Sentencing

Question 1

what are the purposes of sentencing? how does the court have to use them?

Answer 1

The court must have regard to the various purposes of sentencing when determining the proportionate sentence to be imposed:

1- punishment of offenders

2- reduction of crime (including by deterrence)

3- reform and rehabilitation

4- protection of the public

5- making reparations to persons affected by the offence

these purposes have equal weight but some may be more important in particular cases

Question 2

where are defendants sentenced for either-way offences?

Answer 2

If D pleads guilty in MC: MC or committal for sentence to CC (if powers are insufficient)

If D pleads NG in MC and trial happens in MC: MC or committal for sentence to CC (if powers are insufficient)

If D pleads NG in MC and trial happens in CC: only CC

Question 3

can a defendant who pleaded/was found guilty in the MC for summary only offences be sent to the CC for sentencing?

Answer 3

No - only MC can sentence for summary offences

Question 4

what is a pre-sentencing report? what is it used for? what is its affect on the sentencing procedure?

is it required?

Answer 4

Prepared by the Probation Officer

Assists the court in determining appropriate sentence

The court has a duty to obtain a pre-sentencing report before imposing a community order or custodial sentence unless it thinks unnecessary

D can order one otherwise

If one is ordered then sentencing will be adjourned

Question 5

how is sentencing determined?

Answer 5

Based on the sentencing code and relevant sentencing guideline:

• the seriousness of the offence is determined by assessing its harm and D’s culpability
• a starting point sentence is determined
• aggravating and mitigating factors are considered to increase or decrease the sentence
• court considers if D assisted police e.g., answering questions in interview
• credit is given for any guilty plea entered
• if there are multiple offences, the court considers totality (concurrent vs consecutive)

Question 6

what is culpability?

Answer 6

culpability is one of two considerations when determining seriousness of offence for the sentencing starting point

it relates to D’s blameworthiness, role, level of intention, pre-meditation, and extent of planning

in the sentencing guidelines, there are categories A, B, and C for culpability

Question 7

if D is charged with s18 OAPA, can D’s intention to commit the offence be considered when assessing their culpability?

Answer 7

No - a factor of culpability which relates to an element of the offence is not used in assessing culpability

compare this with if e.g., D used a weapon while committing s18, this would be a factor that increases culpability

Question 8

what is harm?

Answer 8

harm is one of two considerations when determining seriousness of offence for the sentencing starting point

It is an assessment of the damage caused to the victim

in the sentencing guidelines, there are categories 1, 2, and 3 for harm

Question 9

what are some examples of aggravating factors?

Answer 9

• previous convictions (esp. with a pattern of offending)
• use of a weapon
• offence committed while on bail
• offence had to do with race, religion, sexual orientation, disability, or hostility towards minority group
• there was planning of the offence
• offenders were in a group or gang
• victim is particularly vulnerable
• D was under the influence of drinks or drugs
• D tried to conceal or dispose of evidence
• D abused a position of trust
• D abused power
• there were repeated assaults on the victim
• there were multiple victims
• offence was committed for financial gain
• there was an especially serious physical or psychological effect on the victim

Question 10

what are examples of mitigating factors?

Answer 10

• D was provoked more than normally expected
• D is young and this affects their responsibility
• lack of prior convictions
• D has mental illness or disability
• D only played a minor role
• any personal mitigation
• remorse but lack of remorse is not an aggravating factor

Question 11

what amount credit does D receive and when? (3)

Answer 11

D receives credit for pleading guilty

Pleaded guilty during first hearing at MC: 3/10

Pleaded guilty after first hearing: 4/10

Pleaded guilty on day of trial: 1/10

Question 12

if D is charged with multiple offences, what must the court consider when determining sentencing?

Answer 12

the court must consider the totality and arrive at a sentence which is just and proportionate

they must consider whether the sentences are to be consecutive or concurrent

Question 13

What is the difference between consecutive and concurrent sentences? When are either suitable?

Answer 13

Concurrent sentences: run simultaneously and are suitable when the offences arise out of the same events

Consecutive sentences: run after the other and are suitable when the offences do not arise out of the same events e.g., D commits an offence while on bail for another offence

Question 14

what is an absolute discharge?

Answer 14

non-custodial sentence imposed to reflect the triviality of the offence, the circumstances it was committed in, and special factors of the offender

it is effectively no punishment at all

offender has nothing to comply with

Question 15

what is a conditional discharge? what is the maximum period it can be imposed?

Answer 15

a discharge with a condition attached that if the offender commits another offence during the specified period, they can be resentenced for the original and new offence

the specified period cannot be longer than 3 years

Question 16

what are the 5 non-custodial sentences?

Answer 16

1) bind over

2) discharge

3) conditional discharge

4) fines

5) community order

Question 17

what is a community order?

Answer 17

non-custodial sentence that requires the defendant to comply with one or more requirements in the community within a specified time limit

Question 18

what is the threshold for a community order?

Answer 18

the court must not make a community order unless it thinks that the offence is SERIOUS ENOUGH to warrant making such an order

Question 19

what are the criteria to be satisfied for a community order? I.e., when is the court allowed to grant one?

Answer 19

1) threshold for community order is met: the court must not grant a community order unless the offence is serious enough to warrant one

2) offender must be 18 or over

3) offence must be imprisonable

4) the court obtained a pre-sentencing report unless they thought it unnecessary

Question 20

what is the maximum time that the court can require a community order to run?

Answer 20

Max of 3 years

this is a period of operation during which the requirements in the order must be completed

the court can extend this period only once up to 6 months beyond the 3-year limit

Question 21

is there any limit as to what requirements can be imposed in a community order?

Answer 21

yes -

• requirements must include a PUNITIVE ELEMENT (unless a fine is also imposed or circumstances deem it unjust)
• requirements must not conflict with D’s religious beliefs or work/education

also - the court must have regard to any period that D spent remanded in custody or on electronically monitored curfew if it considers requirements that restrict liberty

Question 22

what happens if an offender breaches a community order?

Answer 22

1) If they fail WITHOT REASONABLE EXCUSE to comply with a requirement, they must be warned that their failure is unacceptable

2) if they fail again within 12 months of the warning, then breech proceedings will be instituted and they will be brought before the magistrates court and trial will be held if they deny breaching as to whether there was a failure without reasonable excuse.

consequences of proceedings: amend order to make it more onerous, fines, revoke the order and resentence (custodial sentence of up to 6 months is possible)

Question 23

what is the custodial threshold?

Answer 23

the court must not pass a custodial sentence unless it is satisfied that the offence is SO SERIOUS that neither a fine or a community order can be justified

the sentence is up to the court’s discretion, having regard to the guidelines, and must be for the shortest possible period to reflect the purpose of sentencing

Question 24

what is a determinate custodial sentence?

Answer 24

an immediate prison sentence for a defined period of time

Question 25

what are the custodial sentencing powers of the magistrates court and crown court?

Answer 25

Magistrates court: subject to statutory maximums -

• 6 months for summary only offences
• 6 months for a single either way offence
• 12 months for more than one either way offences

Crown court: unlimited sentencing powers subject to the statutory maximums

Question 26

when will credit be added towards a custodial sentence (other than for a guilty plea)?

Answer 26

if D was remanded into custody for any period prior to sentence, the whole period is automatically counted towards their sentence

if D was on bail with an electronically monitored curfew condition for at least 9 hours per day, then credit of 1/2 day for every day on bail is added (this is not automatic, D must apply for this)

Question 27

when are prisoners entitled to parole?

Answer 27

halfway through their sentence they can be released on parole

they will then be on license or supervision by the Parole Board

this is unless they are serving life sentences, imprisonment for public protection, or extended sentences

Question 28

what is a suspended custodial sentence?

Answer 28

A sentence which passes the custody threshold but the defendant does not go to prison immediately unless they commit another crime or breach any requirement during the operational period

it includes:

• custodial term: how long the custodial sentence would have been
• operational period: how long the custodial term is suspended for
• supervision period (discretionary): how long D must be supervised by the Probation Service
• requirements (discretionary): the court can add the same requirements as those used in community orders

Question 29

how long must the operational period of a suspended sentence be?

Answer 29

minimum of 6 months and maximum of 2 years

(note: any supervision period can be as long as this or shorter)

Question 30

how can an offender ‘breach’ a suspended custodial sentence? what are the consequences?

Answer 30

if an offender commits another crime during the operational period of a custodial sentence, the court must ACTIVATE the suspended custodial sentence in part or in whole having regard to the extent to which the offender complied with it in the past - unless it would be unjust to do so

if an offender breaches any requirement, they will receive a warning if they breach it again within the next 12 months then there will be breach proceedings (like in a community order)

Question 31

what are the maximum suspended sentences a magistrates court can give?

Answer 31

the magistrates can suspend a custodial sentence of 14 days to 6 months

for an operational period of 6 months to 2 years

Question 32

what are the maximum suspended sentences a crown court can give?

Answer 32

the crown court can suspend a custodial sentence of between 14 months and 2 years

for a operational period of 6 months to 2 years

Question 33

for what 2 cases are there minimum custodial sentences and what are they?

Answer 33

• 3rd burglary of a dwelling house: minimum custodial sentence of 3 years
• 3rd class A drug offence: minimum custodial sentence of 7 years

Only the Crown Court can decide these sentences (MC must send to CC)

Question 34

for what crime is there a mandatory life sentence? what does this mean?

Answer 34

murder carries a mandatory life sentence - the court does not have discretion to pass any other sentence

the court will fix a minimum term after which the offender can apply for release to the parole board - if released they remain on license for life

Question 35

in what scenario would a newton hearing be relevant?

Answer 35

• D pleads guilty to the offence but disputes the facts and basis on which the prosecution made the case.
• The basis and facts may make a difference with regards to the defendant’s sentence.
• the newton hearing will be to decide on the disputed factual basis on which it must pass a sentence

Question 36

when will the court hold a newton hearing?

Answer 36

P does not agree to D’s written basis of plea, and court decides that D’S BASIS WILL MAKE A MATERIAL DIFFERENCE IN SENTENCING (considering sentencing guidelines)

Question 37

what is the process of a newton hearing?

Answer 37

• D will draft a written basis of plea and send it to the prosecution who will decide if it is acceptable or not.
• If they do then D will be sentenced on their basis.
• If P does not then a Newton Hearing will be hear to determine the facts only if the defendant’s basis will make a material difference to sentence
• at the hearing the court will determine if P proved its version of the facts BRD
• hearing follows the same process as a trial but only focuses on disputed issues = P and D call witnesses (can be cross-examined) and adduce evidence

Question 38

what is the consequence if a newton hearing is held and the prosecution were vs were not able to prove their basis of facts beyond a reasonable doubt?

Answer 38

P proved facts BRD:

• D sentenced on P’s basis of facts
• D may lose credit received for their guilty plea = this is usually halved but may be more if witnesses were called

P did not prove BRD:

• D sentenced on their basis of facts