO if they have been convicted of or made subject to pre-conduct disposal that involve admission or finding of guilt, in relation to impressionable offence on at least 3 occasions in the past 12 months.
What does the term adult mean in the criminal justice system?
Aged 18 or over.
With reference to sentence procedure ‘adult’ sometimes means a person aged 21 or over, as that is the age an offender becomes liable to imprisonment rather than detention in a Young Offender Institution
What does the term adult mean in sentencing procedures?
Aged 21 or over
With reference to sentence procedure ‘adult’ sometimes means a person aged 21 or over, as that is the age an offender becomes liable to imprisonment rather than detention in a Young Offender Institution
What does the term child mean in the criminal justice system?
Person under the age 14 years old
What does the term young person mean in the criminal justice system?
A person aged between 14 and 17 (inclusive)
What is the presumption for a youth in the criminal justice system?
There is a presumption that youths will be dealt with by the youth court for nearly all offence, even those classed as indictable only for adults.
Which types of judges are in a youth court?
1) District judge sitting alone
or
2) Not more than 3 magistrates
*Both types of judges are required to undergo specialist training to sit in the youth court
How can a District judge or magistrate sit in a youth court?
By undergoing specialist training to sit in the youth court
Are there any reporting restrictions in the youth court?
Yes
Reporting restrictions apply automatically to those who appear in the youth court. They can be lifted although this is rare, especially before conviction
Can reporting restriction be lifted in the youth court?
Yes
Although this is rare
Are there any reporting restrictions in an adult magistrates’ court and Crown Court?
They are discretionary
Is a youth court a public court?
No
Is an adult magistrates’ court a public court?
Yes
Is a Crown Court (not sitting in chambers) a public court?
Yes
Is a Crown Court (sitting in chambers) a public court?
No
Who can be present in a youth court?
1) Members and officers/ officials of the court
2) Parties to the case before the court
3) Witnesses and other persons directly concerned in the case
4) Bona fide representative of newspaper or news agencies (BUT note reporting restrictions
5) Such other persons as the court may specially authorise to be present
Is the public excluded from the adult magistrates court when a youth is appearing there as a defendant?
No
unless they are sitting in chambers
Is the public excluded from the adult Crown Court when a youth is appearing there as a defendant?
No
unless they are sitting in chambers
Is the public excluded from the adult magistrates court when a youth is appearing there as a witness?
No
Is the public excluded from the adult Crown Court when a youth is appearing there as a witness?
No
Is the public excluded from the adult Crown Court sitting in chambers when a youth is appearing there as a defendant?
Yes
When must an accused be required a parent or guardian to attend with the youth at all stages of the proceedings?
Under 16
(Unless and to the extent that is court is satisfied that it would be unreasonable to require such attendance, having regard to the circumstances of the case.)
- If the accused is aged 16 or 17 the court may require a parent or guardian to attend. ‘Guardian’ is defined as anyone who ‘has for the time being the care of the child or young person’ (s.107 CYPA 1933). ‘Parent’ includes an adoptive parent.
- If the youth is under the care of the local authority their representative must (or may) attend court instead of, or sometimes in addition to, the parent.
How is the youth court more informal than adult courts?
1) lawyer and witnesses remain seated
2) Lawyers are not robed
3) The youth sits in a chair in the dock and usually their parent or guardian sits next to the youth and lawyers may sit next to their client
4) Rather than communicating via the solicitor, magistrates prefer to talk directly with the defendants and their parents
5) Justices who sit on youth court benches are specially trained
6) The youth and youth witness are addressed by their first names
7) If the youth or youth witness needs to take an oath this will be ‘to promise’ to tell the truth, as opposed ‘to swear’ as in adult magistrates court
8) language used differently - eg: ‘finding of guilt’ is a conviction and ‘order made on a finding of guilt’ is a sentence
Different terms are used to those who pass through the criminal justice system, what determines which term will be used?
Age
In what circumstances would the court require to remove the attendance of a parent or guardian, if the accused is under 16?
Unless and to the extent that is court is satisfied that it would be reasonable to require such attendance, having regard to the circumstances of the case.
When may an accused be required a parent or guardian to attend with the youth at all stages of the proceedings?
If the accused is aged 16 or 17.
Does an adoptive parent constitute as a parent in the criminal justice system?
Yes
What is the definition of a guardian?
Anyone who has for the time being care of the child or young person
When can a local authority be present in the youth court?
If the youth is under the care of the local authority their representative must (or may) attend court instead of, or sometimes in addition to, the parent.
How formal is a youth court formal proceedings
Proceedings are more informal than the adult magistrates and Crown Court.
Different terms are used to those who pass through the criminal justice system, what determines which term will be used?
Age
How are juvenile treated in the police station?
As a vulnerable suspect
What protection is provided for juveniles at a police station?
Same protection under PACE as adults
BUT
With additional safeguards (Appropriate Adults)
What is the meaning of an Appropriate Adult?
An Appropriate Adult is someone who attends the police station to look after the welfare of the suspect.
Is an Appropriate exclusive to juveniles?
No
Anyone that is considered a vulnerable suspect.
When will an individual be treated as a juvenile?
‘Anyone who appears to be under 18, in the absence of clear evidence that they are older, be treated as a juvenile.’
What does necessity for ‘clear evidence’ that a detainee is 18 or older mean?
That were there is any doubt, a precautionary approach must be adopted by the custody officer and the police must treat the detainee as a juvenile, any disputes as to age will be for a court to determine if the suspect is charged with an offence.
Who should be informed of the juvenile’s arrest?
- The person responsible for the juvenile’s welfare must be informed as soon as practicable that the juvenile has been arrested, why he has been arrested and where he is being detained.
- The AA, who may or may not be the same person who has responsibility for the welfare of the child, must also be contacted. The AA must be informed of the grounds for the juvenile’s detention and the whereabouts of the juvenile and must be asked to attend the police station.
When should the person responsible for the juvenile’s welfare be informed of the juvenile’s arrest?
must be informed as soon as practicable
What should the person responsible for the juvenile’s welfare be informed of when contacted by the police station?
1) Juvenile has been arrested
2) Why the juvenile has been arrested
and
3) Where the juvenile is being detained
What should the Appropriate Adult be informed of when contacted by the police station?
1) Grounds for the juvenile’s detention
2) Whereabouts of the Juvenile
and
3) Asked to attend the police station
Who can act as an Appropriate Adult for a juvenile?
1) Parent, guardian or anyone else with parental responsibility
2) a social worker
or
3) any other responsible adult who is not a police officer
must be independent of the police as their role is to safeguard the person’s rights and entitlements.
Who can NOT act as an Appropriate Adult for a juvenile?
Anyone who is:
1) suspected of the involvement of the offence
2) The victim
3) A witness
4) Involved in the investigation
5) Have received admissions prior to attending to act as the Appropriate Adult
6) A solicitor or independent custody visitor who is present at the police station and acting that capacity
7) An estranged parent if the juvenile specifically objects to it
How can the Youth Offending Teams help juvenile in a police station?
YOT may have individuals available to as an Appropriate Adult, if necessary or there may be groups of trained volunteers available to carry out the role.
If a juvenile admits, or in the presence of a, an offence to a social worker or a member of a youth offending team other than during the time that person is acting as the juvenile’s appropriate adult, can they still continue to act as an appropriate adult?
No
AND
Another appropriate adult should be appointed in the interest of justice
If a venerable persons prefers a relative to better qualified stranger, who should be the appropriate adult?
The relative, if practicable
Their wishes should, if practicable, be respected.
What is the role of an Appropriate Adult?
- Must have an appropriate adult in the police station if you under 18 and in court if you are between 16 and 17 you don’t need to have a parent with you
- It is important that the AA understands their role in the interview.
- The AA is not expected to simply act as an observer.
1) Advise the juvenile being questioned
2) observe whether the interview is being conducted properly and fairly
and
3) Facilitate communication with the juvenile being interviewed
Is the Appropriate Adult role a passive role?
No
What is the purpose of the Appropriate Adult’s presence?
The AA’s presence is to help the juvenile cope with the demands of the custody and questioning and to appreciate the seriousness of the situation
Is an appropriate adult subject to legal privilege?
No
*The detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if they want.
Can the appropriate adult instruct a solicitor on behalf of the juvenile?
Yes
Can the appropriate adult consult the custody record?
Yes
AA has the right to consult the custody record
Can the appropriate adult consult the juvenile in private at any time?
Yes
The AA has the right to consult the juvenile in private at any time
Is there a duty of confidentiality owed by the appropriate adult?
No
There is no duty of confidentiality owed by an AA
When should the appropriate adult be present?
AA should be present when the juvenile is:
1) being read their rights
2) being strip searched or subjected to an intimate search
3) being interviewed
4) attending identification procedures
or
5) being charged
Can a juvenile be interviewed or asked to sign anything in the absence of an appropriate adult?
No
Unless
1) authorised by a superintendent or above
and
2) only if they believe delay will have certain consequences and is satisfied that the interview would not significantly harm the juvenile’s physical or mental state.
If a juvenile is cautioned in the absence of an appropriate adult, should the caution be repeated in the presence of an appropriate adult?
Yes
If a juvenile is cautioned in the absence of an appropriate adult, the caution MUST be repeated in the AA’s presence
What is required for a juvenile to participate in any ID procedure?
The consent of the juvenile’ parent/guardian
+
Juvenile’s consent (unless under 14)
If the juvenile is under 14, can the consent of their parent’s alone for the participation in any ID procedure be sufficient?
Yes
If the juvenile is under 14, the consent of their parent alone is sufficient
What are the options after interview for police and prosecution when dealing with any offence committed by a child or young person?
1) No further action
2) Community resolution
3) youth caution
4) youth conditional caution
5) charge
What are the additional grounds allowing the youth to be detained?
In their ‘own interests’
If a youth is detained for court, where should they be place?
In the local authority accommodation
When should a youth not be placed in local authority accommodation, after being detained for court?
Unless:
1) It is impracticable for the custody officer to do so i.e physically impossible
or
2) in the case of a youth aged 12-17, no secure accommodation is available and other local authority accommodation would not be adequate to protect the public from serious harm
Can the juvenile’s behaviour provide grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority?
No
Can the juvenile’s nature of the offence provide grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority?
No
Are the local authority under a duty to provide secure accommodation whenever the request is received under s.38 (6) PACE?
No
The local authority are NOT under a duty to provide secure accommodation whenever the request is received under s.38 (6) PACE
Can the juvenile’s arrest is pursuant to an alleged breach of bail provide grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority?
Yes
The youth can be detained in police custody
Can the juvenile’s breach of remand conditions provide grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority?
Yes
The youth can be detained in police custody
What is a youth caution?
A formal out-of-court disposal, without the need to prosecute them as set out in the crime and disorder act
it is the final step before prosecution.
Who must the police refer a youth who has received a youth caution to?
The Youth Offending Team
What is the purpose of a youth caution?
To reduce the risk of further offending by the youth and serve as a proportionate response to the crime committed.
When can a youth caution be provided?
Youth cautions can be used for any offence that the statutory criteria are satisfied:
1) the police are satisfied that there is sufficient evidence to charge the youth with an offence
2) the youth admits the offence to the police
3) the police do not consider that the youth should be prosecuted or given a youth conditional caution for the offence.
Is there a statutory restriction on the number of youth caution that a youth can receive?
No
Can a youth receive a youth caution even if they have previous convictions, reprimands, warnings, youth cautions and youth condition cautions?
Yes
Can the police issue a youth caution for an offence that indictable only in the case of an adult?
No
Needs the authority of the CPS
What must the courts have regarded when sentencing offenders under 18?
Overarching guideline - sentencing children and young people
In determining the sentence for offenders under 18, what are the overarching guidelines’ key elements to consider?
1) The principle aim of the youth justice system
2) the welfare of the child or young adult
3) the age of the child or young person (chronological, developmental, and emotional) which requires a different approach to that which would be adopted in relation to the age of an adult
4) the seriousness of the offence which is determined in the same way as for adults by assessing the culpability and harm
5) the likelihood of further offences being committed
and
6) the extent of harm likely to result from those further offences
What can the court order, in the interest of preventing the commission of further offence for a young power aged 16 or 17?
There is a discretionary power to make a
1) a parental bind over
or
2) impose a parenting order
What age does the offender need to be for a court to make a parental bind over or impose a parenting order?
16 or 17
When will the court apply their discretionary power to make a parental bind over or impose a parenting order?
if it would be desirable in the interest of preventing the commission of further offences
+
the offender is 16 or 17
What is the consequence of a breach of a parental bind over or a parenting order by the parent?
Punishable by fine
If a parent breach a parental bind over or a parenting order, who will conduct the prosecution and where would it be held?
The CPS will conduct the prosecution in the magistrates court
When is the relevant age for the purpose of sentence ?
Is the age of the offender at the date of conviction
What will constitute as a persistent offender for children and young people?
1) if there have been 3 finding of guilt in the past 12 months for imprisonable offences of a comparable nature then the court could certainly justify classing the child or young person as a persistent offender
or
2) a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be persistent offender even if no previous convictions
Is there a statutory definition for a persistent offender?
No
If a series of robberies committed over a period of 2 days, but has no previous conviction. Can the offender be deemed a persistent offender?
Yes
a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be persistent offender even if no previous convictions
If a youth aged 14 appeared for sentence for offences of burglary and aggravated vehicle taking committed on 4 different days over 2 month period. Can the youth be sentenced as a persistent offender?
Yes
What is the consequences of deeming a child or young person as a persistent offender?
Some sentence can only be imposed on children and young people if they are deemed a persistent offender.
What are the powers of committal to the Crown Court for sentence which apply to youth?
3 powers:
1) Youth is convicted of a ‘grave crime’ offence under s.249 and the court considers a Crown Court should have power to deal with the offender by imposing a sentence of detention under s.250 SA (i.e. a sentence in excess of 2 years’ detention is required)
2) Committal for sentence of dangerous young offenders
3) Committal for sentence for related offences
What is the principle aims of the youth justice system?
To prevent re-offending by children and young people
What are particular sentences which only apply to youth?
1) Detention and Training orders
2) Referral orders
and
3) Youth rehabilitation orders
What are the non-custodial sentences available for youths?
1) Youth Rehabilitation order
2) Referral orders
3) Reparation orders
and
4) Orders against parents (binding over/parenting order)
What is the statutory minimum of youth rehabilitation order?
No statutory minimum
What is the statutory maximum for youth rehabilitation order?
36 months
What is the statutory minimum of referral order?
3 months
What is the statutory maximum of referral order?
12 months
When can a youth rehabilitation order be passed?
The court must be satisfied that the offence is ‘serious enough’ to warrant it .
(Unless the court imposes a intensive supervision and surveillance requirement or a fostering requirement =Custodial threshold)
*Although the offence does not have to be imprisonable.
Does the offence have to be imprisonable for a youth rehabilitation order?
No
The court must be satisfied that the offence is ‘serious enough’ to warrant it .
*Although the offence does not have to be imprisonable.
How many times can a youth rehabilitation order be used?
YROs can be used a number of times
What are the possible requirements in a youth rehabilitation order ?
1) activity requirement;
2) supervision requirement;
3) unpaid work requirement
4) programme requirement;
5) attendance centre requirement;
6) prohibited activity requirement;
7) curfew requirement;
8) exclusion requirement;
9) electronic monitoring requirement;
10) residence requirement;
11) local authority residence requirement;
12) fostering requirement;
13) mental health treatment requirement;
14) drug treatment requirement;
15) intoxicating substance requirement;
16) education requirement;
and
17) intensive supervision and surveillance requirement.
What are the requirements that are only available for young people aged 16 or 17 years old on the date of conviction?
1) Unpaid work requirement
2) residence requirement
When can an unpaid work requirement be imposed?
16 or 17 years old on the date of conviction
When can an residence requirement be imposed?
16 or 17 years old on the date of conviction
What are the requirements that can only be imposed if the offence is imprisonable one and the custody threshold had been passed?
1) Intensive supervision and surveillance requirement
2) fostering requirement
*Custody threshold: ‘is so serious…’
When can a intensive supervision and surveillance requirement be imposed?
1) Offence is imprisonable
2) the custody threshold has been passed = is so serious…
3) 15 and over (under 15 they must be deemed a persistent offender)
What age can a intensive supervision and surveillance requirement be imposed?
15 and over
or
Under 15 BUT MUST be deemed a persistent offender
When can a fostering requirement be imposed?
1) Offence is imprisonable
2)The custody threshold has been passed = is so serious
3) 15 and over (under 15 they must be deemed a persistent offender)
What age can a fostering requirement be imposed?
15 and over
or
Under 15 BUT MUST be deemed a persistent offender
What is a referral order?
A referral order requires an offender to attend each of the meeting of a youth offender panel established for the offender by a youth offending team and to comply, for a particular period with a programme of behaviour to be agreed between the offender and the panel (essentially, they form of a contract)
What type of sentence is a youth rehabilitation order regarded as?
a community order (non-custodial)
Unless
court imposes intensive supervision and surveillance requirement or fostering requirement = Custodial sentence
What type of sentence is a referral order regarded as?
Community disposal and fines (non-custodial)
What happens at the end of a referral order?
A referral order is spent when it is discharged, which leaves the youth with a clean slate.
When is a referral order mandatory?
If the compulsory referral order conditions are satisfied:
1) where the young offender has not previously been convicted of an offence
and
2) the young offender pleads guilty to an imprisonable offence and any other offence being delt with by the court at the same time (connected offences)
In what circumstances does a compulsory order do not apply (even though the conditions are met)?
1) If the sentence is fixed by law
or
2) The court propose to impose a:
- Custodial sentence or
- Hospital order or
- Absolute discharge or
- Conditional discharge
What situation is a referral order discretionary?
An offender MAY receive a referral order:
1) On their second (or later) conviction
and/or
2) If the offender pleads guilty to the offence or a connected offence being delt with by the court
*Connected offence can NOT be punishable by imprisonment
In what circumstances can a referral order not be given?
Where:
1) The sentence is fixed by law
or
2) The court feels that an absolute or conditional charge is justified
or
3) The court is proposing to make a hospital order
or
4) The court considers that custody is the only correct disposal
If a young offender breaches a referral order, what is the consequences?
They may be referred back to the youth court.
The youth court may
1) revoke their referral order and deal with the youth in any manner in which he could have been dealt with for the offence
or
2) order the young offender to pay a fine
or
3) extend the length of the contract period.
If a young offender is convicted of another offence while subject to a referral order, what is the consequences?
They may be referred back to the youth court.
The youth court may
1) revoke their referral order and deal with the youth in any manner in which he could have been dealt with for the offence
or
2) order the young offender to pay a fine
or
3) extend the length of the contract period.
If a child or young person is in breach of a Youth Rehabilitation Order, what are the consequences?
The following options are available to the court:
1) Take no action and allow the order to continue in its original form
2) Impose a fine ( up to 2,500) and allow the order to continue in its original form)
3) amend the terms of the order
or
4) revoke the order and resentence the child or young person
What are the custodial sentences available for youths?
A Detention and Training Order - only custoldial sentence availible to the Youth court
When can a Detention and Training order be passed?
where the an offence is ‘so serious that neither a fine alone nor a community sentence can be justified’
+
Child or young person has been convicted of an offence which is punishable by imprisonment in the case of an adult
Should be a last resort
Can a Detention and Training order be imposed on any offender aged 10 or 11?
No
Can a Detention and Training order be imposed on any offender aged 12-14?
No
UNLESS they are a persistent offender
What is the minimum sentence of a Detention and Training Order?
4 months
What is the maximum sentence of a Detention and Training Order?
24 months ( 2 years)
How long can a consecutive Detention and Training Order be imposed for?
up to an aggregate of 24 months (2 years)
What should the court take into account when imposing a detention and training order?
1) Circumstances
2) Age
and
3) Maturity of child or young person
Which court can impose a Detention and Training Order?
Youth and Crown Court
What is a Detention and Training order?
First half of DTO: spent in secure youth detention
Second Half of DTO: in community supervision
For Detention and Training order, who supervise the child or young person in the community?
The supervision is seen by the Youth Offending Teams
Is the court involved in deciding what the supervision must entail in the second half for a Detention and Training Order?
No
The second half is overseen by the Youth Offending Teams
How is the relevant guideline for sentencing decided in Detention and Training order?
When considering the relevant offence guidelines, the court may feel it appropriate to apply a sentence broadly with the region of
- Half to two thirds of the adult sentence to those aged 15 -17
and
- Allow a greater reduction for those aged under 15
What is a Long term detention under s.250 ‘grave crimes’?
Is when a child or young person is found guilty of a grave crime and neither a community or detention training order is suitable
Which court can impose a Long term detention under s.250 SA?
Crown Court
(Cases are sent to trail in Crown Court or committed for sentence only)
(Youth Court can NOT impose a grave crime, bec its more than 2 years)
What is a Dangerous offenders?
A custodial sentence, If a child or young person is found to be dangerous, they can be sentenced to extended detention or detention for life
What is Detention at His Majesty’s pleasure?
A custodial MADATORY sentence for any child or young person found guilty of committing a murder.
Minimum term 12 years
What is the minimum term for detention at his majesty’s pleasure?
12 years
What is Detention in a Young offenders institution?
Custodial sentence, for those aged between 18 -21
What offence can a youth court trial?
Summary trial and indictable only offence
What is the presumption for how the youths offences are delt with in the youth court?
Youths will be delt with summarily even for indictable offences
Where would youths have their first hearing usually?
Before the Youth Court - even if it is an indictable-only offence
When can a youth have their first hearing before the adult magistrates court?
1) Youth is jointly charged with adult
2) The youth is charged with aiding and abetting an adult to commit an offence
3) An adult is charged with and abetting a youth to commit an offence
4) Youth is charged with an offence that arises out of the same circumstances as, or is connected with, an offence that an adult is charged with
What are the requirements, for an offence to be capable of being a grave crime?
1) Is the maximum offence of 14 years of imprisonment?
1 (a): No = cant be a grave crime
1(b): Yes = Requirement 2
2) Youth is likely to get a sentence of more than 2 years?
2 (a): No = can’t be a grave crime
2 (b): Yes = grave crime
Which court can impose an absolute discharge?
1) Youth court
2) Adult magistrates’ court
3) Crown Court
Which court can impose an conditional discharge?
1) Youth court
2) Adult magistrates’ court
3) Crown Court
Which court can impose a unlimited fine?
Crown court
Which court can impose a fine (limited)?
1) Youth Court
2) Adult magistrates’ court
Which court can impose a referral order?
1) Youth Court
2) Adult magistrates’ court
Which court can impose a reparation order?
1) Youth Court
2) Crown Court
Which court can impose a youth rehabilitation order?
1) Youth Court
2) Crown Court
Which court can impose detention and training order?
1) Youth Court
2) Crown Court
Which court can impose a parenting order?
1) Youth Court
2) Adult magistrates’ court
3) Crown Court
Which court can impose a parental bind over?
1) Youth Court
2) Adult magistrates court
Which court can impose a detention for a specified period s.250 sentencing Act 2020?
1) Crown Court
Which court can impose an extended detention for dangerous offenders?
1) Crown Court
Which court can impose a life for dangerous offenders?
2) Crown Court
Which court can impose a detention at his majesty’s pleasure?
1) Crown Court
When can the crown court impose a referral order?
Generally they cant but if :
1) on appeal
or
2) an exception
Parenting Order?
- For any child or young person aged under 16 appearing before court, there is a statutory requirement that parents/guardians attend all stages of proceedings unless deemed unreasonable.
- Additionally, the court has a duty to make a parental bind over or impose a parenting order, if it would be desirable in the interest of preventing the commission of further offences.
Youth rehabilitation order?
- These fall within the community orders band. Before a YRO can be passed the court must be satisfied that the offence is “serious enough” to warrant it although the offence does not have to be imprisonable.
- Courts are able to select from a wide range of sentences and tailor interventions to suit the particular offender. YROs can be used a number of times.
Rough guide for sentencing Detention and Training Order?
- When considering the relevant offence guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15–17 and allow a greater reduction for those aged under 15.
Crown court?
- If the youth is charged with homicide, firearms with mandatory three year minimum sentence, served with a notice in serious fraud or child case or charged with a specified offence and meets the dangerous criteria they will ALWAYS be sent to the Crown Court.
- If the adult is sent to the Crown Court for a trial and the youth is to be tried on the same matter then the magistrates’ court will have to consider whether it is in the interests of justice (IOJ) for the child or young person and the adult to be tried jointly.
When is it in the interests of justice?
whether separate trials will cause injustice to witnesses or to the case as a whole (consideration should be given to the provisions of sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999);
the age of the child or young person; the younger the child or young person, the greater the desirability that the child or young person be tried in the youth court;
the age gap between the child or young person and the adult; a substantial gap in age militates in favour of the child or young person being tried in the youth court;
the lack of maturity of the child or young person;
the** relative culpability** of the child or young person compared with the adult and whether the alleged role played by the child or young person was minor; and/or
the lack of previous findings of guilt on the part of the child or young person.
* The prosecution and defence make representations as to whether it is in the interests of justice to send the youth to the Crown Court or not.
Procedure after allocation for crown court?
- If the court decides that the youth should be tried with the adult, the youth’s case will be sent to the Crown Court for a Plea and Trial Preparation Hearing, alongside the adult.
- Once a youth is lawfully before the Crown Court for trial there is no power to remit the youth back to the youth court for trial even if the adult with whom the youth was sent pleads guilty (R v W (a minor)) v Leeds Crown Court [2012] 1 Cr App R 162). This means that the youth would face trial alone in the Crown Court.
- If the adult and youth have been sent to the Crown Court for trial then it will take place before a judge and jury in the usual way.
- Once the trial has been concluded and the child or young person is found guilty the court must remit the case to the youth court, unless it would be undesirable to do so.
- The only exception to this is where the offence is homicide.
- In considering whether remittal is undesirable a court should balance the need for expertise in the sentencing of children and young people with the benefits of the sentence being imposed by the court which determined guilt given that the judge who heard the trial will reserve sentencing of the adult (if convicted)
Procedure when Youth jointly charged with adult (either way offence not a grave crime)?
- -First appearance: Mags court
- Not a grave crime
- PBV for adult: Court takes a plea from the adult
- If adult pleads not guilty, court makes a decision on ‘adult allocation’
- If court accepts jurisdiction and youth pleads not guilty both will be tried in magistrates’ court.
- If court declines jurisdiction or adult elects, court will apply the ‘interests of justice’ test
- If IOJ test met, youth sent to CC for trial with the adult
- If test not met, youth will be tried in the youth court
- If either adult or youth pleads guilty then each dealt with separately according to usual principles
Youth jointly charged with adult (either way offence, grave crime) procedure?
- Offence IS grave crime
- Take plea for youth.
- If youth pleads not guilty court asks: should a sentence substantially in excess of 2 years be available.
- If ‘two year’ test met, youth sent to CC for trial.
- PBV for adult > if adult pleads not guilty, sent for trial to CC with the youth.
- If ‘two year’ test not met do PBV for adult.
- If adult pleads not guilty and is sent to CC for trial then apply IOJ test. If IOJ test met, youth sent to CC for trial with the adult. If not met remit to youth court for trial.
- If adult pleads not guilty and remains in the Mags Ct for trial then youth remains in Mags C for trial with the adult.
- If adult pleads guilty then each dealt with separately according to usual principles. Youth remitted to youth court for trial
Youth jointly charged with adult (either way offence, grave crime, youth pleads guilty) procedure?
- Offence IS grave crime
- Take plea for youth.
- If youth pleads guilty court asks, ‘should a sentence substantially in excess of two years be available?’
- If ‘two year’ test met, youth committed to CC for sentence
- If ‘two year’ test not met youth sentenced or remitted to youth court for sentence.
- PBV for adult > dealt with accordingly
- Is the adult charged with an EW offence? Deal with youth as follows?
- Does D meeting dangerous criteria – YES – then send to Crown Court – PBV for Adult
- If NO then is it a GRAVE CRIME? – YES – Should sentence of substantially more that 2 years be available? – YES – NG plea send to Crown/G plea commit to Crown for sentence – PBV for adult
- Otherwise on Guilty plea remit to YC for sentence. For NG plea go to PBV for adult. If adult is G then remit to YC for trial/Adult NG then joint trial in MC or is it in IOJ to send to Crown Court with adult.
- Youth jointly charged with adult (indictable only offence)
First appearance: Mags court
* Adult will be sent to Crown Court.
* If youth charged with homicide etc send to Crown Court.
* If youth charged with grave crime and the ‘two year’ test is met then send to Crown Court for trial with adult if NG or commit for sentence if G.
* If not a grave crime or ‘two year’ test not met is the youth pleading G or NG?
* If G then sentence or remit to youth court for sentence.
* If NG then apply IOJ test.
* If IOJ test met, youth sent to CC for trial with the adult
* If test not met, youth will be tried in the youth court
- Is the adult charged with an IO offence? If yes send the adult immediately to Crown Court then deal with youth as follows.
- Meet dangerous criteria – YES – then SEND to Crown
- NO – then is it a grave crime? YES – then will sentence be substantially in excess of 2 years? YES – NG then send to Crown/G then commit to Crown.
- If sentence not in excess of 2 years then if NG plea consider IOJ to send to Crown for trial with adult. Otherwise remit to YC for trial or sentence.
- Youth court procedure?
Generally:
First hearing- takes place before the youth court
Plea- is taken on the first hearing and no plea before venue/ mode of trial procedure takes place
Trial- the presumption is trial will take place in the youth court except in homicide and certain firearm offences
Sentencing- in the youth court.
When does the general youth court procedure not apply?
First hearing- when a youth will have their first hearing before an adult magistrates court (e.g. when jointly charged with an adult)
PBV/ Mode of trial procedure- circumstances when this takes place (e.g. ‘grave crimes’)
Trial- circumstances when a youth must or may be tried in the adult magistrates’ court or the Crown Court
Sentencing- when a youth must or may be committed to the Crown Court for sentence.
A youth will have their first hearing before the adult magistrates’ court in the following circumstances:
The youth is jointly charged with an adult;
The youth is charged with aiding and abetting an adult to commit an offence;
An adult is charged with aiding and abetting a youth to commit an offence;
The youth is charged with an offence that arises out of the same circumstances as, or is connected with, an offence that an adult is charged with.
* Other than where a youth becomes an adult during the course of proceedings (ie after the first hearing) there are no circumstances whereby an adult can appear before the Youth Court.
Pleas in youth court?
- The court must ask the youth to enter a plea on the first occasion. If a request to adjourn the hearing is made and granted the case will be adjourned for the shortest possible time.
- If the youth enters a guilty plea the court should endeavour to pass sentence on the same day but may need to adjourn for the preparation of a pre-sentence report.
- If the youth enters a not guilty plea the parties will be asked to complete a case management form and directions will be made for the future management of the case, just as in the adult magistrates’ court.
- Where will a youth be tried?
- Most youths are tried in the youth court, notwithstanding the seriousness of the offence. This presumption applies even in the case of indictable only offences (s.24 MCA 1980) except homicide and certain firearms offences.
- A youth will only be tried in the adult magistrates’ court where they are jointly charged with an adult.
- A youth has no right of election to the Crown Court when charged with an either-way offence.
- Crown Court trial for youths
- Youth charged with homicide (murder or manslaughter);
- Youth charged with certain firearms offences or offences of minding a weapon under s28(3) VCRA 2006, where, if convicted, the youth would be subject to a mandatory minimum sentence under s.311 Sentencing Act (SA) 2020;
- Youth charged with an offence to which s.249 SA 2020 applies and the youth court has determined that, if convicted, a sentence beyond its powers should be available (thus it is a ‘grave crime’);
- Youth charged with a specified offence under s.306 SA 2020 and it appears to the court that if the youth is found guilty or pleads guilty the criteria for imposing an extended sentence under s.254 SA 2020 will be necessary (‘dangerous offender’);
- Youth jointly charged with an adult who has been sent to the Crown Court and it is in the interests of justice to send the youth to the Crown Court for trial.
- Plea before venue / Mode of trial
- Generally there will be no plea before venue / mode of trial in the youth court. However, it applies in the following circumstances:
Youth charged with an offence capable of being a ‘grave crime’ under s.249 SA 2020;
Youth jointly charged with an adult with an either-way or indictable only offence.
- What are ‘grave crimes’?
Any offence that in the case of an adult carries 14 years or more imprisonment;
* E.g. rape, robbery (maximum sentence is life), residential dwelling burglary (maximum sentence is 14 years)
Offences under ss.3, 13, 25 and 26 of the Sexual Offences Act 2003.
- Grave crimes- plea before venue/ mode of trial
The youth is asked to indicate a plea. If the indication is not guilty the youth court must consider whether, if convicted of the offence, it ‘ought to be possible’ (s.51A(3)(b) CDA 1998) to impose a sentence under s.250 SA 2020. If they consider it should be, then they must send the youth to the Crown Court for trial. In other words they are considering whether their maximum sentencing powers of two years’ detention would be sufficient. The youth’s previous convictions can be taken into account at this stage.
- The procedure for deciding whether s.250 SA 2020 applies can be thought as a two stage test, whether it is a guilty or not guilty indication:
Is it an offence capable of being a grave crime? ie is it one to which s.249 applies? If yes, then:
Is the appropriate sentence one of over two year’s detention? - Where a youth is charged with multiple offences and s.249 SA 2020 applies to one or some of the offences, but not all of them, the court can consider the combined seriousness of all the offences when determining whether s.250 SA 2020 applies.
Where is it empahsised that youths should be tried?
youths, especially those under 15, should be tried in the youth court wherever possible
Crown Court being ‘reserved for the most serious cases’.
- Dangerous offenders
- Section 51A(2) and (3)(d) of the Crime and Disorder Act 1998 provides for youths who are considered dangerous to be sent to the Crown Court. This applies where:
The offence is a specified offence within the meaning of s.306 SA 2020; and
It appears to the court that, if he is found guilty, the criteria for the imposition of a sentence of extended detention under s.254 SA 2020would be met. - If both are met then the youth must be sent directly to the Crown Court for trial. There is no plea before venue or mode of trial procedure.
- Any related offences may also be sent.
- The criteria for imposing a sentence of extended detention for youths under s.254 SA 2020are similar to adults, but not quite the same. They are:
The youth is convicted of a specified offence (as per s.306 SA 2020);
The court considers there is a significant risk of serious harm to the public from the youth committing further specified offences; and
The offence warrants the equivalent determinate sentence of at least four years. - An extended sentence, as in the case of an adult, is made up of an appropriate custodial term plus an extended licence period. Also as in the case of adults, s.308 SA 2020 details the factors to be taken into account by the court when assessing dangerousness.
- The Sentencing Children and Young People: Definitive guideline makes it clear that the power to send youths to the Crown Court for trial under the dangerousness provisions should be rarely used. This is not least because there will often not be sufficient information about the offence in order to be able to make a fully informed decision.
- If jurisdiction is retained and further information comes to light during or after the trial which leads the court to conclude, on conviction, that the youth should be sentenced under the dangerousness provisions, they have the power to commit to the Crown Court for sentence under s.17 SA 2020.
What are the types of sentences?
Custodial and non-custodial sentences
What are the various purposes of sentencing, that the court will have regard to when determining the proportionate sentence to be imposed to cases involving those aged 18 and over (at the date of conviction)?
1) The punishment of offenders
2) The reduction of crime (including its reduction by deterrence)
3) The reform and rehabilitation of offenders
4) The protection of the public and
5) the making of reparation by offenders to persons affected by their offences.
*The purposes are given equal weight though in particular cases some may be more important than others.
How are the court mechanics of how a court sentences an offenders different ?
- The availability of certain sentences &
- The limits to the powers of the Magistrates and Youth courts.
How will a court decide both the type and length of any particular sentence?
By assessing the seriousness of the case before it, by refereeing to the sentencing guidelines.
Can a court commit an adult for sentence to another court with greater sentencing power?
Yes
When can a court commit an adult for sentence to another court with greater sentencing power?
Where necessary and appropriate
If a D pleads guilty to a summary only offence in the magistrates court, can they be sentenced in the magistrate court?
Yes
*D can only be sentenced in the magistrate court
If a D pleads guilty to a summary only offence in the magistrates court, can they be sentenced in the crown court?
No
- Cant be sent to the crown court for sentence
If D pleads not guilty to a summary only offence in the magistrate court and therefore has a trail in the magistrate court. At trail they are found guilty.
Can they be sentenced in the magistrates’ court?
Yes
*Can only be sentenced in the Magistrates’ Court
If D pleads not guilty to a summary only offence in the magistrate court and therefore has a trail in the magistrate court. At trail they are found guilty.
Can they be sentenced in the crown court?
No
*Cant be sent to the Crown Court for sentence
If a D pleads guilty to an either-way offence in the magistrates court, can they be sentenced in the crown court?
Yes, if committed for sentence
If a D pleads guilty to an either-way offence in the magistrates court, can they be sentenced in the magistrates’ court?
Yes, but may commit for sentence to the Crown Court.
If D pleads not guilty to an either offence in the magistrate court and the matter stays in the magistrate court for trail. At trail they are found guilty.
Can they be sentenced in the crown court?
Yes, if committed for sentence.
If D pleads not guilty to an either offence in the magistrate court and the matter stays in the magistrate court for trail. At trail they are found guilty.
Can they be sentenced in the magistrates’ court?
Yes but may commit for sentence to the Crown Court.
If D pleads not guilty to an either offence in the magistrate court. The case is sent to the Crown Court for trail. At trail they are found guilty.
Can they be sentenced in the magistrates’ court?
No. Once a matter has been sent to the Crown Court, it cannot be sent back to the magistrates’ court for sentence.
If D pleads not guilty to an either offence in the magistrate court. The case is sent to the Crown Court for trail. At trail they are found guilty.
Can they be sentenced in the Crown Court?
Yes, D will be sentenced by the Crown Court.
If D is charged with an indictable only offence which is sent to the Crown Court. They plead guilty at their plea and trail preparation hearing in the Crown Court.
Can they be sentenced in the Crown Court?
Yes, D must be sentenced by the Crown Court
If D is charged with an indictable only offence which is sent to the Crown Court. They plead guilty at their plea and trail preparation hearing in the Crown Court.
Can they be sentenced in the magistrate court?
No. Once a matter has been sent to the Crown Court, it cant be sent back to the magistrate court for sentence.
If D is charged with an indictable only offence which is sent to the Crown Court. They plead not guilty at their plea and case management hearing in the Crown Court and are found subsequently guilty at trail.
Can they be sentenced in the magistrate court?
No. Once a matter has been sent to the Crown Court, it cant be sent back to the magistrate court for sentence.
If D is charged with an indictable only offence which is sent to the Crown Court. They plead not guilty at their plea and case management hearing in the Crown Court and are found subsequently guilty at trail.
Can they be sentenced in the Crown Court?
Yes. D must be sentenced by the Crown Court
When does the defence enter a plea but on a written basis?
When D pleads guilty but takes issue with the facts asserted by the prosecution.
What is the procedure, when the defence enter a plea but on a written basis and the prosecution viewed the basis as acceptable?
1) Defence enter a guilty plea but in a written basis, the prosecution would indicate whether they viewed the basis as acceptable. if accepted
2) The court will then proceed to consider whether this basis is an acceptable one and
3) the court will consider whether or not a newton hearing is required.
When is a Newton hearing held?
Where a D 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
How is a Newton hearing heard in the magistrate court?
A Newton hearing is presided over by magistrates or a District Judge much like a regular trail.
How is a Newton hearing heard in the Crown Court?
In the Crown Court it takes place without a jury, and the Crown Court Judge acts as the arbiter of both law and facts.
What is one of the limited number of occasions where a Crown Court Judge acts as the arbiter of both law and facts?
In a Newton hearing in the Crown Court.
What circumstances allow for D to go into trial when D enters a guilty plea?
In a Newton hearing.
Is there a trial if D pleads guilty for a Newton hearing?
Yes
Can a Crown Court Judge act as the arbiter of both law and fact in a Newton hearing?
Yes, there is no jury
Is there a jury in the Crown Court for a Newton hearing?
No
What happens in a Newton hearing?
Prosecution makes an opening speech and calls evidence in the usual way and their witness can be cross-examined by the defence.
D 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.
At the conclusion of the hearing the court must decided whether the prosecution has proved its version of the facts beyond reasonable doubts.
What happens at the conclusion of a Newton hearing?
At the conclusion of the hearing the court must decided whether the prosecution has proved its version of the facts beyond reasonable doubts.
What does the prosecution must prove in a Newton hearing?
To prove their version of facts beyond reasonable doubt.
What is the threshold of proof for the prosecution in a Newton case?
Beyond reasonable doubt
What is the result if prosecution prove their case beyond reasonable doubt in a Newton hearing?
D will be sentenced on the prosecution version if the facts.
+
D will lose some of the credit they receive for pleading guilty = decrease the reduction
What is the result if prosecution failed to prove their case beyond reasonable doubt in a Newton hearing?
D will be sentenced on the defence version of the facts as set out in their basis of plea.
What must the court consider when sentencing for more than one offence?
If the total sentence should be and arrive at one that is just and proportionate, by considering whether
1) Consecutive
Or
2) Concurrent sentences
are more appropriate in the circumstances
What is the most likely sentence where the various offences arise out of the same facts?
It will usually be appropriate to pass concurrent sentences for each.
What is the most likely sentence where the various offences arise out of different facts?
Consecutive sentences are likely to be passed.
How long can a court defer a sentence for ?
up to 6 months?
Why would a court defer a sentence?
A deferred sentence allows this time for D to prove to the court that they have either ‘changed’ or that the offence was an absolute ‘one-off’ and thus allowing 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.
When can a defer period be extended?
When 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 6 months.
What is the formal procedures for seeking an indication of sentence in the event of a guilty plea in the magistrate court?
Step 1: is the offence an either way? Yes
Step 2: has the magistrate court accepted jurisdiction in the allocation process? Yes
Step 3: D can ask for indication of what their sentence would be were they to remain in the magistrate court and plead guilty
Step 4: IF the court gives indication, the court will only indicate if the sentence if custodial or a non-custodial sentence
Step 5: D pleads guilty in magistrate court = step 4 is binding
In the magistrate court is the court required to give indication of sentence?
No, only optional
In the magistrate court what can information can they give in regards to the indication of sentence?
whether the sentence would be custodial or non-custodial.
If D plead not guilty would the indication of sentence by the court in the magistrate court apply?
No, the indication of sentence is only binding if D pleads guilty.
What is the formal procedures for seeking an indication of sentence in the event of a guilty plea in the Crown Court? - goodyear indication
Step 1: Asked for indication before the jury return with their verdict at any stage of their proceedings or before the PTPH? Yes
Step 2: Did D must:
- Either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court.
- Give clear instruction to their counsel that D wishes to ask for an advance indication of sentence.
= D can ask for indication
Step 4: Judge will decide whether to give an indication of sentence or not
When can D ask for an indication of Sentence in the Crown Court?
Either
a) before the PTPH
or
b) at any stage of the proceeding before the jury return their verdict
What should D do before asking for an indication in the Crown Court?
Did D must:
- Either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court.
- Give clear instruction to their counsel that D wishes to ask for an advance indication of sentence.
= D can ask for indication
In the Crown Court is the court required to give indication of sentence?
No.
The giving of an indication is discretionary and it remains the decision of the judge whether to give one or not.
How does the court determine seriousness?
By considering:
1) Culpability (D’s culpability in committing the offence)
&
2) Harm (which the offence i) caused, ii) was intended to cause, or iii) might foreseeably have caused
What is Culpability?
The blameworthiness
How is Culpability assessed?
With reference to:
1) the offenders role
2) the level of intention
and/or
3) premeditation and the extent and sophistication of planning.
Can the mere presence of a factor that is inherent in the offence be used in assessing culpability?
No
For example: the intention to cause serious harm is necessary element in section 18 OPA. what would increase culpability might be how the injuries were inflicted e.g with a weapon.
What is Harm?
An assessment of the damaged caused to the V
What is the statutory threshold has been passed to justify imposing a custodial sentence?
S. 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
What is the statutory threshold has been passed to justify imposing community order?
S. 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.
What is the seriousness threshold for custodial sentence ?
Unless….. So serious….
What is the seriousness threshold for a community order?
Unless… was serious enough…
Does the court have to follow any sentencing guidelines which are relevant to the offender’s case?
Yes
Every Court MUST follow any sentencing guidelines which are relevant to the offender’s case
When can a court not follow any sentencing guidelines which are relevant to the offenders case?
Unless the court is satisfied that it would be contrary to the interests of justice to do so.
What will the court refer to where there is no offence-specific sentencing guideline to exist?
The General guideline: overarching principle
Crown Court might also refer to Court of appeal judgements to look at how sentences have been reached for similar cases.
What should the court refer to an where factors are not covered and an overarching guidance is required?
The General guideline
with
Offence specific guideline
What happens at a sentencing hearing?
1) Prosecution: open facts make submissions & applications
2) Defence mitigate
3) Judge passes sentence
What are the duties of a prosecutor?
The duties of a prosecutor extend to reminding the court of the following:
1) any previous convictions
2) any ancillary orders that the prosecution seeks (e.g cots, compensation, restraining order)
3) Any relevant sentencing guidelines
4) any general sentencing issues necessary to ensure that a lawful sentence is passed (e.g the mandatory minimum sentence provisions)
5) any victim impact statement which has been produced.
What does the role of prosecution not include?
To tell the court or to suggest to the court what the ultimate sentence may be
What is the general duty for the prosecutor and the defence in a sentence hearing?
General Duty: to ensure that a lawful sentence is passed
How can legal representative ensure they abide the general duty in a sentence hearing?
Legal representative must ensure that what they put forward is consistent with their instructions and their duties not to mislead the court.
When can a pre sentence report be ordered?
At the Plea
&
Trail preparation hearing
or
even at the time of sending.
What is the result of a pre-sentence report ordered by the court ?
The case will ordinarily be adjourned for a period for this to happen.
What is a pre-sentence report?
The report is to assist the court in determining the most suitable method of dealing with an offender.
Probation input is needed before a community order can be imposed or asses D’s suitability for any programmes.
The probation officer will meet D and discuss the offence and D’s attitude towards it.
Why is a Probation input needed?
Probation input is needed before a community order can be imposed or asses D’s suitability for any programmes.
What is the role of a probation officer?
The probation officer will meet D and discuss the offence and D’s attitude towards it.
Can the a court pass a custodial or community sentence without obtaining a presentence report?
S. 30 SA 2020
A court must obtain a pre-sentence report before passing a custodial or community sentence, unless it considers it unnecessary to do so.
Other than a pre-sentence report, what other reports are needed if the court is contemplating a sentence pursuant to the Mental Health Act 1983?
It must receive evidence from 2 medical practitioners stating that in their opinion D is suffering from a mental disorder.
What is the approach the court should take for sentencing?
The Code confirms:
1) Determine offence seriousness
2) Consider aggravating factors (both statutory and other non-statutory matters)
3) Consider mitigating factors (those reducing seriousness)
4) Consider any assistance given to the prosecution
5) consider the appropriate reduction for any guilty plea
6) consider totality
7) Appropriate ancillary orders must be considered
How does the court determine the category of sentencing guidelines applies?
For most offence, the sentencing guideline set out the appropriate range of sentence base on:
- Greater culpability and greater harm
- Greater culpability and lesser harm or greater harm and lesser culpability
- Lesser culpability and lesser harm
Highest level offence category would be 1, the lowest 3 and the middle category is 2.
What will happen when the category of the offence is determined?
The judge will have a starting point and range of sentence.
How is the range of sentence determined?
Based on the category of the offence.
What will happen after the category of the offence is determined?
The court will consider aggravating and mitigating factors which will then result in an upward or downward adjustment from the starting point.
What are common aggravating statutory factors?
Previous conviction(s), particularly where a pattern of repeat offending is disclosed
Offence committed whilst on bail for other offences
Offence was racially or religiously aggravated
Offence motivated by, or demonstrating, hostility to the victim based on his sexual orientation (or presumed sexual orientation) or on the victim’s disability ( or presumed disability)
Commission of an offence while under the influence of alcohol or drugs
Planning of an offence
Offenders operating in groups or gangs
‘Professional’ offending
Commission of the offence for financial gain (where this is not inherent in the offence itself)
High level of profit from the offence
An attempt to conceal or dispose of evidence
Failure to respond to previous sentences
Offence committed whilst on licence
Offence motivated by hostility towards a minority group, or a member or members of it
Use of a weapon to frighten or injure victim
Multiple victims
Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence
An especially serious physical or psychological effect on the victim, even if unintended
Victim is particularly vulnerable
Deliberate targeting of vulnerable victim(s)
An intention to commit more serious harm than actually resulted from the offence
Location of the offence (for example, in an isolated place)
A sustained assault or repeated assaults on the same victim
Offence is committed against those working in the public sector or providing a service to the public
Presence of others eg relatives, especially children or partner of the victim
Additional degradation of the victim (e.g. taking photographs of a victim as part of a sexual offence)
Abuse of a position of trust
Abuse of power
What are common mitigating factor?
- A greater degree of provocation than normally expected
- Mental illness or disability
- Youth or age, where it affects the responsibility of the individual D
- The fact that the offender played only a minor role in the offence
- Good Character and/or lack of previous conviction
- Any personal mitigation
What is a credit for a guilty plea?
D are given ‘credit’ or a discount on their sentence if they plead guilty
How is the amount of credit determined?
When the guilty plea was entered
What is the safest way D can obtain maximum credit?
Either by:
a) Entering a guilty plea to a summary only or either way offence at the first hearing
or
b) where the matter is indictable only, by providing an unequivocal indication at the first hearing that D intends to plead guilty and that D’s defence team will contact the Crown Court to arrange for this to happen imminently.
What is the safest way D can obtain maximum credit for a summary only offence or either way offence?
Entering a guilty plea to a summary only or either way offence at the first hearing
What is the safest way D can obtain maximum credit for an indictable only offence?
where the matter is indictable only, by providing an unequivocal indication at the first hearing that D intends to plead guilty and that D’s defence team will contact the Crown Court to arrange for this to happen imminently.
What is the max credit if D pleads guilty at first stage of proceedings?
Max 1/3
What is the max credit if D pleads guilty after first stage of proceedings?
Max 1/4
