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Criminal Practice > Sentencing > Flashcards

Sentencing Flashcards

1
Q

What is the statute for sentencing?

A

Legal aid, sentencing and punishment of offenders act 2012

And sentencing act 2020

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2
Q

What does section 57 of setnencing act 220 state that a court setnencing an offender age 18 r over must have regard?

A

Punishment of offenders
Reduction of crime
Reform and rehabilitation of offenders
Protection of public
Making of reparation by offenders to persons affected by their offence

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3
Q

What is the setnecning council of England and Wales?

A

Guidelines prepared and updated. Has the power to prepare sentencing guildeines, and must have regard to current setnecning practice, need to promote consistency in setnencing, impact of decisions, need to promote public confidence, cost of different setnences, effectiveness of re-offending reducing.

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4
Q

What is the principle of seriousness?

A

One of the key concepts a setnencing court is required to consdier, is SERIOSUNESS.

Must consider:
Offenders CULPABILITY in committing offence, and
Any HARM which the offence caused, intended to cause, might have caused

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5
Q

What is culpability of seriousness?

A

4 levels of culpability:

Intention to cause harm (planned offence) worse harm, greater seriousness

Reckless as to whether har is caused

Has knowledge of specific risks entailed by actions

Is guilty of negligence

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6
Q

What is harm in seriousness of offence?

A

Harm may be caused by individuals, or community.

Physical, sexual, financial, damage to health, psychological

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7
Q

What are the STATUTORY aggravating factors?

A

Previous convictions (must treat as aggravating, having regard to nature and time elapsed since conviction)

Offences committed whilst on bail

Racial or religious aggravation (any motive for committing offence)

Hostility based on sexual orentation or disability

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8
Q

What are other aggravating factors that are in the sentencing guildiens on seriousness?

A

Offences that are planned/premeditated
Offenders operating in grounds
Deliberate target of vulnerable grounds
Offences whilst under influence
Use of weapon
Deliberate and gratuitous violence or damage to property
Offences involving abuse of position of trust
Offences committed against working in public sector, or providing service to public
High value of property of victim
Failure to respond to previous sentences

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9
Q

What is the list of mitigating factors in teh setnecning guidelines which reduce the seriousness?

A

Offences where D acted on impulse
Where D has experienced a great degree of provocation
Defendants hwo are entally ill or physically disabled
If D is younger old
Fact that D played a minor role in offending
D who were motivated by genuine fear
D who has made an attempt to make reparation to victim

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10
Q

What is seciton 73 of the setnecning a ct 2020?

A

Reducing in setnence for a guilty plea, court must take into account the guilty plea. Saves victims and witnesses stress, anxiety time and money.

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11
Q

What is the reduction of setence if there is a guilt plea at first hearing in magistrates court/first hearing in magistrates court where case is then committed for setnencing to crown/indication of guilty plea in magistrates to offence indictment, following by guilty plea at first hearing in crown court?

A

One third.

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12
Q

What is the reduction in sentence indicated after first stage of proceedings?

A

Max level is one quarter reduction

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13
Q

What is the reduction of setnence indicated at the PTPH?

A

One quarter

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14
Q

When should the reduction be decreased from 1/4 to 1/10?

A

Where a guilt plea is entered on the first day the TRIAL was meant to take place.

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15
Q

What is the totality principle?

A

When an offender is being sentenced, the court will take into account both the offence they are being sentenced, and any associated offences.

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16
Q

What is TIC

A

Take other offences into consideration

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17
Q

What are the steps for the sentencing guidelines?

A

1: determine offence category
2: shape the provision setnecing - starting point ad category range
3: consider any factors which reduce sentence (assistance to police etc)
4: reducing in sentence for guilty plea
5: imposing extended sentence (s 61 of SA2020, court will be required to consider imposing such setnence if DANGEROUS OFFENDER
6: totality principle
7: compensation and other ancillary orders
8: giving reasons

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18
Q

What are the different offence categories that make step 1 in sentencing guidelines?

A

3 categories:
1. Greater harm and enhanced culpability
2: greater harm OR enhanced culpability
3 lesser harm and Low level culpability

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19
Q

What is included in the provisional setnence step 2 of sentencing guidelines?

A

Aggravating and mitigating factors. Holistic approach is taken

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20
Q

What is included in step 8, giving reasons, of sentencing guidelines?

A

Obliges the court to give reasons for setnence it is imposing. Explaining to offender the effect of setnence, non-compliance with setnence, and the guidelines taht have been followed.

21
Q

What are concurrent sentences

A

Happen at the same time. Served at the same time.

Totality principle : if same set of facts, concurrent sentences.

22
Q

What are consecutive setnences

A

One custodial setnence will start after the other one has finished. Not generally imposed where matter of fact arises out of SAME incident.

23
Q

What is a pre-setnence report?

A

LR can ask probation service to prepare a pre-setnence report before first hearing. Court will decide whether to use it to sentence the defendant.

Wll only ask this if the defendant will:
- plead guilty to all offences
- agree to co-operate

24
Q

What must the defendant understand about a pre-setnence report?

A

Provides no indication of any setnence and that all setnencing options remain OPEN to court
Court will decide whether to consider it

Court may proceed to setnence without pre-sentence report, ifconsidered unnecessary

25
Q

What is mitigation during the setnencing process?

A

The defendant has the opportunity to present mitigation befoer setnecning court, then considers and imposes its sentence.

Plea in mitigation involves a speech by defence advocate.

26
Q

What is the objective of a plea in mitigation?

A

To persuade the sentencing court to impose upon the defendant the most LENIENT setnence which te court could expect to give.

27
Q

What are the 4 parts of the plea in mitigation?

A

The likely sentence : research likely range of setnences, starting pint, impose a less severe starting point

The offence : focus on offence itself - minimise impact of any aggravating factors, emphasis mitigating factors.

The offender : move on to consider personal mitigation: (age, health, cooperation with police, voluntary compensation, remorse, character, family circumstnaces, low risk of re-offending

The suggested sentence : suggesting to the court the setnecing which they think they should impose. Lower than likely sentence.

28
Q

What are the 5 different types of sentences?

A

Custody
Suspended sentence
Community sentence
Fine
Discharge

29
Q

What is custodial sentence?

A

Allow setnencing court discretion as to whether custodial setnence should be imposed and length.

Must apply threshold test in s 230 SA: court must not pass custodial setnence unless it is of the opinion that the offence was so serious that neither a fine nor community sentence can be justified for offence.

Court must then decide length, and must be the shortest term that in the opinion of the court commensurate seriosuness of offence.

30
Q

What is the custody threshold?

A

The threshold test which sets out if custody should be sentenced or not.

31
Q

What is teh max custodial setnence with magistrates?

A

6 months, 12 months for 2 or more either way offences, by imposing 2 six month offences.

32
Q

What is the max custodial setnence for crown court?

A

Term of imprisonment up to max permitted for that offence.

33
Q

If an adult offender between ages of 19-21 have a custodial setnence, where do they serve?

A

In a young offenders institution - YOI

34
Q

Who is a dangerous offender?

A

Adult and juvenile.

Must impose automatic life imprisonment, discretionary life imprisonment, or extended sentence of imprisonment.

35
Q

What is the rule with early release?

A

A defendant sentenced to custody will not usually serve all sentence behind bars - usually automatically release halfway through setnence.

They will then be on licence int eh community to the end of the setnence. On release, they must have a period of post-setnence supervision, to ensure they are supervised for 12 months.

36
Q

What are suspended sentences?

A

Rather than immediate, it may be suspended.

A custodial setence of at leases 14 days, not NO MORe than 2 years (or 12 months in magistrates), may be suspended for 6 MONTHS and NOT MORE than 2 YEARS.

This is called the operational period.

37
Q

Wehn will the court impose a suspended sentence?

A

If it in Initially decides that the custody threshold, but then considers that particular circumstances exist which justifies the suspension of the setnence.

38
Q

What are requirements which the court may impose for suspended sentences?

A

Likely to order D to comply during a specified period, SUPERVISION PERIOD, with one or more requirements.

This must end no later than end of operational period. Same as community order

39
Q

What is the consequence of a breach of suspended sentence?

A

The sentence of imprisonment will NOT take effect, UNLESS either the D fails to comply with requirements of operational period, or commits a FURHER offence, and court setnencing the D for the new offence, and orders the original sentence to take effect.

40
Q

If the defendant breaches a suspended sentence, who are they dealt with ?

A

Either magistrates or crown court. If suspended setnences was imposed by crown, any breach will be dealt with crown.

41
Q

When dealing with a D who breaches suspended setnence, what must hte court do?

A

1 of 4 things:

Order custodial setnence to take effect
Orde custodial setnence to take effect, but for short time
Amend original orde,r by imposing more onerous community requirements
Amend original order by extending operational period, or extending supervision period

42
Q

What fine can be imposed for a breach of suspended sentence?

A

2,500

43
Q

If the court activates suspended sentence after a breach, when will it run?

A

Consecutively with additional setnence for new offence.

44
Q

What are the generic community order threshold?

A

Court must not make community order unless it is in opinion that the offence or combination of offences, was serious enoug to warrant order.

45
Q

What are the contents of a generic community order?

A

Unpaid work requirement (4-300 hours)

Activity requirement

Programme requirement

Prohibited activity requirement

Curfew reqiurement

Exclusion reqiurement

Residence requirement

Mental health treatment requirement

Drug rehabilitation requirement

Alcohol treatment requirement

Supervision requirement

Attenadnace centre requirement

Foreign travel prohibition requirement

46
Q

What happens if D breaches community sentence without reasonable excuse?

A

Recieve warning from officer from probation service who is supervising.

If, within following 12 months, D again fails to comply, then report to court, which imposes the order in the first place, and D is required to appear befoer court.

Will amend order, revoke order and re-setnence, or may revoke order and impose custodial setnence - EEN if original was not punishable by custodial.

47
Q

What are Newton hearings?

A

If D pleads guilty to the charge they face, but disputes the specific factual versions of events put forwards. If dispute concerning current version of events may have bearings n type of setnence, then msut either accept D version, or allow both CPS and D to call evidence .

This is a Newton hearing

48
Q

What is the basis of plea in a Newton hearing?

A

One way to AVOID having a Newton hearing, is to agree a version of events upon which the D will be setnences. Basis of plea. Instigated by defence.

Document that sets out defendants factual versions of events.

Purpose is to remove various aggravating features of the case which would lead to a higher setnence.

Criminal Practice (13 decks)

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