Sentencing Flashcards
Sentences?
Sentencing code is a consolidation of sentencing procedure law.
Sentencing Act 2020 – part 2 – 13 make up the code.
Different types of sentences
- Custodial
- Non-custodial
When determining the proportionate sentence
- S57 SA – for those over 18 – must regard to
- Punishment of offenders
- Reduction of crime
- Reform and rehabilitation
- Protection of the public
Summary only and either way?
Summary only
- Cannot be sent to crown court for sentence
Either way
- Can be sentenced in magistrate and in crown court.
- If defendant pleads not guilty to either way in magistrates and it’s sent to crown court for trial and then found guilty cannot be sent back to magistrates
- if commited to crown court
On what basis is the defendant being sentenced?
if defendnat takes an issue with the part of the offences
like he accpets he commited it, but says he only kicked them once.
Enter a guilty plea on a written basis
The prosecution will indicare whether they consider the basis acceptable
The court will then consider whether this basis is an acceptable one
The court will consider whether or not a newton hearing is required.
SO EXMAPLE 1
DEFENCE DRAFT WRITTEN BASIS OF PLEA AND PASS IT TO PROSECUTION
- IF NOT ACCEPTABLE TO CROWN
- THEN MOVE ON TO - DOES THE JUDGE THINK THE BASIS IS ABSURD - IF YES - SENTENCE ON PROSECUTION BASIS
- IF THE JUDGE DOES NOT THINK ITS ABSURD - THEN CONSIDER WILL IT MAKE A MATERIAL DIFFERENCE TO SENTENCING - IF YES THEN HOLD A NEWTON HEARING
- IF NO THEN SENTENCE ON DEFENCE BASIS
or EXAMPLE 2
Basis IS ACCEPTABLE TO CROWN
- DOES THEH JUDGE ACCEPT THE BASIS
- YES - SENTENCE ON DEFENCE BASIS
- NO - HOLD A NEWTON HEARING/
Newton hearings?
- When a defendant pleads guilty on a basis that will make a material difference to sentence.
In magistrates court a newton hearing is presided over by magistrates or a district judge. Judge acts as arbiter of both law and facts.
In crown court it takes place without a jury. - Like a trial – both sides call evidence and court must decide whether prosecution has proved their version of facts beyond reasonable doubt.
- If it has will be sentenced on prosecutions version of facts
- Otherwise sentences on defence version as set out in their base of plea.
If prosecution do prove in this instance defendants lose some of their credit for pleading guilty.
Consideration for offences?
otality
- For more than one offence – have to decide whether consecutive or concurrent sentences are appropriate.
Deferring sentence
- Defer up to 6 months, the idea being in that time D shows they have changed or the offence was a one off.
Indications of sentence
- Magistrates court
- Offence is either way and court has accepted jurisdiction.
- Can ask for indication of their offence, - can only say WHETHER SENTENCE WILL BE CUSTODIAL OR NON-CUSTODIAL only becomes binding if they plead guilty.
Crown court- goodyear indications
- D can ask before PTPH or before jury return verdict – before asking for an indication D must
- Either acts prosecution facts or a written basis of plea must be accepted by parties
- Give clear instructions to their counsel that D wishes to ask for an advance indication of sentences
Determining sentence? SERIOUSNESS?
Court must determine seriousness of the offence
- Starting point is culpability and harm
S63
- Offenders’ culpability
- Any harm which offence causes, intended to cause or might foreseeably have causes.
Thresholds for imposing a custodial or community order
- Court must not pass a custodial sentence unless it was so serious a fine or community service is not enough
Culpability – blameworthiness
Harm – assessment of damage caused to victim
Sentencing hearing?
Courts must follow any sentencing guidelines which are relevant to offenders’ case unless the court is satisfied that it would be contrary to interests of justice to do so.
At a sentencing hearing
Prosecution
- Remind court of any previous convictions
- Any ancillary orders prosecution seeks – costs, compensations, restraining order
- Relevant sentencing guidelines
- Any sentencing issues
- Any victim impact statement which has been produced
Defence
- Not mislead court
- May have asked for pre-sentence report before prosecution open case.
- Pre-sentence reports
- S30 – must obtain a pre-sentence report before passing a custodial or community sentence.
- Help inform court what best method of sentence is.
Approach to sentencing?
- Determine offence seriousness
- Consider aggravating factors
- Consider mitigating factors
- Consider any assistance given to prosecution
- Consider appropriate reduction of any guilty plea
- Consider totality
- Appropriate ancillary orders.
Common aggravating factors?
- Previous convictions
- Offence committed whilst on bail
- Offence was racially or religiously
- Offence motivates by sexual orientation
- Commission of an offence under influence of drugs or alcohol
- Planning of an offence
- In griyos
- Profession offending
- For financial gain
- Vitim vulnerable
- Abuse of power
Common mitigating factors?
- Mental illness
- Youth or age
- Good character
- A greater degree of provocation than normally expected.
Credit for guilty plea?
/3 reduced on first hearing
- ¼ reduced after first stage of proceedings
- 1.10 on first day of trial q
Passing sentences
- Explain to defendant in non-technical language
- Identify sentencing guidelines that it followed
- Explain why defendant passes the custody threshold.
Non-custodial sentence?
Bind over
- Imposed in magistrates or crown court
- Often imposed on someone instead of them entering a guilty plea.
- A person bound over to keep the peace for a sum of money that they forfeit if they fail to do so.
Absolute discharge
- Lowest form so sentence. Imposed to reflect triality of offence. Effectively no punishment.
Conditional discharge
- Condition is if defendant commits another offence during period specified, they can be re-sentenced for original offence.
Fines
- Both courts impose a fine,
- Imposed on any offence unless specifically prohibited by statute.
- Most common type of sentence given.
Community order
- To rehabilitate defendant in community.
- Must be over 18 and must be punishable by imprisonment.
- Maximum length of community order is 3 years. – must have one requirement.
- Requirements must avoid conflict with offenders’ religious beliefs or interference with offenders’ times of work or education.
- Once completed – probation service may apply for order to be discharged.
Community order requirements
Unpaid word – 40-300 hours within 12 months
Rehabilitation activity requirement – attend appointments and participate in activities –
Programme participates in accredited programme
Prohibited activity = not do certain things
Curfew – stay at specific place
Exclusion requirement – not enter a specific area
Consequences of breach
- Warned failure is unacceptable
- If they fail without a reasonable excuse – breach proceedings may be brought
- If offender admits breach – must deal in Sch 10 SA
- By amending order to make it onerous
- Find offender up to 2500
- Court is able to extend once only the period of community order
- Can be revoked if willingly and persistently breached.
Custodial sentences?
Discretionary sentences
Most imprisonable offences carry a discretionary custodial sentence
- Must be for shortest time possible to reflect purpose of sentence
A determinate custodial - For a defined period of time
- Half in custody half on license.
- Life sentence – license for the rest of your life.
- Offences that arise out of same events will attach concurrent sentences
- Consecutive sentences are for offences that need to be punished separately.
- Magistrates can impose 6 months for summary only, and for a single either way and 12 months for 2 or more either way.
- Crown court has unlimited powers of imprisonment. – may still have a maximum power.
- If a defendant has remanded in custody for any period prior to sentence then that period automatically counts towards sentence.
Suspended sentence?
- Does not immediately go into custody - and if they fulfil certain criteria can avoid prison entirely
- Magistrates court may suspect any determinate custodial sentence between 14 days and 6 months
- Crown court may suspend between 14 days and 2 years,
- A suspended sentence has 3 elements
- Custodial term – how long it would have been operation period – how long its suspended for
- Supervision period = how long defendant must be supervised by probation service.
Minimum sentence for a third domestic burglary or third class a drugs offence - Some minimum sentence imposed unless exceptional circumstances
- 7 years for third class a drug trafficking
- 3 years for a third domestic burglary
- Five years for certain firearm offences
- 6 months for a second offence of possessing a weapon
Extended determinate sentence?
- Imposed in certain types of cases where court has found offender is dangerous.
- S254 and 257
- Extension must be at least 1 year
- Not exceed 5 years un case of specific violent offence
- Not exceed 8 years in specified sexual offences or terrorism.
- Cannot be more than maximum term permitted for offence.
Mandatory life sentence for murder - Court has no discretion for murder.
- Court will fix a minimum term – once that minimum term has expired defendant can apply for release to parole board who has ultimate discretion when d is realised. If released remains on license for life.
