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Criminal Law and Practice > Sentencing > Flashcards

Sentencing Flashcards

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1
Q

What are the purposes of sentencing for those aged 18 and over?

A

a) punishment of offenders

b) reduction of crime (including its reduction by deterrence)

c) the reform and rehabilitation of offenders

d) the protection of the public and

e) the making of reparation by offenders to persons affected by their offences

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2
Q

When does sentencing happen?

A

After a defendant has been convicted. Either by:

  • defendant entering a guilty plea

OR

  • being found guilty after a trial
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3
Q

Where can a defendant be sentenced for summary only offences?

A

Only ever in the magistrates’ court

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4
Q

Where can the defendant be sentenced for either-way offences?

A

Can be sentenced in either court apart from the magistrates court where the defendant is sent for trial in the Crown Court

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5
Q

Where can a defendant be sentenced for indictable only offences?

A

Only ever the Crown Court

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6
Q

On what basis is a defendant sentenced?

A
  • if found guilty after trial, then on basis of prosecution’s case
  • if he pleads guilty then either on prosecution case if undisputed or on written basis of defendant if disputing prosecution’s case which is then accepted by court
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7
Q

What happens where the defendant pleads guilty but disputes the basis for that guilt?

A
  • D enters a guilty plea but on a written basis
  • prosecution then need to decide if they find that basis acceptable (as does the court)
  • if neither the prosecution does not accept defendant’s basis then case will proceed to a Newton hearing if the defendant’s basis will make a material difference to sentence
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8
Q

What is a Newton hearing?

A

A hearing by which the court will determine the factual basis upon which the sentence should pass.

D must have pled guilty but disagrees with basis of prosecution’s case and the disagreement would mean a material difference to sentencing

Trial is only in front of a judge including at Crown Court

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9
Q

What happens at a Newton trial?

A
  • prosecution makes opening speech and calls evidence in usual way including witnesses
  • witnesses can be cross-examined
  • D can give evidence and call witnesses
  • Both parties can give closing speeches
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10
Q

What are the potential outcomes of a Newton trial?

A
  • if court satisfied that prosecution has proved their version of facts beyond reasonable doubt, then D will be sentenced on prosecution’s basis
  • if court is not satisfied beyond reasonable doubt, then D will be sentenced on D’s basis
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11
Q

What further consequence may D being sentenced on prosecution basis after Newton trial have?

A

It may mean D loses some of the credit they receive for entering guilty plea.

Guideline indicate that credit should be halved but could be more if court’s time wasted further such as by calling witnesses

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12
Q

What is meant that the court should consider the totality when sentencing?

A

Where sentencing D for multiple offences, the court should consider what the total sentence should be and arrive at one that is just and proportionate

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13
Q

What is a consecutive sentence and when will it likely be appropriate?

A
  • when the sentences run one after the other
  • appropriate when the offences arise out of different and separate facts
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14
Q

What is a concurrent sentence and when will it likely be appropriate?

A
  • when the sentences run at the same time
  • appropriate when offences arise out of the same facts
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15
Q

Why might the court defer a sentence and for how long?

A

Maximum of six months

Time for D to prove that the have changed or that offence was a one-off

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16
Q

When can deferring sentencing extend beyond maximum of six months period?

A

When magistrates’ court defers sentence for a period at the end of which they commit to the Crown Court for sentence, the Crown Court then has the option of deferring for a further six month period

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17
Q

Are the magistrates or crown court judges obliged to give indication of sentence to D if requested?

A

No

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18
Q

What happens if D asks for indication of sentence in Magistrates court and they exercise discretion to give one?

A

Magistrates can indicate if sentence would be custodial or non-custodial

Magistrates would be bound by the indication if D pleads guilty

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19
Q

What happens if D asks for indication of sentence in Crown court and they exercise discretion to give one? (Goodyear indication)

A

D can ask for indication any time before jury returns their verdict

Before asking for indication D must:

  • either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court
  • give clear instructions to their counsel that D wishes to ask for advance indication of sentence
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20
Q

What is the primary factor the courts will consider in determining sentence?

A

The seriousness of the offence

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21
Q

How is seriousness to be assessed?

A

By considering culpability and harm

Harm which offence cause, was intended to cause or might foreseeably have caused

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22
Q

What threshold must be passed for imposing a custodial sentence?

A

The offence or combination of offences must be so serious that neither a fine alone nor community sentence can be justified for the offence

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23
Q

What threshold must be passed for imposing a community order?

A

The offence or combination of offences must be serious enough

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24
Q

How is culpability to be assessed?

A

Essentially blameworthiness

Consider:

  • offender’s role
  • level of intention
  • premeditation
  • extent and sophistication of planning
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25
Q

How is harm to be assessed?

A

Assessed by considering damage caused to victim

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26
Q

When can the court depart from sentencing guidelines?

A

When it is satisfied that it would be contrary to the interests of justice to do so

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27
Q

What sentencing guidelines are there?

A

For significant offences:

  • sentencing guidelines for use in the magistrates’ courts
  • sentencing guidelines for use in the Crown Court

For children and young people - sentencing children and young people

For general principles - General guideline: overarching principles

(Crown court judges may also refer to Court of Appeal judgments)

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28
Q

What will happen at a sentencing hearing?

A
  • prosecution open facts, make submissions and applications
  • defence mitigate
  • judge passes sentence
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29
Q

What is the prosecution’s role at sentencing hearings?

A

Reminding the court of:

  • any previous convictions
  • any ancillary orders prosecution seeks
  • any relevant sentencing guidelines
  • any general sentencing issues to ensure lawful sentence is passed
  • any victim impact statement

NOT to tell court or suggest to the court what the ultimate sentence may be

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30
Q

What is the role of defence at sentencing hearing?

A
  • to ensure lawful sentence is passed
  • must put forward case consistent with instructions (mitigating factors) but must not mislead the court
  • defence can ask for pre-sentence report
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31
Q

What is a pre-sentence report?

A

Report that assists the court in determining most suitable method of dealing with offender

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32
Q

When will a court not have to obtain a pre-sentence report before passing a custodial or community sentence?

A

If it considers it unnecessary

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33
Q

What other reports must court obtain if considering a sentence pursuant to the Mental Health Act 1983?

A

Must receive evidence from two medical practitioners stating that in their opinion the defendant is suffering from a mental disorder

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34
Q

What approach must the court take according to the Code?

A

1) determine offence seriousness (culpability and harm)

2) consider aggravating factors (ie increasing seriousness) both statutory (eg previous conviction, on bail, racial, religious, disability or sexual aggravation) and other non-statutory matters (eg alcohol, abuse of power, breach of trust)

3) considering mitigating factors (ie those reducing seriousness) eg those relating to the offence such as provocation or excessive self-defence, and those relating to the offender, such as positive character, offender’s vulnerability, mental health, remorse or other personal mitigation

4) consider any assistance given to the prosecution

5) consider the appropriate reduction for any guilty plea

6) consider totality

7) appropriate ancillary orders must be considered eg compensation, disqualification, forfeiture, restraining order, costs, surcharge, criminal courts charge

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35
Q

What three sentencing ranges do the guidelines normally set out for each offence?

A
  • highest level - greater culpability and greater harm
  • middle level - greater culpability and lesser harm or greater harm and lesser culpability
  • lowest level - lesser culpability and lesser harm
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36
Q

What will credit for entering a guilty plea depend on?

A

When the guilty plea was entered

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37
Q

What credit will D get for entering guilty plea at first stage in proceedings, after first stage and on day of trial?

A
  • first stage - maximum 1/3
  • after first stage - maximum 1/4
  • on day of trial - maximum 1/10
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38
Q

What must the court do when passing sentence?

A
  • explain to D in non-technical language the sentence has been passed
  • identify the sentencing guidelines that it followed or why it decided not to follow guidelines that existed
  • explain why the defendant passes the custody threshold if a custodial sentence is passed
  • explain what credit has been given for a guilty plea and why it is at that level
  • set out any particular aggravating and mitigating factors that the court considered in arriving at sentence
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39
Q

What non-custodial sentences can a court pass?

A
  • absolute and conditional discharge
  • fines
  • compensation orders
  • disqualification
  • forfeiture deprivation of property etc
  • restitution and restoration
  • orders for offenders aged under 18
  • community orders
  • youth rehabilitation orders
40
Q

What custodial sentences can a court pass?

A
  • discretionary custodial sentences
  • minimum sentences for particular offences
  • life sentences
  • dangerous offenders
  • suspended sentence of imprisonment
  • detention for adults aged under 21
  • detention for offenders aged under 18
41
Q

What is a bind over?

A

A person is bound by the court to keep the peace for a sum of money that they forfeit if they fail to do so

42
Q

What courts can impose a bind over and when?

A

Sentence open to both courts and can be imposed on someone following acquittal, instead of guilty plea or trial, or even witness.

43
Q

What is an absolute discharge?

A

Lowest form of sentence available to both courts.

Effectively no punishment at all which will reflect triviality of offence, circumstances in which offender came to be prosecuted or special factors relating to the offender

44
Q

What is a conditional discharge?

A

Discharge with condition that if D commits another offence during period specified they can be re-sentenced for the original offence and sentenced for the new offence.

Specified period must be no more than three years

45
Q

When is a fine due?

A

Due immediately in whole unless court agrees to instalment payments

46
Q

What limits do the courts have in imposing fines?

A

Both got unlimited fining power

47
Q

When is a fine not generally imposed?

A
  • in addition to hospital order
  • alongside discharge for single offence
  • alongside imprisonment
48
Q

What happens if D fails to pay fine?

A

Last resort D can be sentenced to a period of imprisonment in default

49
Q

What is a community order?

A

Sentence that requires a defendant to comply with one or more requirements to punish and/or rehabilitate D in the community

50
Q

What requirements are there for a community order to be made?

A
  • offence must be serious enough to warrant the making of such an order
  • D must be over 18
  • Offence must be punishable with imprisonment
51
Q

What features of a community order are there?

A
  • maximum length of community order is three years
  • community order must have at least one requirement, including a punitive element unless a fine is imposed or there are exceptional circumstances that would make it unjust
  • requirement(s) must avoid conflict with the offender’s religious beliefs and/or interference with the offender’s times of work and/or education
  • court may have regard to any period spent on remand or qualifying electrically monitored curfew, when determining the restriction(s) on liberty which such a sentence imposes
  • court must specify a period of operation for Community Order and that in effect is an overall limit within which the requirements must be completed, unless a specific time period is designated for a particular requirement
52
Q

What would an unpaid work requirement for community order be?

A

Order to carry out unpaid work as directed by the Probation Service for certain amount of hours within certain amount of time

53
Q

What would a rehabilitation activity requirement for community order be?

A

Attend appointments or participate in activities as directed by the Probation Service for maximum number of days as instructed

54
Q

What would a programme requirement for community order be?

A

Participate in an specified accredited programme (eg anger management, alcohol treatment) for specified number of days

55
Q

What would a prohibitive activity requirement for community order be?

A

Not to do certain things as specified by the court such as attend a football match (may be specified by days, time, or length of prohibition)

56
Q

What would a curfew activity requirement for community order be?

A

Stay at the specified place (usually a specific address) during the times specified (maximum term of 12 months)

57
Q

What would an exclusion requirement for community order be?

A

Not to enter a specific area or keep away from a particular person (maximum period two years)

58
Q

What would a residence requirement for community order be?

A

Live at particular address

59
Q

What would a foreign travel prohibition requirement for community order be?

A

Prohibit travelling on a particular day or days or for particular period to a particular country or countries (maximum period 12 months)

60
Q

What would a mental health treatment requirement for community order be?

A

Undergo mental health treatment

61
Q

What would a drug rehabilitation requirement for community order be?

A

Submit to treatment and take drug tests as and when required

62
Q

What would an alcohol treatment requirement for community order be?

A

Attend treatment under the direction of a specified person to reduce or eliminate their dependency on alcohol

63
Q

What would an alcohol abstinence and monitoring requirement for community order be?

A

Abstain from consuming alcohol or not consume alcohol so there is more than a particular level of alcohol (maximum 120 days)

64
Q

What would an attendance centre requirement for community order be?

A

For Ds 18-24 only. Attendance centres punish the offender by loss of their time for specified time but also provides a disciplined learning environment

65
Q

What would an electronic monitoring requirement for community order be?

A

Apply when D must be subject to a community order requirement that must be monitored by an electronic tag

Must be imposed where curfew or exclusion requirement imposed unless the court considers it inappropriate to do so.

66
Q

What are the consequences of failing to comply with community order with no reasonable excuse?

A

1) they must be warned that their failure is unacceptable

2) if they fail to comply again without reasonable excuse, breach proceedings will be instigated against the offender

67
Q

What will happen if breach proceedings have been instigated?

A

The offender will be brought back to court and have the breach put to them.

They can either admit or deny the breach.

If they deny the breach there will be a trial as to whether there was a failure without reasonable excuse.

68
Q

What are the consequences of the court finding that there was a breach following denial?

A

Court must deal with the breach in one of the following ways:

  • by amending the order to make it more onerous
  • by fining the offender up to £2,500
  • by revoking the community order and re-sentencing the offender for the offence. The extent the offender has complied with the order must be considered
69
Q

By how much and how many times is the court allowed to extend the community order?

A

They can extend it only one

And can extend it six months beyond the usual three-year limit if necessary

70
Q

What may the court do where the offender has wilfully and persistently breached the requirements of the community order?

A

The court, if the decide a re-sentence is appropriate can impose a custodial sentence not exceeding six months even where the original offence was not punishable with imprisonment

71
Q

What must the court be satisfied of before passing a custodial sentence?

A

Must be satisfied that the offence or offences are so serious that neither a fine nor a Community Order can be justified

72
Q

Are courts aiming for the longest or shortest possible time when sentencing?

A

The shortest possible time to reflect the purpose of the sentence (such as the punishment of offenders, reduction of crime, reform and rehabilitation of offenders, protection of the public and the making of reparation by offenders)

73
Q

What is a determinate custodial sentence?

A

A prison sentence for a defined period of time

74
Q

What are the limits to the magistrates’ court power to impose prison sentences?

A
  • 6 months for a summary only offence
  • 6 months for a single either way offence
  • 12 months for two or more either way offences
  • any statutory maximum
75
Q

What are the limits on the Crown Court’s sentencing powers?

A

Unlimited powers of subject to the statutory maximum for each offence

76
Q

What effect does being remanded in custody have on any sentence?

A

Any period in remand prior to sentence automatically counts towards sentence

77
Q

What effect will curfew conditions have on sentencing?

A

Where the number of hours under curfew was at least 9, they are entitled to credit it towards their sentence

This is not automatic though and court must expressly state that it counts.

Each day on bail counts as half a day in prison rounded up to nearest full number

78
Q

What is a suspended sentence of imprisonment?

A

D’s offending crosses custody threshold but D does not go into immediate custody and if they fulfil certain conditions can avoid prison entirely

79
Q

What power do the different courts have to pass suspended sentences?

A
  • magistrates’ court may suspend any determinate custodial sentence of between 14 days and six months
  • crown court may suspend any determinate custodial sentence of between 14 days and 2 years
80
Q

What three elements will a suspended sentence have?

A
  • custodial term - how long a custodial term they would have received but for it being suspended
  • operational period - how long the custodial term is suspended for - must be between six months and two years
  • supervision period - how long the defendant must be supervised by the Probation Service for. This is optional, but if used, must be between six months and two years and equal to or shorter than the operational period
81
Q

What happens if D is in breach of their suspended sentence?

A

They must be warned of their first breach and if they commit another breach within 12 months of a warning, breach proceedings will then be instituted

If breach is proven/admitted then custodial sentence will be activated unless unjust to do so, taking into account compliance of D prior to breach

82
Q

What is the minimum sentence for third class A drug trafficking offence?

A

Seven years’ imprisonment

83
Q

What is the minimum sentence for a third domestic burglary?

A

Three years

84
Q

What is the minimum sentence for a second offence of possessing a weapon?

A

Six months

85
Q

What is the minimum sentence for threatening with a weapon?

A

6 months

86
Q

What is the effect of D entering guilty plea at the first opportunity on third class A drug offence?

A

Reduction must be such that final sentence is still at least 80% of the minimum seven-year term.

Unless the court states that it would be unjust to pass the minimum term, whereby the final sentence can be below the 80% of the prescribed minimum term

87
Q

What is the maximum reduction for a guilty plea in relation to a third domestic burglary?

A

Maximum of 20% reduction on a guilty plea

88
Q

What is an extended determinate sentence?

A

Imposed for certain types of offences (specified violence, sexual or terrorism offences)

AND

Court finds the offender is dangerous

89
Q

What does an extend determinate sentence extend?

A

The licence period is extended not the period of custody

90
Q

What are the rules in relation to the extension period?

A
  • must at least be one year
  • must not exceed 5 years in the case of specified violent offences
  • must not exceed 8 years in the case of specified sexual offence or a specified terrorism offences
  • overall EDS imposed cannot exceed maximum term permitted for the offence
91
Q

When may a prisoner serving an EDS apply for parole?

A

At the 2/3 point of the custodial term and must be released at the end of the custodial term

92
Q

What sentence must the court pass for murder?

A

A mandatory life sentence

Only crime that carries one

93
Q

What minimum terms may a court pass in relation to a life sentence?

A
  • whole life order
  • 30 years
  • 25 years
  • 15 years
94
Q

What happens when the minimum life term set by the court has expired?

A

D can apply for release to the Parole Board who has ultimate discretion as to when D is released

95
Q

What happens if someone serving a sentence for murder is released?

A

They are on licence for life

96
Q

When will the court consider a life sentence for dangerous offenders?

A

Where an offender is:

  • convicted of an offence set out in schedule 19 of the sentencing code and
  • the court is of the view that the offender is dangerous
  • the offence justifies a life sentence
97
Q

When will the court consider life for second listed offence?

A

Where an offender is:

  • convicted of offence set out in schedule 15 of the Sentencing Code and
  • both the sentence condition and the previous conviction condition are satisfied
  • unless it would be unjust to impose a life sentence

Criminal Law and Practice (20 decks)

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