Sentencing Flashcards
Purposes for sentencing - S.57(2) SA 2020
Punishment of offenders
Reduction of crime
Reform / rehabilitation of offenders
Protection of public
Reparation by offenders to their victims
Courts Power over sentencing
CROWN COURT –> up to maximum statutory or common law sentence and unlimited fines
MAGISTRATES COURT
> Max 6 months custody for 1 “either way” offences or max 12 months custody for 2 or more either way offences
> Max 6 months custody for “summary” offences
> Unlimited fines for most offences in Magistrates’ Court
Assessing Offence Seriousness: Culpability and Harm
To determine the appropriate sentence you need to determine the serious of the offence
CULPABILITY + HARM = SERIOUSNESS
SECTION 63 SA 2020
1) offender’s culpability in committing the offence
2) any harm which the offence causes, intended to cause and might forseeably have causes
Assessing Offence Seriousness - STATUTORY AGGRAVATING FACTORS
Something that makes a crime more serious
Statutory aggravating factors include:
> Offence committed on bail (S.64 SA 2020)
> PREVIOUS CONVICTIONS (S.65 SA 2020)
> Hostility (S.66 SA 2020)
THE more relevant the previous convictions are to the current offence AND how recent the previous convictions are = the more serious the sentence / offence will be
Assessing Offence Seriousness - STATUTORY MIGITATING FACTORS
Something that makes a crime less serious
INCLUDES:
REDUCTION IN SENTENCE FOR GUILTY PLEA (S.73 SA 2020) –> Court must consider stage at which the indication of a guilty plea was given and the circumstances in which the indication was given:
> Max reduction 1/3 of sentence for guilty plea at the earliest opportunity.
> Max 1/4 after the first stage of proceedings
> Max 1/10 on the first day of trial
REDUCTION IN SENTENCE FOR ASSISTANCE TO PROSECUTION (S.74 SA 2020)
> Based on guilty plea and written agreement to assist the prosecution.
GENERIC FACTORS INDICATING HIGHER CULPABILITY AND HIGHER HARM
HIGHER CULPABILITY:
1) Failure to respond to warnings
2) Hostility to minority
3) Targeting vulnerable
4) Gratuitous violence or damage
HIGHER HARM:
1) Multiple victims
2) Serious physical or psychological effect on victim, even if unintended
3) Vulnerability of victim
FACTORS LOWERING SERIOUSNESS THROUGH CULPABILITY AND HARM
LOWER CULPABILITY:
1) Mental illness or disability
2) Minor role in the offence
3) Financial ‘need’ rather than ‘greed’
LOWER HARM
1) Low value of property stolen / damaged
2) Limited impact on victim
3) Victim of violence has pre cons for violence
What types of sentences are available?
Imprisonment (custody)
Suspended imprisonment
Community Orders
Fines
Compensation orders
Discharges – conditional and unconditional (absolute)
Ancillary Orders
Imposed in addition to the main sentence
E.G.
Compensation - Payable for any personal injury, loss or damage suffered by victim (s.133 SA 2020)
Victim Surcharge - have to pay more money for compensation for victims –> Used to fund “victim services”
Imposing a custodial (prison) sentence - S.230 SA 2020
CUSTODY THRESHOLD TEST:
Is an offence so serious that neither a fine nor community penalty is justified?
i.e. is prison is a last resort – custodial sentence can only be imposed if the above test is satisfied (and custody must be for the shortest time commensurate with the seriousness of the offence (s.231(2) SA 2020)).
Where the court imprisons it must consider discount for guilty plea (s.73 SA 2020)
Life sentences
Life sentence for very serious offences; mandatory life sentence for murder.
Where a court passes a life sentence it must set a minimum term to be served (unless the court is required to make a whole life order), s.321 SA 2020.
Once the minimum term is served D will be eligible to be considered for release by the parole board. If released D will be on “licence” for life
Release on licence - s.244 CJA 2003
If sentenced to more than 12 months custody (a “fixed term” prisoner), half of the term will be served in prison, and the rest on licence
The Release of Prisoners Order 2020:
* Those serving a sentence of 7 years or more for a relevant violent or sexual offence must serve a minimum of two thirds of their sentence in prison.
* Special arrangements for those convicted of terrorism offences
Community Orders - s.204 SA 2020
COMMUNITY ORDER THRESHOLD:
Test: is the offence serious enough to justify a community sentence?
The severity: are restrictions on liberty in a community sentence equal with the seriousness?
The court has a menu of requirements to choose from e.g. unpaid work, curfew & tag, drug rehabilitation etc.
The order must be the most suitable one for the offender
Duration: Maximum 3 years
Fines
Most common form of punishment
Crown Court = unlimited
Magistrates = unlimited
Court must take into account the ability to pay (rich pay more)
May be imposed in addition to other sentences
Can be paid in installments / deducted from earnings.
Discharges
Conditional = subject to a requirement not to offend for a specified period (not more than 3 years)
SO Can be resentenced if convicted of another offence within the specified period.
Absolute = where punishment is not necessary (the fact of the conviction is sufficient)
No further action is taken.
