Criminal Practice- WS6 Sentencing Flashcards
What are the 5 purposes of sentencing according to section 57 of the Sentencing Act 2020?
The court must have regard to the following for the purpose of sentencing
- punishment of offenders
- reduction of crime (including its reduction by deterrence)
- reform and rehabilitation of offenders
- public protection
- providing reparation to the victim by the offender
Note. all have equal weight, but depending on the offence, particular ones may be of higher relevance
When does the court not need to have regard to the 5 purposes of the sentencing guidelines?
- If the sentence is fixed by law (e.g. murder) which must attract sentence of life imprisonment
- Offences subject to a statutory minimum or if the defendant is classed as a dangerous offender
Does the court have to use the sentencing guidelines?
- Yes, the court has a duty to have regard to the sentencing guidelines
- These are guidelines that contain explanations of what the most appropriate sentence is for most offences
Exceptions
* Unless it is contrary to the interests of justice to do so
When determining seriousness of an offence what 2 factors does the court take into account?
Section 63 Sentencing Act 2020
A court must consider ‘seriousness’ when passing a sentence.
Culpability intention and when offence is
* offence is (i) deliberate and planned (ii) reckless (iii) negligent and (iv) has knowledge of specific risks
Harm caused, intended, or foreseeably may have caused
* higher harm where offending extends beyond injuries, but victims everyday life i.e. ability to work
Give an example of high culpability vs low culpability?
High = a deliberate intentional act with high level of planning will mean higher sentence
Low = reckless or or negligent act with low degree of planning
What is meant by culpability in the principle of seriousness?
4 levels where the offender
1. Has the intention to cause harm, with the highest culpability being when an offence is planned. The worse the harm intended, the greater the seriousness
2. Is reckless as to whether harm is caused - D apprecaites that some harm would be caused but goes ahead anyway giving it no thought to the consequences even though the extent of the risk would be obvious to most people
3. Has knowledge of the specific risks entailed by their actions, even though the offender does not intend to cause the harm that results
4. Is guilty of negligence
What is considered harm in the principle of seriousness?
Harm may be caused to individuals or community at large. Including
1. Physical injury
2. Sexual violation
3. Financial loss
4. Damage to health
5. Psychological distress
When might the court treat an offence more seriously than elsewhere?
- If the offence is prevalent in the area and the court has evidence that these offences are causing harm to the community at large
- If the offence was carried out to emergency workers for example or those that work for police, NHS etc.
What are the 4 aggravating factors that the court must take into account on sentencing?
- Previous convictions, having regard to their nature and time passed
- Offence committed on bail
- Motivated by a protected characteristic of the victim (e.g. religion, race, sexual orientation disability)
- Was offence committed against an emergency worker
When are ‘previous convictions’ considered aggrevating factors?
- If the convictions have been committed recently and/or are for similar types of offence
- E.g. if a defendant is convicted of a theft from a supermarket and has several previous convictions for the same type of offence
What are 15 aggrevating factors the court may take into account from the Guidelines when sentencing?
- Planning offence
- Committed in a group
- Targeting vulnerable victim
- Drugs and alcohol
- Use of weapon
- Deliberate and gratuitous violence (intentional and unecessary, done for no reason)
- Abuse of a position of trust
- People in public sector or providing service to the public
- Property offence - high value or sentimental nature of property
- Failure to respond to previous sentence
- Offences committed in the presence of children
- Attempts at covering up
- Offences committed in custody
- Offences committed in the domestic context
- Offences committed in terrorist context
What are ten mitigating factors which may be taken into account on sentencing?
These will reduce the the serverity of the sentence
- D has acted on impulse
- D experienced a great degree of provocation than normal
- D suffered from mental illness or physical disability
- D is particularly young or old (e.g. young offenders who are morally questionable)
- D played minor role in offending, injuries were minor, sums of money small
- D motivated by geniune fear
- D made attempts to make reparation to their victim
- D has assited the prosecution or early admissions
- D has good character and no previous convictions
- D has geniune remorse for the victim
What is the reason for reducing sentence if the defendant enters into a guilty plea sufficiently early?
- Saves victim and witnesses from stress and anxiety about having to attend court to give oral evidence.
- Saves costs / administratively easier
Does the court have to follow the guilty plea guidelines?
Yes, court must follow unless it would be contrary to the interests of justice to do so.
What is the reduction in the sentence if the defendant pleads guilty in the ‘first stage of proceedings’
One third of the sentence off
What is considered ‘first stage of proceeding’?
- Guilty plea - first hearing in magistrates court
- Guilty plea - first hearing in magistrates court (where the case is then committed for sentence to the crown court)
- Indiciation of a guilty plea - magistrates court to an offence triable only on indictment, followed by a guilty plea at the first hearing of the Crown Court.
Exceptional circumstance
* Still recieve 1/3 if it would have been unreasonable to expect the defendant to indicate a guilty plea at this first hearing
Does D get a reduction if the guilty plea is indicated after the first stage of proceedings?
Maximum level of reduction is 1/4
* this is where the guilty plea is only first indicated at the pre trial plea hearing
Reduced to 1/10
* this is where the guilty plea is entered on the first day the trial was meant to take place (at the door of the court)
Reduced to 0
* E.g. guilty plea entered during course of trial
Will a defendant get a reduction if they are ‘likely’ to plead guilty?
No.
* Where at the magistrates court it is not procedurally possible for a defendant to enter a guilty plea, must be an unequivocal indication of the defendant’s intention to plead guilty.
* An indication only that he is likely to plead guilty = not enough
What is the totality principle the court will consider when sentencing?
If the defendant is being sentenced for
* more than one offence
* in the same proceedings
* totality principle applies.
The court, when sentencing does not sentence for each individual conviction - look at the totality of the offending to see if that reaches the relevant thresholds for sentencing e.g. custody threshold.
What offences are taken into consider (TIC) and how are they relevant to sentencing?
- Offences which the defendant has not been convicted of, but admitted to committing.
- Offence are of similar nature
- Advantageous to D as it ‘wipes the slate clean’ as they will not be subsequently prosecuted for such offences (helps police improve their clear-up rates without need to commence fresh prosecution against D)
Should not be taken into account if
* TIC is likely to result in a sentence greater than available for the convicted offence
* Public interest that separate prosecution be sought for TIC
The usual practice is for the police to present the defendant with a list of additional offences for which they are under investigation and may subsequently be charged.
The defendant may ask the court to take some or all of these other offences into consideration when deciding the
sentence they are to receive for the offence(s) for which they are currently before the court.
When will the court consider a special custodial sentence?
- A person who is sentenced for imprisonment listed in Sch 18A of Criminal Justice Act must be given special custodial sentence
- As they are special offenders of a particular concern (SOPC)
- Only applicable for certain particularly dangerous offenders (e.g. terrorists)
- SOPC made up of an appropriate prison term and extended licence of one year.
- Offender will no longer be automatically released halfway through their custodial sentence
SECTION 18A Violent crimes (e.g., murder, manslaughter, grievous bodily harm).
Sexual offenses (e.g., rape, sexual assault of a child).
Terrorism-related offenses.
Other crimes deemed particularly harmful or egregious.
What is the 8 step approach the court takes to arrive at its sentence?
1) Determine the offence category
* Depending on levels of harm and culpability
* Category 1 - both greater harm and enhanced culpability
1. Category 2 - either and greater harm and enhanced culpability
2) Shaping the provision sentence: starting point and category range
* Court will consider aggravating and mitigating factors
3) Consider any factors which indicate a reducting in sentence
* e.g. assisting prosecution, police
4) Reduction in sentence for a guily plea
5) Imposing an extended sentence
* e.g. when offender is a dangerous offender
6) Totality principle
* ensures the overall sentence is appropriate
7) Comepensation and other ancillary orders
* court is reminded of their duty to consider whether or not to order the offender to pay compensation and also make any other appropriate ancillary orders e.g. confiscation, destruction and forfeiture orders
8) Giving reasons
* court has to give reason for sentence it is imposing
* e.g. explaining to the offender effect of the sentence that has been passed, effect of non-compliance with the sentence and identify the definitive sentence guidlines that have been followed at reaching the sentence passed
* including an explanation as to why the court has imposed a lesser sentence than recommended in the guidelines
When will sentences for multiple offences generally be served concurrently?
1) Offences are connected and arise out of the same facts or incident, and the defendant is found guilty of two or more sentences.
2)Similar kind and comitted against same person
Example:
* a single incident of dangerous driving resulting in injuries to multiple victims
* robbery with a weapon where the weapon has been taken into account in categorising the robbery
* separate counts of supplying different types of drugs of the same class as part of the same transaction
* repetitive small thefts from an employer
Concurrent sentence = means that custodial terms are deemed to be served at the same time.
* E.g. Aisha sentenced for 3 years for wounding offence and 1 year for theft. Concurrent sentence would be combined together at the same time for 3 years
When will sentences for multiple offences generally be served consecutively?
1) Offences are unrelated
2) Similar but would not reflect the overall criminality will not sufficiently be reflected by concurrent sentence
Examples
* D commits a theft offence on one occaison and common assault against a different victim on a separate occaison
* one offence is a Bail Act offence e.g. failing to surrender
* offences of domestic abuse or sexual offences are committed against the same individual
Consecutive sentence = custodial sentence will start after the other one has finished.
* E.g. Aisha sentenced for 3 years for wounding offence and 1 year for theft. Consecutive sentence = 4 years 1 year theft offence would start after the 3 years.
