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).
