Sentencing Flashcards
What are the 5 purposes of sentencing under s.57 SA 2020?
- Deterrence of offenders;
- Reduction in crime
- Rehabilitation and reformation of offenders;
- Protection of the public; and
- Make reparations where appropriate to the complainant.
What is a Newton Hearing?
A newton hearing is used where D pleads guilty on a written basis but takes issue with facts asserted by the prosecution which will make a material difference to sentencing, i.e accepts ABH but disputes how many times they hit the complainant.
What is the outcome of a Newton hearing?
If the prosecution proves its facts beyond reasonable doubt, these are the facts on which sentencing will take place.
D loses some of the credit they receive for pleading guilty.
What is a deferred sentence?
The court may defer a sentence for up to 6 months, giving D time to prove to the court that they have changed or the offence was a one-off. D can then present at court after the deferral to receive a lighter sentence.
How do indications of sentence work in the Mags court?
Where it is an either way offence and the Mags accepts jurisdiction. Can only say whether the sentence will be custodial or not + this becomes binding if D pleads guilty.
How do indications of sentence work in the Crown Court?
Ask for indication before PTPH or before jury return verdict.
Court has discretion to provide indication.
What are the steps to sentencing?
- Determine seriousness of offence (harm + culpability)
* Does Court have power to make custodial sentence or community order? - Default position = sentencing guidelines
- Aggravating factors
- Mitigating factors
- Credit for guilty plea
When does the court have power to pass a custodial sentence?
When the offence is so serious that the court could not justify a community order or fine alone.
When does the court have the power to make a community order?
The offence was serious enough to warrant the making of such an order.
How do you assess the seriousness of an offence?
- Culpability
* Blameworthiness of D, level of intention and planning. - Harm
* Level of damage caused to victim (emotionally, physically, financially).
What is the duty of the prosecution at the sentencing hearing?
To remind the court of:
* Ds previous convictions;
* Sentencing guidelines
* The victim’s impact statement
* Ancillary orders
* Ensure lawful sentence passed.
What are some of the aggravating factors?
- Offence motivated by racism, homophobia, transphobia, ableism or sexism;
- Offence perpetrated against public sector worker;
- Planned and premeditated;
- Repeated or sustained assault;
- Financial gain or high profit (where this is not part of offence, e.g fraud);
- Involvement of a child;
- Influence of alcohol or drugs;
- Group or gang involvement;
- Multiple victims
- Abuse of trust
- Offence committed whilst on bail / license
- Abuse of power
- Attempt to conceal or dispose of evidence
- Use of weapon to frighten or injure victim.
What are some of the mitigating factors?
- Good character / lack of previous convictions
- Youth or age
- Personal mitigation
- Provocation higher than usual
- Minor role
- Mental illness or disability
How much credit does the accused get for a guilty plea?
At plea hearing: 1/3 reduction
After this but before trial: 1/4 reduction
At trial = 1/10 reduction.
What are the 5 types of non-custodial sentence?
- Bind over
- Absolute discharge
- Conditional Discharge
- Fines
- Community order
