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SQE 1 (mine) > Criminal 6-Sentencing > Flashcards

Criminal 6-Sentencing Flashcards

1
Q

Purposes of sentencing

A
  1. reduction of crime (inc. by
    deterrence)
  2. punishment of offenders
  3. reform and rehabilitation of offenders
  4. protection of public
  5. reparation by offenders to victims
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2
Q

When do the court not need to have regard to the purposes of sentencing?

A

-sentence fixed by law
-Offence subject to statutory minimum
-Defendant classed as dangerous offender

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3
Q

Who is the sentencing council made up of?

A

□ 8 judicial members
□ 6 non judicial members

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4
Q

What does the sentencing concil have the power to do?

A

prepare sentencing guidelines in relation to any sentencing matter including for specific offences

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5
Q

What should the sentencing council have regard to when deciding sentences?

A

-sentencing practice
-need to promote consistency
-impact on victims
-need to promote public confidence
-cost of different sentences and their effectiveness in reducing re- offending
-SC’s monitoring of the application of the guidelines

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6
Q

How is prevalence relevent to sentencing?

A

Should pass same sentence for same type of offence, BUT in exceptional circumstances, may treat offence more seriously
Eg if:
-particular offence prevalent in area
- evidence the offences are causing harm to the community at large

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7
Q

What are the 8 steps for arriving at a sentence?

A
  1. determine category
  2. shape provisional sentnce (aggrivating/mitigating)
  3. factors indicating a reduction (eg. helping pros)
  4. reduction for guilty plea
  5. extended sentence in set circumstances
  6. totality principle
  7. compensation and other ancillary orders
  8. give reasons
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8
Q

What is considered when determining the offence category and what does this include?

A

Principle of seriousness, includes: culpability and harm the offence caused/was intended to cause/might foreseeably have caused

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9
Q

What are the levels of criminal culpability

A
  1. intention to cause harm
  2. recklessness as to whether harm is caused
  3. knowledge of the specific risks entailed by their actions, but don’t intend to cause the harm that results
  4. negligence
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10
Q

What type of harm must be considered?

A

harm which the offence (i) cause
(ii) was intended to cause (iii) might foreseeably have caused

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11
Q

Examples of types of harm?

A

(a) physical injury
(b) sexual violation
(c) financial loss
(d) damage to health
(e) psychological distress

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12
Q

What are the categories of offence?

A

Category 1-greater harm AND enhanced culpability
Category 2 -greater harm OR enhanced culpability
Category 3-lesser harm and lower culpability

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13
Q

What aggravating factors MUST the court use to treat the offence as more serious

A

Statutory aggravating factors:
1. Previous convictions (if reasonable to do so considering nature (similar type) and time elapsed)
2. Offences committed on bail
3. Racial or religious motive
4. Hostility based on sexual orientation or disability

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14
Q

What aggravating factors MAY the court consider?

A

a. Planned/premeditated offences
b. groups or gangs
c. Deliberate targeting of vulnerable groups (eg elderly/disabled)
d. drink or drugs
e. Use of a weapon
f. Deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence;
g. the abuse of a position of trust;
h. committed against those working in the public sector or providing a service to the public;
i. For property offences, the high value (including sentimental value) of property to the victim
j. failure to respond to previous sentences.

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15
Q

What mitigating factors MAY the court consider

A

a. acted on impulse;
b. experienced a greater degree of provocation than normally expected;
c. mental illness or physical disability;
d. particularly young or old (particularly if young offenders are immature and have been led astray by others)
e. played only a minor role in the offending;
f. motivated by genuine fear
g. made attempts to make reparation to their victim.

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16
Q

What does the court consider at step 2: shaping the provisional sentence (starting point and category range)

A

-aggravating and mitigating factors
-relevant statutory thresholds

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17
Q

What aggravating and mitigating factors MUST the court consider and what MAY they

A

MUST: statutory aggravating factord
MAY: other aggravating and mitigating

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18
Q

Who does the reduction in Sentence for a Guilty Plea’ Definitive Guidelines apply to?

A

all Ds over 18

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19
Q

What is the level of reduction in sentence for a guilty plea NOT dependent on?

A

-strength of prosecution case
-Remorse shown by D

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20
Q

How much will guilty plea reduce a sentence by?

A

1/3-at ‘first stage in proceedings’ (unless would have been unreasonable for them to do so)
1/4- at PTPH
1/10 (max)-on 1st day of trial (at the door of the court)
0-during trial

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21
Q

What is the totality principle?

A

When sentencing, court will take into account current offence and associated offences and overall sentence should:
-reflect all of the offending behaviour with reference to overall harm and culpability with the aggravating and mitigating factors relating to the offences and those personal to the offender
- be just and proportionate

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22
Q

what are associated offences?

A

◊ offence Ds been convicted of in same proceedings for which they’re to be sentenced at the same time

◊ Offences the D has asked the court to take into consideration (TIC) eg. want to ‘wipe the slate clean’

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23
Q

Examples of compensation and other ancillary orders

A

pay compensation
Confiscation
Destruction
Forfeiture

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24
Q

What is a concurrent sentence?

A

when 2 custodial terms are deemed served at same time

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25
Q

When is a concurrent sentence normally appropriate?

A

-offences arise out of the same incident or facts (athough dont have to)
-there is a series of offences of the same or similar kind, especially when committed against the same person.

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26
Q

What is a consecutive sentence

A

1 custodial sentence starts after other finishes

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27
Q

When is a consecutive sentence normally appropriate?

A

-offences arise out of unrelated facts or incidents;
-offences committed in same incident are distinct, involving an aggravating element that requires separate recognition;
- offences are of the same/ similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences.

28
Q

How does the totality principle affect consecutive and concurrent sentences?

A

Consecutive-usually impossible to find just and proportionate sentence by adding together notional sentences=need downward adjustment
Concurrent-as above, need upward adjustment

29
Q

When sentencing three or more offences, should concurrent or consecutive sentences be used?

A

May need a combination

30
Q

When can the defence solicitor ask the Probation Service to prep a pre sentence report

A

Before the first hearing when an adult is pleading guilty and likely to be sentenced in MC

31
Q

Is the court required to follow a pre-sentence report?

A

No, court will decide whether to use to sentence

32
Q

What must a solicitor ensure the D understand before a pre-sentence report is obtained?

A

-Report provides no indication of any sentence and all sentencing options remain open to the court
-Court may proceed to sentence without a pre-sentence report if the court considers a report unnecessary

33
Q

When MUST the court obtain and consider a pre-sentence report?

A

Before forming an opinion on:
-whether the custody threshold has been passed and, if so, how long the custodial sentence should be;
-whether the threshold for imposing a community sentence has been passed and, if it has, the requirements that should be imposed on the defendant under a generic community order.
UNLESS in the circumstances it considers it unecessary

34
Q

What is a plea in mitigation?

A

Penultimate stage in the sentencing process
Is a speech by defence advocate to persuade court to impose most lenient sentence which court could reasonably be expected to give for that offence

35
Q

Normal structure of plea in mitigation?

A
  1. Likely sentence (starting point)
  2. offence (minimise aggravating and emphasise mitigating
  3. offender info
  4. suggested sentence (low end of realistic range)
36
Q

What information about the offender could the defence mention in the plea in mitigation?

A

-Age
-Health (long term illness/mental illness/alcohilic)
-Cooperation with police/early plea
-remorse (positive steps)
-Character (distinguish prev convictions/wintess)
-Family circumstances
-Low risk of reoffending (if addressed in report)

37
Q

Types of sentence from most to least serious

A

Custodial
Suspended sentence
Generic Community Order
Fine
Discharge (conditional or absolute)

38
Q

When can the custody threshold test be applied?

A

When the court has discretion as to whether a custodial sentence can be imposed

39
Q

What is the custody threshold test

A

Is the offence/combination of associated offences so serious that neither a fine alone nor a community sentence can be justified

40
Q

Can a custodial sentence be imposed if the custody threshold isnt passed?

A

no

41
Q

Must the court impose a custodial sentence if the custodial threshold test is passed

A

No, ie where there’s a guilty plea or v string mitiation

42
Q

What makes the custody threshold test not applicable

A

where offender fails to express a willingness to take part in a community sentence

43
Q

How long MUST a custodial sentence be?

A

MUST be for the shortest term (not exceeding the permitted maximum) that the court thinks is commensurate with the seriousness of the offence/combination of offences

44
Q

Maximum sentencing powers for MC and CC

A

MC-6mo for 1 offence, 12,mo for 2 or more either way offences imposing 2 consecutive 6mo periods for each offence
CC-max permitted for that offence

45
Q

What must the sentencing court impose for dangerous offenders?

A

(a) automatic life imprisonment;
(b) discretionary life imprisonment; or
(c) an extended sentence of imprisonment.

46
Q

What is early release?

A

Adult custodial sentence up to 2y (committed after 1 Feb 2015)=automatic release into community on licence 1/2 through sentence subject to post sentence supervision

Sentence over 2y=automatic release on license after 1/2
UNLESS an ‘offender of particular concern’ can apply for parole and can be released on license any time form 1/2 to end subject to similar supervision
Eg terrorism/child sex offences

47
Q

When can a suspended sentence be imposed?

A

Custodial sentence of at least 14d but less than 2y (or 12mo for MC)

48
Q

How long can a sentence be suspended for?

A

at least 6mo bur under 2y

49
Q

What are the ‘periods’ of a suspended sentence?

A

‘operational period’=Period sentence suspended for
‘supervision period’=court orders D to comply with certain requirements (same as GCO)

50
Q

For a suspended sentence, can the supervision period be longer than the operational period?

A

No

51
Q

When will imprisonment take effect for a suspended sentence?

A

◊ D fails to comply with any requirements imposed
◊ D commits further offence during the operational period and court sentencing for the ‘new’ offence orders that the original sentence of imprisonment is to take effect.

52
Q

Where will a breach of suspended sentence be dealt with?

A

◊ Original sentence by MC=MC or CC
◊ Original in CC=CC only

53
Q

What will the court do for a breach of a suspended sentence?

A

(a) activate original custodial sentence unaltered
(b) acvivate custodial sentence, but for a shorter period of time
(c) impose more onerous community requirements
(d) extend the operational or supervision period

MUST do a or b unless unjust in circumstances, new sentence will be consecutive

Can also impose fine up to £2500 where doesn’t give immediate effect to custodial sentence

54
Q

When can the court make a Generic Community order

A

It thinks the offence/combination of offences was serious enough to warrant the making of such an order.

55
Q

Options for a Generic Community order

A

Unpaid work
Activity
Programme to address behaviour
Prohibited activity requirement
Curfew
Exclusion from place
Residence
Mental health treatment
Drug/Alcohol rehab
Supervision (app with probation service)
Attendance centre (if u25)
Foreign travel prohibition

56
Q

Maximum length of supervision requirement for generic community order?

A

3 years

57
Q

Maximum length of exclusion requirement for generic community order?

A

2 years

58
Q

Max age and time for attendance centre requirement for generic community order

A

between 12 and 36 hours
if under 25

59
Q

What happens if you breach a generic community order without reasonable excuse?

A
  1. Warning from Probation officer
  2. another breach in 12mo=court
  3. court must:
    -impose more onerous requirements
    -revoke order and resentence with or without considering custody threshold (even if offence doesnt carry custodial)
60
Q

What happens if you commit a further offence during a generic community order

A

MC can allow original order to continue or if it is in the interests of justice having regard to the circumstances that have arisen since the original order was made, they may:
-Revoke (if imposing custodial sentence for new offence)
-Revoke and resentence for original offence as if they’ve just been convicted of it (must have regard to the extent to which D has complied with the original order)

61
Q

If D pleads guilty but disputes factual version of events put forward by CPS and the events effect type of sentence what are the courts options?

A
  1. Accept Ds version of events
  2. Have Newton Hearing
62
Q

What is a Newton hearing

A

hearing allowing CPS and D to call evidence so the court can determine the true factual circumstances of the offence for sentencing

63
Q

What is the ‘basis of plea’ in a Newton hearing

A

a doc setting of Ds factual version of events to offence D accepts they’re guilty of (likley to remove aggravating factors) if rejected py prosecution, will have Newton hearing

64
Q

What will the judge do before a Newton hearing if the consider the basis of plea absurd?

A

Reject basis and sentencing will take place on the prosecution version of events without a Newton hearing taking place.

65
Q

What usually happens if you commit a further offence during the operational period of a suspended sentence?

A

the suspended sentence will be activated to run fully and consecutively with the new custodial sentence.

SQE 1 (mine) (30 decks)

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