Criminal 6 - Practice - Sentencing Flashcards
SC guideline
Must follow unless it would be contrary to interests of justice to do so
If prevalent in an area and causing harm to community may exceed.
Seriousness
Section 63 SA (Sentencing Act) 2020 must consider;
culpability
harm - caused, intended, foreseeably have caused.
Culpability
Four levels. Determined by;
intention to cause harm
reckless as to whether harm is caused
has knowledge of specific risk even though no intent
guilty of negligence
Harm
-physical
-sexual
-financial
-health
-psycholigical
Seriousness
Statutory aggravating factors;
previous convictions (as far as reasonable)
offences on bail
racial or religious aggravation
hostility based on sexual orientation or disability
Other aggravating factors;
-(a) offences that are planned or premeditated;
(b) offenders operating in groups or gangs;
(c) the deliberate targeting of vulnerable groups (such as the elderly or disabled victims);
(d) offences committed whilst under the influence of drink or drugs;
(e) the use of a weapon;
(f) deliberate and gratuitous violence or damage to property, beyond that required to carry
out the offence;
(g) offences involving the abuse of a position of trust;
(h) offences committed against those working in the public sector or providing a service to
the public;
(i) in property offences, the high value (including sentimental value) of property to the
victim; and
(j) failure to respond to previous sentences.
Mitigating factors;
(a) offences where the defendant has acted on impulse;
(b) when the defendant has experienced a greater degree of provocation than normally
expected;
(c) defendants who are suffering from mental illness or physical disability;
(d) if the defendant is particularly young or old (particularly in the case of young offenders
who are immature and have been led astray by others)
(e) the fact that the defendant played only a minor role in the offending;
(f) defendants who were motivated by genuine fear; and
(g) defendants who have made attempts to make reparation to their victim.
Guilty plea
Court must take into account indication and circumstances. Saves need for trial (must be sufficiently early).
Aged 18 or over.
1/3 discount. Only at first stage of proceedings
-first hearing, or indication at magistrates followed by guilty at first crown court hearing. Must be uneqoivocable indication
If unreasonable to expect plea reduction may still apply.
If later 1/4 reduction maximum.If first day of trial can be reduced to 1/10. After that zero.
Totality and other offences
Convicted in same proceedings for sentenced at same time, D asked court to take into consideration.
D may ask other offences presented by police to be taken into account. Similar nature or less serious .
‘Wipes the slate clean’ - all dealt with at once.
Sentencing guidelines
STEP 1 - Offence category;
CAT 1 - greater harm + enhanced culpability
CAT 2 - greater harm or enhanced culpability
CAT 3 - lesser harm and lower culpability.
STEP 2 - Provisional sentence, starting point and category range;
Fine-tune by looking at aggravating and mitigating. Holistic. Also relevant guidelines for custody.
STEP 3 - factors which reduce sentence;
assistance to police or prosecution.
STEP 4 - Reduction for guilty plea;
STEP 5 - Extended sentence;
S61 SA 2020. Grounds for extension (e.g. dangerous offender)
STEP 6 - Totality principle;
number of offences to ensure proportionality
STEP 7 - Compensation and ancillary orders;
Order to pay compensation or confiscation, destruction and forefeiture orders
STEP 8 - Giving reasons;
S52 SA 2020 - give reasons for sentence, effect of non-compliance and identify definitive guidelines been followed, including lower sentences.
Concurrent and consecutive
Two or more offences
Concurrent - custodial terms deemed to be served at same time
Consecutive- one sentence will start after another.
Consecutive not generally imposed where facts arise out of same incident.
Concurrent may be imposed if they do not arise out of same if totality principle applied.
Pre-sentence report before plea
Only if;
plead guilty to all charges on prosecution fatcs
AND
agree to co-operate with probation service to prepare a report.
Legal representative must also be satisifed that;
-D is likely to be sentenced in magistrates
-offence is serious enough for community order and pre-sentence report likely to be necessary
D must understand;
-report before plea provides no indication of any sentence and all options remain open
-court will decide whether to consider report before plea if probation service produces one
-court may proceed to sentence without report if court considers unecessary.
S30 SA 2020 - sentencing court must obtain and consider report based on;
-whether custody threshold has been passed and how long custodial should be
-threshold for imposing community sentence passed and the requirement that should be imposed on D.
-Will not invalidate sentence if do not stick to it.
Mitigation
Penultimate stage
-D presents mitigation by advocates, character witnesses or character letters.
Structure
-Likely sentence - solicitor may identify likely sentence
-offence - circumstances, minimising aggravating and stressing mitagating.
-offender - emphasise personal mitigation
-suggested sentence - solicitor says most appropriate sentence in his view.
Likely sentence
Less severe than starting point. Research guidelines
Offence
Disassociate case from aggravating factors
Offender
Personal mitigation;
-Age
-Health (drug-addict, alcoholic)
-Co-operation with police/early guilty plea
-Voluntary compensation
-Remorse - positive steps
-Character - distinguish past offences from current or good character. R v Seed R v Stark (2007) good character reduced custodial sentence even when threshold reached.
-Family circumstances - if pre-sentence report will look at background.
-Low risk of re-offending
Should conclude with suggested sentence. If in line with pre-sentence report solicitor should emphasise this.
Types of sentence
- custody
- suspended sentence
- community sentence
- fine
- discharge (conditional or absolute).
Custodial sentence
Most allow discretion
Save murder (minimum life imprisonment)
Must not pass unless a fine or community sentence would not be justified. If even just passed strong mitigation or guilty may reduce.
Does not apply when failure to take interest in community orders.
Custodial sentence must be - for shortest term in opinion of court is commensurate with seriousness of offence or offences.
Magistrates max - Six months
2 Either-way offences up to 6 months can be applied consecutively to make 12 months.
Crown court - can go up to maximum.
19 - 21 will be served in young offender institution.
Dangerous offenders (both adult and juvenile) must impose;
(a) automatic life imprisonment;
(b) discretionary life imprisonment; or
(c) an extended sentence of imprisonment
Early release
Normally released automatically halfway through sentence.
Adult custodial up to two years (after Feb 2015) automatically released on halfway point and be on license in community.
Must have post-sentence supervision up to 12 months.
Over 2 years usually same unless offender or particular concern.
These particular concern offenders must apply for parole from halfway point.
Suspended sentence
Custodial of at least 14 days but no more than two years. (or 12 in magistrates). May be suspended for at least six months or two years.
Will apply if meets custody threshold but considers particular circumstances which justify suspension.
May require things during supervision period. Supervision lasts no longer than operation period.
Breach or further offence. If Magistrates - Mag or crown. If crown goes to crown.
Must do one of the following after breach;
(a) order the custodial sentence originally suspended to take effect unaltered;
(b) order the custodial sentence to take effect, but for a shorter period of time, and/or
substitute a lesser custodial period;
(c) amend the original order by imposing more onerous community requirements on the
defendant; or
(d) amend the original order by extending the operational period, or by extending the
supervision period.
Must impose unless unjust (e.g. a minor matter).
Generally will activate sentence and order consecutive with additional sentences.
Generic community orders
S204(2) SA 2020;
Must not make order if of the opinion;
the offence
or combination of offence and one or more offences associated
was serious enough to warrant the making of such an order.
Options;
Unpaid work - between 40 and 300 hours within 12 months
Activity requirements - finding work, repairing damage
Programme requriement - courses to address offending
Prohibited activity requirement -
Curfew - normally residence between specific times. Will be tagged
Exclusion - entering place or places for period not above 2 years. Tagged
Residence - live at particular place
Mental health - agree to treatment for period
Drug rehabilitation -
Alcohol treatment
Supervision - attend appoinemtents with Probation Service. Up to three years.
Attendance centre - 12 and 36 hours, under 25 years of age.
Foreign travel prohibition -
Guidance from SC
three ranges (low, medium and high) court must decide which band offences falls into.
Breach of community sentence
First - warning from Probation Officer
If again within 12 months must appear beforre court.
If failed to comply without reasonable excuse;
amend the order so more onerous
revoke order and re-sentence without taking into account usual custody threshold
If D wilfully and persistently failed to comply, may revoke and impose custodial even if original not punishable by custodial.
If additional offence committed;
-allow original to continute or if in interest of justice having regard to circumstances may;
-revoke order (impose custodial for new offence)
-revoke order and re-sentence for original as if just convicted, must have regard to extent in which failed to comply
Newton hearings
May plead guilty but dispute factual events put forward by CPS.
Court must;
Accept D’s version OR
Allow CPS and D to call evidence to determine true factual circumstances. (Newton Hearing)
Basis of plea - D accepts what guilty of sent to CPS to agree. If accepted D’s version will be put forward. Helps to remove aggravating factors
If reject and judge thinks prosecution sufficiently more serious (justifying higher sentence) then Newton Hearing.
Judge may reject basis of plea that is absurd.
Appeals procedure
-
May appeal;
-if they pleaded guilty against sentence received
-if they pleaded not guilty against any resulting conviction and sentence they received.
Appeal usually heard by recorder or circuit judge who will sit with even number of Magistrates. Two or four Mags. Prosecution cannot appeal only on point of law by way of case stated to High Court (so can D).
Appeal against conviction
- Magistrates Court may appeal on basis Mags made error on facts and or law.
Appeal in crown full re-hearing
Appeal against sentence
Magistrates to Crown if sentence too excessive.
Crown full re-hearing
Procedure
Mag to Crown -
File notice of appeal with Mag court and CPS not more than 15 business days from Mags passing sentence (or date sentence deferred to). Crown has discretion to extend limit.
Clerk will send notice f appeal to Crown and Crown will arrange a date for hearing of appeal.
If funded by representation order separate one needed. One not needed for help filling out appeal.
Mags may grant bail. No presumption of bail. If Mags dont can appeal to Crown for bail pending hearing of appeal.
Powers of Crown
May confirm, reverse or vary.
Sentence as long as Mags had the power to sentence that long.
Then by way of case stated to High on point of law or argument Crown exceeded jurisdiction.
Appeal to High Court
CPS or D may appeal from decision of magistrates to Queens Bench High Division;
(a) the decision which has been made by the magistrates is wrong in law; or
(b) the magistrates have acted outside their jurisdiction (Magistrates’ Courts Act 1980, s 111).
Arguments often raised in an appeal by way of case stated are that:
(a) the magistrates misread, misunderstood or misapplied the law;
(b) the magistrates decided to hear a case when they did not have the jurisdiction to hear it;
(c) the magistrates made errors in deciding the admissibility or otherwise of evidence;
(d) the magistrates erred in their decision following a submission of no case to answer.
Must apply to Mags within 21 days of decision being made. Writing to clerk of Mags. Must identify question of law. Mags must then state a case to high court
Will prepare draft statement of case that;
-specifies decision in issue
-specify question of law or jurisdiction on which opinion asked.
-include succinct summary of (nature and history, relevant findings of fact, relevant contentions of parties)
-if questions whether sufficient evidence on which court reasonably could reach finding of fact;
-specify that finding
-include summary of evidence on which court reached finding.
Clerk will then send draft to CPS and D solicitor to suggest amendments. Once final version send to party making appeal. Party must lodge this with High Court and give notice to other party it has been done.
The hearing
Heard by Divisional Court of Queen’s Bench Division - usually by three judges.
Confined to legal argument.
Power to reverse, vary or affirm decision. Might remit case back to acquit or convict, or remit to diff bench of Mags for re-trial.
CPS and D can appeal to Supreme Court following decision. Must be point of law of general public importance. High or Supreme must grant leave.
Quicker and easier to apply to Crown.
Judicial review
Made by CPS or D if
-made an order they had no power to make (ultra vires).
-breached rules of natural justice (by contravening a partys right to a fair hearing, or by appearing to be biased).
Seek order from Divisional Court quashing decision or compelling Mags to act in certain way.
Appeals from Crown
Rights of appeal to Criminal Division of Court of Appeal;
-Appeal against conviction. (Court of Appeal Grants Leave or trial judge grants a certificate that case fit for appeal)
-Appeal against sentence (Court of Appeal grants leave or judge who passed sentence grants certificat).
Appeal against conviction
When must be allowed?
-‘Unsafe’
Even if error of mistake if still would have been guilty must dismiss.
UNLESS if abuse of power by police or prosecuting authorities
Any failings by judge may amount to appeal.
To seek permission from court of appeal;
-Within 28 days of conviction must serve appeal notice on Registrar of Criminal Appeals at Court of Appeal.
-On receipt registrar will put case papers before single judge, will determine whether permission to appeal ought to be granted. Will also grant public funding if approved.
-If no merit order of loss of time (time in custody awaiting outcome not counted towards sentence). D has choice to accept views of judge.
Then before three judges in Court of Appeal;
Hear oral arguments from parties and hear fresh evidence if it;
appears to be credible
would have been admissable at trial
reasonable explanation for failure to adduce evidence at D trial.
Powers of Court of Appeal
quash conviction and acquit (if new evidence would have been acquitted at trial)
quash conviction and order re-trial (if unsafe e.g. judge error)
Find guilty of alternate offence
Dismiss appeal
Requires - unsafe and interests of justice
Appeal against sentence
Either certificate or case is fit from CA.
If to CA -
Notice and draft grounds of appeal sent to Registrar within 28 days of sentence being passed. State why considered excessive.
If leave granted two or three judge panel.
Will be wrong if;
sentence wrong in law (did not have power)
wrong in principle (excessive)
increasing sentence for not guilty.
No discount for guilty, should have had Newton, failed to take into account relevant offence or offender mitigation.
Co-defendant disparity
Manifestly excessive (only if beyond upper-limit)
After D sentenced, D counseil normally provide written advice on prospects of appeal in accordance with instruction in brief to counsel
Powers of CA;
confirm, or quash and re-sentence
Loss of time direction applies (continuing without merit).
Prosecution appeals
No right of appeal against acquitting at Crown.
Can appeal rulings of trial judge before or during trail which;
effectively terminate the trial (termination rulings)
significantly weaken the prosecution case (evidential rulings)
Powers of Attorney General;
CPS has right of appeal to Court of Appeal if Attorney-General considers Crown sentence unduly lenient.
Only triable on indictment or specified either-way
Must be a sentence that could have been passed in Crown.
Applications for re-trial
-Double-jeoprady (used to exist pre- CJA 2003, could not be tried twice).
But can for (after acquital)
Murder and Attempted Murder
Manslaughter
Kidnapping
Sexual offences (rape, attempted rape and assault by penetration)
Class A drugs such as unlawful importation and production
Arson endangering life or property.
CPS have to satisfy two-fold test for CA to quash and order new trial;
Evidential - ‘new and compelling’ evidence -
Must be new after trial and highly probative and substantial.
Interests of justice
-Existing circumstances make fair trial more likely
-Length of time since offence allegedly committed
-Likely new evidence would have been adduced in earlier proceedings but for failure of police or prosecution to act with due diligence and expedition
-since earlier proceedings police or prosecutor failed to act with due diligence or expedition.
