Criminal Litigation - Sentencing Guidelines (13) Flashcards
What is an overview of the sentencing procedure?
Sentencing Guidelines: When passing sentence, the courts must adhere to the Sentencing Guidelines, which outline sentencing procedure and a range of potential sentences for each offence (Sentencing Act 2020).
(1) Guidelines: Sentencing Guidelines are published by the Sentencing Council to promote consistency, confidence in the legal system, reduce offending, and reflect the seriousness of offences.
(2) Purposes: Courts must consider five purposes when passing sentence: a) punishment; b) crime reduction; c) rehabilitation; d) public protection; and e) reparations (s57).
>Unless sentence is fixed by law, subject to statutory minimum, or committed by ‘dangerous offender’.
What is the sentencing procedure?
Sentencing Procedure: Following conviction, sentencing generally follows the same structure. Certain offences which carry fixed sentences or statutory minimums, such as murder, will engender a different approach.
(1) Seriousness: Courts determine the ‘seriousness’ of the offence, which provides a starting sentence and range of potential sentences. This is based on factors set out in the Guidelines.
(2) Aggravation and Mitigation: Courts then consider aggravating factors or mitigating factors, which determine where in the range of sentences the offence falls. These are argued by the prosecution and defence.
(3) Reductions: Courts then consider whether the sentence should be reduced. Reductions may be provided for cooperation with the police, and are mandatory if guilty pleas are entered sufficiently early.
(4) Dangerousness: Dangerous offenders may be subject to extended sentencing or mandatory imprisonment.
(5) Totality Principle: Courts then consider other offences that the defendant is being convicted for, or offers to the court, to arrive at a fair and proportionate overall sentence.
(6) Ancillary Orders: The court then considers whether any other orders are appropriate, such as requiring compensation to the victim.
(7) Reasoning: Finally, the court must provide reasons and explain the effects of the sentence passed.
How is the seriousness of the offence decided?
Seriousness: Courts must first determine the seriousness of an offence to arrive at a suggested starting point, and a range of potential sentences. Seriousness is divided between ‘culpability’ and ‘harm’, with relevant factors differing for every offence.
(1) Culpability: Culpability is the seriousness of the mens rea, i.e. the extent of intention. This will differ by offence, and ranges from high to low.
(2) Harm: Harm is the seriousness of the actus reus, i.e. the extent of damage. It ranges by number. Examples include:
>Physical injury, sexual violation, financial loss, sentimental loss, psychological distress.
Starting Point and Range
Starting Point and Range: The seriousness of the offence provides a suggested starting sentence, and a range of appropriate sentences to be determined by application of aggravating and mitigating factors.
(1) Starting Point: The starting point applies to all offenders irrespective of other factors.
(2) Range: The range informs the appropriate potential sentences, as determined by other factors.
What are the statutory aggravation factors?
Aggravation and Mitigation: Courts then consider aggravating and mitigating factors, which are also outlined in the guidelines. These will inform the appropriate sentence within the range provided.
Statutory Aggravation
Statutory Aggravation: Four factors oblige the court to treat the offence more seriously.
(1) Previous Convictions: Prior convictions aggravate an offence if reasonable to do so (refer to nature of offence and time since convictions).
(2) Offences on Bail: If the offence was committed during bail, it will aggravate the offence.
(3) Racial or Religious Motive: Racial and religious motives aggravate the offence.
(4) Sexuality or Disability Motive: Offences motivated by sexual orientation or disability aggravate the offence.
Which discretionary factors will the court consider as aggravating or mitigating?
Discretionary Factors: Courts may treat other factors as aggravating or mitigating, as laid out in the guidelines. These are typically provided to the court in submissions by the prosecution and defence, as well as pre-sentencing reports.
(1) Aggravation: Aggravating factors differ by offence, and may include:
a) planning; b) gang offences; c) targeting of vulnerable groups or public workers; d) intoxication; e) weapons; f) gratuitous violence/damage; g) abuse of trust; h) sentimental damage; and i) failure to respond to prior offences.
(2) Mitigation: Mitigating factors differ by offence, and may include:
a) impulsiveness; b) provocation; c) disability; d) youth or old age; e) minor role; f) fear; and e) attempted reparations.
(3) Prison Population: The court may also consider the current prison population, to persuade a non-custodial sentence (R v Arie Ali).
When will a pre-sentence report be prepared?
Pre-Sentence Report: The Probation Service may produce a pre-sentence report for a Defendant, assessing the reasons an offence was committed, highlighting aggravating and mitigating factors, and proposing appropriate sentences.
(1) Defendant Request: Defendants can request a pre-sentence report in advance of their first hearing if they intend to plead guilty and are likely to be sentenced in the MC for an offence warranting at least a community order.
(2) Court Request: Courts can adjourn pending a pre-sentence report. They must obtain a report if deciding on: a) custody threshold test; b) community order threshold; and c) unclear seriousness (s30).
>Not mandatory if a custodial sentence is inevitable, or a recent report exists.
(3) Effect: Reports can persuade the court, but there is no obligation for the court to rely on them entirely.
What is a plea in mitigation?
Plea in Mitigation: The Defendant’s legal representative will offer a plea in mitigation to highlight the Defendant’s mitigating factors and downplay any mitigating factors prior to sentence. This may involve character witnesses and letters.
(1) Sentence Range: The advocate begins by narrowing the range of likely sentences.
(2) Offence: They then focus on mitigating factors within the offence itself.
(3) Offender: They then focus on personal mitigating factors of the offender. This may include:
a) youth or old age; b) long-term health issues; c) addictions; d) early cooperation; e) voluntary compensation; f) ‘true remorse i.e. voluntary rehabilitation; g) evidence of good character i.e. no prior convictions; h) family circumstances (good or explanatorily bad); i) low risk of re-offending.
(4) Appropriate Sentence: They then suggest the most realistic and fair sentence. If this is supported by a pre-sentence report, this will be highlighted.
What happens if there are disputed facts?
Disputed Facts: Defendants may plead guilty to an offence but dispute the prosecution’s version of events. These are important to dispute, as the facts of an offence will influence the overall sentence. There are three options:
(1) Basis of Plea: Prosecution and defence enter a written version of agreed events (the Prosecution will do this to guarantee the guilty plea). This narrative is generally accepted by the court when sentencing, but can be rejected if deemed ‘absurd’.
(2) Defendant Facts: The court can choose to accept the Defendant’s facts outright, sentencing on those alone.
(3) Newton Hearing: Finally, the court can order a Newton Hearing, an evidential hearing to determine which set of facts to sentence on. If the Defendant loses, they lose any reduction credit for any early plea or police cooperation.
When may a sentence be reduced?
Reductions: Courts then reduce the sentence based on early cooperation and pleas, for guilty pleas. This is subject to any credit loss by a failed Newton Hearing.
(1) Discretionary Reduction: Courts have discretion to reduce sentence for assistance with the police or prosecution (s74).
(2) Early Plea: Courts must reduce a sentence for a sufficiently early guilty plea (s73).
First Hearing: Plea at first hearing is ⅓ discount.
Pre-Trial: Plea before the first day of trial is ¼ discount.
First Day: Plea on first day of trial is ⅒ discount.
Mid-Trial: Plea during trial may result in a discount lower than 1/10.
When will a defendant be subject to an extended sentence?
Dangerousness: Dangerous offenders who commit certain specified offences are usually subject to extended sentences.
(1) Specified Offences: Specified violent, sexual and terrorism offences as determined by statute.
(2) Dangerous Offender: Offender committed offence with significant risk to members of the public of serious harm.
(3) Extended Sentence: Extended licence period is added to the custodial term in order to protect the public from serious harm.
What is the totality principle?
Totality Principle: Courts must then consider the overall sentence for any associated sentences the Defendant is also being convicted of, or has offered to the court.
(1) Associated Offence: Must be an offence that: a) convicted in the same proceedings; b) is pending sentencing; or c) the Defendant has asked the court to consider (even if not yet charged).
(2) Effect: Courts will pass a sentence which is just and proportionate to the overall seriousness of all the offences.
(3) Offering Offence: It is often prudent for Defendants to offer new offences. This will unburden the legal system and prosecution service, and often adds very little to the total sentence.
Threshold: Courts can only consider offences if similar or less serious than the current offence.
What is an ancillary order?
Ancillary Orders: Courts must consider whether or not additional orders should be made, such as victim compensation (s55).
Does the court have to give reasons for passing a sentence?
Reasoning: Finally, the court must give its reasons for passing the given sentence, and the effects therein (s52).
