Criminal Practice - Sentencing Principles Flashcards
1
Q
Aggravating and Mitigating Factors
A
Aggravating factors that MUST be taken into account
- Previous convictions if it is reasonable to do so (having regard to nature and time passed)
- Offence committed whilst on bail
- Racial or religious aggravation
- Hostility based on sexual orientation, transgender identity or disability
Aggravating factors that MAY be taken into account
- Premeditation
- Committed in a group
- Vulnerable victim
- Under the influence of drugs or alcohol
- Abuse of position of trust
- Use of weapon
- Gratuitous violence or damage to property
- Victim providing a service to the public
- High value or sentimental nature of property
- Failure to respond to previous sentence
Mitigating factos that MAY be taken into account
- Committed on impulse
- Subject to a high degree of provocation
- Disability or mental illness
- Very young or very old
- Played a minor role
- Motivated by fear
- Attempted to make reparation with the victim
2
Q
Starting Points and Sentencing Range
A
- Contained in the Sentencing Guidelines
- Courts are obliged to follow these unless it is in the interests of justice to do so
3
Q
Concurrent
A
- Sentences served simultaneously
4
Q
Consecutive
A
Sentences served on after the other
5
Q
Totality
A
- Sentence must not be disproportionate to the overall seriousness of the matter
- If offences arise out of the same matter sentences will usually be concurrent
- If offences did not arise out of the same conduct consecutive sentences will usually be imposed
6
Q
Plea in Mitigation
A
- Defence gives reasons why lowest possible sentence should be imposed
- Advocate should remind the judge to give defendant credit for their guilty plea (if relevant)
7
Q
Credit for Guilty Plea
A
- Defendant who pleads guilty before trial entitled to sentence reduction
- Defendant who pleads guilty at first opportunity receives one-third reduction in sentence
- Earlier guilty plea is entered the greater the reduction in sentence
8
Q
Custodial Sentence
A
- Imposed when offence is so sentence that no other form of punishment will suffice
- Shortest possible sentence that reflects the seriousness of the offence should be imposed
- Defendant will usually spend half of their sentence in custody and the remainder on licence
- If they breach their licence they will be recalled to prison to serve the rest of their sentence
- Magistrates’ Court: maximum of 6 months’ imprisonment for a single or multiple summary only offences or a single either way offence, maximum of 12 months’ imprisonment for two or more either way offences
- Crown Court: restricted by the maximum sentences for each offence
9
Q
Suspended Sentence
A
- If conditions of suspension breached or if further offences committed whilst subject to suspended sentence a person can 1) serve the custodial term imposed, 2) serve a reduced custodial term to reflect compliance with suspended sentence, 3) have additional requirements imposed and 4) have the period of suspension extended
- Maximum suspension is two years
- Crown Court can suspend a 2 year sentence
- Magistrates’ Court can suspend a 6-month sentence
- Minimum period of suspension is 14 days
- Additional requirements can be imposed (e.g. community order) as part of suspended sentence
10
Q
Community order
A
- Court will impose restrictions which are commensurate with the seriousness of the offence
- Unpaid work, rehabilitation, programme requirement, curfew, exclusion from particular area, residence, mental health treatment or drug rehabilitation
- If community order breached the defendant can be subject to breach proceedings which may result in order being amended or order being revoked and being sentenced to custody
11
Q
Financial penalty
A
- Often paid into court by instalments
- Can be imposed by both the Magistrates’ Court and the Crown Court
- Can be imposed as either a sole sentence or in combination with any other sentence (save for discharge)
12
Q
Discharge
A
- Absolute discharge: no punishment except for a criminal recording of offence
- Conditional discharge: defendant must not offend again for specified period up to 3 years or they could be sentenced for original offence
13
Q
Sentencing Powers
A
- Magistrates’ Court: 6 months for single offences, 12 months for two or more either way offences
- Crown Court: limited to the maximum sentence available for each offence
14
Q
Newton Hearings
A
- Defendant may wish to plead guilty on specified basis if they accept culpability but do not agree with the full facts - can offer a basis of plea
- If prosecution accepts that the basis offered reflects the seriousness of the offending the defendant can be sentenced on the agreed basis (no need for Newton hearing)
- Takes place if defence has put forward a written basis of plea which is not accepted by the prosecution
- Newton hearing: procedure to settle disputed facts before sentencing defendant who pleaded guilty
- Involves a form of trial in which witnesses called to give evidence
- If hearing settled in prosecution’s favour defendant will lose any credit for guilty plea
- If hearing settled in defence’s favour the defendant will retain any credit for guilty plea
15
Q
Mitigating Factors relating to Offence
A
- E.g. low value, committed on impulse
