Criminal Litigation - Sentences (14) Flashcards
What is an overview of the sentencing procedure?
Sentences: Convicted defendants may be subject to a range of available sentences.
(1) Sentencing: Sentences will depend on the relevant factors of the offence and the application of Sentencing Guidelines to them (see sentencing).
(2) Disclosure: Solicitors must disclose to the court any information that would render a sentence unlawful, overriding the duty of confidentiality to the client (i.e. an undisclosed suspended sentence).
What is a discharge?
Discharge: Discharge means the Defendant is subject to no immediate penalty.
(1) Absolute: Absolute discharge means no penalty now or later.
>Reserved for technical offences undeserving of punishment (i.e. homeless man taking from charity box).
(2) Conditional: Conditional discharge means no penalty provided defendant does not reoffend in specified time.
>Re-offending will mean the defendant is resentenced.
What is a fine?
Fine: Fines are imposed for specified types of offence, and can range in seriousness.
(1) Level: Fines are provided in 5 levels, from lowest to highest.
(2) Payment: Fines are paid according to disposable income (usually by instalment).
What is a community order?
Community Order: Community orders are ordered for offences warranting more than a discharge or fine, but falling below the custodial sentence threshold (s204 SA).
(1) Conditions: At least one condition must be attached to the order (below).
(2) Duration: Community orders can last up to 3 years.
(3) Breach: Breach of condition can engender various consequences (such as resentencing).
(4) Reoffence: Reoffending during the community order can engender similar consequences to breach.
Which conditions could be imposed during a community order?
Conditions: One or more conditions will be imposed on the defendant during the order.
(1) Unpaid Work: 40-300 unpaid work to be completed within 12 months.
(2) Specified Activities: Requirement to or prohibition from undertaking specified activities (i.e. therapy).
(3) Curfew and Residence: Requirements on where to reside, and curfew between specific hours.
(4) Exclusion Zones: Exclusion from entering specific areas for up to 2 years, and potential travel restrictions.
(5) Rehabilitation: Compulsory rehabilitation programs.
(7) Supervision: Supervision by the Probation Service for up to 3 years.
Attendance Centre: Under-25s may need to attend Attendance Centres for between 12-36 hours (police-run workshops on discipline and social skills).
What happens if there is a breach of condition?
Breach of Condition: Breaching a condition without reasonable excuse may result in:
(1) First Breach: Defendant is formally warned by Probation Service officer for a first breach.
(2) Second Breach: A second breach within 12 months is reported to the court. Defendant attends hearing.
Amendment: Court may amend the order, making it more burdensome.
Resentence: Court may revoke the order and resentence.
>Custody threshold is disapplied, meaning custodial sentence is possible even if original offence did not permit or warrant custodial sentence.
What happens if a further offence is committed during community order?
Further Offence: Committing further offences during the community order requires court consideration. The court can:
(1) Continue: Permit the order to continue (subject to amended conditions).
(2) Automatic Revocation: If the new offence results in a custodial sentence, the order is automatically revoked (as it would be impossible to comply with from prison).
(3) Resentence: If the new offence is non-custodial, the court can still revoke and resentence.
>New sentences must consider the extent of CO compliance, and be in the ‘interests of justice’.
>They can sentence to imprisonment.
What is a custodial sentence?
Custodial Sentence: Custodial sentences (imprisonment) may be ordered if an offence passes the ‘custody threshold’, and is mandatory for certain offences. This is subject to suspension (below).
(1) Mandatory: Offences such as murder carry a mandatory term of imprisonment.
(2) Dangerous Offender: Dangerous offenders must be given custodial sentences.
>Violence, sexual or terrorist offences warranting at least 10 years imprisonment.
(3) Custody Threshold: Other offences may permit custodial sentences at the court’s discretion.
What is the custody threshold?
Custody Threshold: The custody threshold is a test to determine whether custodial sentence is warranted (s230).
(1) Test: Offence or combination of offences must be ‘so serious’ that neither a fine or community order is justified.
>If in doubt, a guilty plea or strong mitigating factors will favour a non-custodial sentence (R v Seed; R v Stark).
(2) Exception: The test is not applied if the defendant refuses to comply with a non-custodial sentence (s230).
How is the length of sentence decided?
Length of Sentence: Courts must apply a Length Test to determine the length of sentence.
(1) Test: The sentence must be for the shortest available period commensurate with the seriousness of the offence or combination of offences (s231).
(2) Maximum Sentence: Magistrates are capped at 6 months (12 for consecutive). Crown Court is capped at the maximum term of the given offence.
(3) Concurrent Sentence: Multiple sentences may be ordered concurrently, meaning served simultaneously. This is common for offences arising from the same event.
(4) Consecutive Sentence: Multiple sentences may be ordered consecutively, meaning one after the other. This is common for offences arising out of different factors, on bail, or in prison.
When will a defendant be released on licence?
Release on Licence: Defendants are typically released from prison on licence halfway through their overall sentence (including consecutive sentences).
(1) Automatic: Defendants are typically released halfway into the sentence automatically.
Supervision: Sentences of over 2 years require at least 12 months supervision beginning on release.
(2) Application: Offenders ‘of particular concern’ must apply for release for sentences exceeding 2 years.
>This is a specific condition of the sentence, used for particularly serious offenders (i.e. rapists).
>The court will declare the defendant an ‘offender of particular concern’ on sentencing.
How does a suspended sentence work?
Suspended Sentence: Suspended sentences are custodial sentences in which imprisonment has been suspended.
(1) Threshold: Offence must satisfy custodial threshold test, but mitigating factors suggest suspension is more beneficial on balance (i.e. family care requirements).
(2) Custodial Sentence: The original custodial sentence must be between 14 days and 2 years to be suspended.
(3) Effect: Defendant is permitted to live in the community (subject to conditions), on the basis that he does not reoffend during the length of the sentence. If he does, the custodial sentence is likely to take effect.
Operational Period
Operational Period: The operational period is the length of suspension, in which time the defendant must not reoffend - this is often longer than the length of the original custodial sentence (s288).
(1) Magistrates’ Court: Between 6 months and 12 months.
(2) Crown Court: Between 6 months and 2 years.
Supervision Period
Supervision Period: The supervision period is the length during which the defendant is subject to conditions.
(1) Length: The supervision period can be no longer than the operational period (s287).
(2) Conditions: The conditions available are the same as under a community order.
Breach of Sentence
Breach of Sentence: Breach of sentence occurs if the defendant breaches condition or reoffends during the relevant period.
(1) Hearing: Defendant is brought before court, who will determine next steps.
>MC sentences can be heard in either court, CC sentences only in CC.
(2) Factors: Courts must order the original sentence to take effect, unless it is ‘unjust’ to do so. This is typical for minor infractions.
(3) Court Sentence: Courts have a number of options.
Custodial Sentence: Order the original custodial sentence to take effect (or a shorter one).
>This runs consecutively with any custodial sentence imposed for a further offence.
Alteration: Make the suspension more onerous or subject to greater supervision.
Fine: Fines of up to £2,500 can be ordered for minor infractions.
