Sentencing

Question 1

Discuss type of sentencing would be appropriate when the main aim is (12)

Answer 1

…1. Retribution Prison (types)could be argued as the best punishment that fits the crime in many cases; to lose freedom seems a punishment that fits a serious crime. Quote s152 CJA 2003. Explain the different non-custodial sentences and what types of offences they may be used for, so that the punishment fits the crime.

2. Deterrence Some may argue that prison is the best deterrence as liberty is lost, but with 55% of adults and 70% of youths reoffending within 2 yrs of release, perhaps not! Discuss 4 of the non-custodial sentences under CJA 2003 such as unpaid work, prohibited activity, curfews and fines. For each one - do you think they deter
3. Reform/ rehab Many would agree that non-custodial sentences are the best way to reform and magistrates use them often. Discuss the effect of choosing community orders under CJA 2003 such as unpaid work, drug rehab order, discharges and compensation orders. For each - do they aid reform
4. Protection of public Prison is the main way to protect the public from serious offenders. Quote CJA 2003. However, non-custodial sentences can protect public through prohibited activity requirement, curfews, driving bans. For each, discuss how.
5. Reparation Discuss CJA 2003 unpaid work to repair offences such as criminal damage, fines to give back to state for offences such as benefit fraud, compensation order to give money back to the victim that was stolen, forfeiture order to recover stolen property, direct rep. to apologise.

Question 2

Aims of Sentencing 8

Answer 2

S142 of the Criminal Justice Act 2003 sets out the five main aims for sentencing those aged 18 and over:

1. Retribution – this is the idea that the offender is punished for their crime, and in proportion to their crime. It is based upon the Biblical text ‘an eye for an eye, tooth for a tooth, life for a life’. In the past it was used to justify the death penalty for murderers. Today, the sentencing council use it to impose a certain tariff for sentencing each offence.
2. Deterrence – This is aimed at putting off the offender from reoffending in the future. There are two types: Individual deterrence =This looks at what sentences may stop that particular individual from committing crime again. It may be a custodial sentence or non-custodial. However, statistics show that 55% of adults and 70% of young offenders reoffend within 2 years of release from prison. General deterrence = This is where the court gives an offender a harsher sentence in order to act as a deterrent to others. This was used against offenders in the 2011 riots. This aim contradicts the principle of retribution as it sentences an individual to a longer term than is deserved.
3. Reform/ Rehabilitation - This aims to reform the offender into changing their ways and to rehabilitate them back into society. The court will be given information about the offender’s background, usually through a pre-sentence report prepared by the probation service. Where relevant, the court will consider other factors such as medical reports and job prospects. When the aim is to reform, offenders are often given a community order with various requirements aimed at rehabilitating them.
4. Protection of the public - There are life / long imprisonment sentences for the most serious offenders in society such as those who are violent, murderers and those who commit sexual offences. The Criminal Justice Act 2003 stated that ‘the court must protect the public by imposing a custodial sentence if the offender poses a significant risk of serious harm to the general public’. In cases of less serious harm, the public can be protected in other ways such as a football hooligan being banned from football matches, a drink driver being given a driving ban, a burglar being given a curfew and electronic tag.
5. Reparation - This is aimed at compensating the victim of the crime, usually by ordering the offender to pay a sum of money to the victim or to make restitution (e.g. returning stolen items). The courts consider ordering compensation to the victim in addition to any other appropriate sentence. Direct reparation is where the offender meets with the victim face-to-face and apologises. Community service also aims at compensating society as a whole by making the offender serve the community. (Denunciation – society expressing disapproval of criminal activity.)

Question 3

Factors in Sentencing 8

Answer 3

Aggravating factors = Factors which make the offence and sentence more severe (harsh). They include … 1. the seriousness of the offence, 2. racial motive (can add up to 2 years onto sentence),3. Previous convictions, 4. use of a weapon, 5. D on bail when offence was committed, 6. vulnerable victim attacked. Aggravating factors specific to assault = 7. The offender being part of a group attacking the victim, 8. a particularly vulnerable victim, 9. a victim serving the public. Eg. Nurse, 10. the assault was premeditated.

Mitigating factors = Factors which make the offence and sentence less severe. They include… 1. First offence, 2. cooperation with the police, 3. offender shows remorse, 4 an early guilty plea, 5. background or circumstances of the offence. Reduction for early guilty plea = First reasonable opportunity = 1/3, After trial has been set = 1/4 At the door of/ in the court = up to 1/10 NB. In exceptional circumstances where the defendant’s guilt is overwhelmingly clear = 20%

Question 4

Custodial Sentences 8

Answer 4

1. S152 of the Criminal Justice Act 2003 says no custodial sentence shall be given unless the offence “was so serious that neither a fine alone nor a community sentence can be justified”.
2. Only available for offenders aged 21 or older. (Offenders aged 18 to 20 are sent to a Young Offenders Inst.)
3. Magistrates’ Court = Max. 6 months prison for 1 offence, max 12 months prison for 2 or more offences Crown Court = Can imprison an offender for up to the maximum for their offence, e.g. theft max. = 7 years
4. Murder = life imprisonment. Mandatory life sentences = used for murder. The judge can state the minimum number of years imprisonment. The minimum term is governed by the Criminal Justice Act 2003. Range: whole life term – 12 years minimum
5. Whole life term = Reasons for a full life term: Murder of a child if it involves abduction or a sexual motive. Murder done for the purpose of advancing a political, religious, racial or ideological cause. Aggravating factors = Premeditation, Vulnerable victim, Mental or physical abuse prior to killing. Mitigating factors = Intention to cause GBH not death, Lack of premeditation, If the murder was viewed as an ‘act of mercy’ by the offender (euthanasia)
6. Discretionary life sentences = The judge has discretion in sentencing and can give any lesser sentence where appropriate. Eg. For other serious offences such as S18 GBH the maximum sentence is life imprisonment, but the judge does not have to impose it. However, a life sentence should be given for a second offence.
7. Fixed term sentences = A ‘fixed term’ sentence is imprisonment for a set number of months / years. The length of sentence will depend on several factors: the maximum sentence for the crime, the seriousness of the crime, the defendant’s previous record. E.g. Theft can be given a fixed term up to 7 yrs dependent upon factors involved.
8. Suspended sentences = Given if there are exceptional circumstances in the case that justifies it (E.g.first time offences that are out of D’s character). Usually fixed for up to 2 years (6 months Magistrates’) No further offences = D will not serve.

Question 5

Non Custodial Sentences

Answer 5

1. The Criminal Justice Act 2003 created one community order under which the court can combine any requirements it thinks are necessary. For example:

. Unpaid work requirement – 40 - 300 hrs on a community project organised by the probation service. Often worked in 8 hr sessions and on weekends.

3. Prohibited activity requirement – A variety of activities are prohibited to prevent the offender from reoffending.
4. Curfew requirement – An offender can be ordered to remain at a fixed address for between 2 -16 hours out of 24. Order is up to 6 months via electronic tag.
5. Supervision requirement – The offender is placed under the supervision of a probation officer for up to 3 yrs. Other types of non-custodial sentences include:
6. Fines – most commonly used by Magistrates’ Court to punish offenders.
7. Discharges – Conditional = The court discharges the offender on condition no further offence is committed during a set period up to 3 years. Further offence = impose another sentence in addition to the penalty for the new offence. Widely used by Magistrates’ for first time offenders. Absolute = No penalty is imposed. Likely to be used when an offender is technically guilty but morally blameless.
8. other examples…. Driving ban – used for drink/ dangerous driving. Compensation order – offender pays money to the victim. Forfeiture order – certain property in possession of the offender is taken.