Sentencing

Question 1

Determining sentencing (outline)

Answer 1

Two-part approach to determining culpability and harm.

Culpability – blameworthiness assessed with reference to the offender’s role, level of intention/premeditation, and extent/sophistication of planning.

Harm – caused, intended or foreseeable (e.g. sustained and degree).

Question 2

Code’s approach to sentencing

Answer 2

1. Determine seriousness of the offence:
   - Category 1 – greater culpability and harm;
   - Category 2 – greater culpability and lesser harm or vice cersa;
   - Category 3 – lesser culpability and harm.
2. Consider any aggravating factors:
   - Prior convictions (inc. particular pattern of repeat offending);
   - Offences committed while on bail;
   - Offence was racially charged or victim targeted based on sexual orientation/disability.

Additional factors – including alcohol/drugs; planning; group/gangs offences; professional offending; commission of offence for financial gain; attempts to conceal; multiple victims; additional degradation (don’t need to know all).

3. Consider mitigating factors:
   - no previous offences;
   - good character;
   - Youth/age;
   - Minor role played;
   - Any personal mitigation.
4. Assistance given to the prosecution.

5.Reduction for guilty plea (first stage, 1/3, after first stage, 1/4, day of trial 1/10).

6. Consider totality (consecutive or concurrent sentences).
7. Appropriate ancillary orders.

Question 3

Duties of the court when passing sentence

Answer 3

1. Explain sentence in non-technical language;
2. Identify sentencing guidelines followed;
3. Explain why D passed the custody threshold of a custodial sentence is passed;
4. Explain credit given for a guilty plea and why it is at that level;
5. Set out any aggravating/mitigating factors considered in arriving at scene.

Question 4

When is a Newton Hearing required?

Answer 4

Where D pleads guilty on a basis that will make a material difference to the sentence. The court holds a hearing to decide the factual basis upon which to pass sentence.

Question 5

Non-custodial sentences for adults (outline)

Answer 5

1. Bind over.
2. Absolute discharge.
3. Conditional discharge.
4. Community order.
5. Fines.

Question 6

Bind over

Answer 6

Payment of money to the court as surety (in case offence is committed)

Question 7

Absolute discharge

Answer 7

Lowest form of sentencing available to the CC and MC. Reflects the triviality of the offence. D need not do anything (but discharge remains in their record).

Question 8

Conditional discharge

Question 9

Fines

Question 10

Community order