Sentencing

Question 1

What must the court have regard to when it passes sentence on an adult offender (no mandatory life sentence requirement)?

Answer 1

The purposes of sentencing

Question 2

What are the purposes of sentencing?

Answer 2

• punishment of offenders
• the reduction of crime
• the reform and rehabilitation of offenders
• the protection of the public
• the making of reparation by offenders to those affected by their criminal conduct

Question 3

When do the purposes of sentencing factors not apply?

Answer 3

When there is a mandatory sentence requirement

Question 4

What must the court, when passing sentence, follow?

Answer 4

The sentencing guidelines

Question 5

When can the court depart from the sentencing guidelines?

Answer 5

Only when it is satisfied that it is in the interests of justice to do so

Question 6

How do the court determine the seriousness of the offence?

Answer 6

Through harm and culpability

Question 7

What does culpability mean?

Answer 7

The blameworthiness of the offender ad the role they played in the commission of the offence - assessed in reference to the level of intention and planning

Question 8

What is meant by harm?

Answer 8

It is not just the physical harm which the offender actually caused but also the level of harm intended and harm which might foreseeable have been caused

Question 9

What are examples of statutory aggravating factors?

Answer 9

• relevant previous convictions
• offence committed on bail
• hostility based on specific characteristics
• assaults on emergency workers

Question 10

What are some other aggravating factors?

Answer 10

• commission of the offence whilst intoxicated
• part of a group
• planning
• profit
• presence of children
• weapons

Question 11

What are offences taken into consideration?

Answer 11

Offences the offender has not been convicted of but has admitted committing in addition to what they are being sentenced for and can ask the court to take into consideration when passing sentence

Question 12

When should TICs not be accepted?

Answer 12

• where the TIC is likely to result in a sentence greater than the convicted offence
• it is in the public interest to have a separate prosecution
• the offender would avoid a less severe consequence

Question 13

What is mitigation?

Answer 13

The defence advocate is aiming to persuade the court to reduce the sentence from the original starting point

Question 14

What are some mitigating factors relating to the offender?

Answer 14

• no previous convictions
• good character
• genuine remorse
• co-operation with the police
• early guilty plea

Question 15

What are the reductions for a guilty plea?

Answer 15

1/3 - plea indicated at first stage
1/4 - plea after the first stage
1/10 - plea first day of trial
Sliding scale to 0 after that

Question 16

What does it mean by concurrent and consecutive sentences?

Answer 16

Concurrent - at the same time
Consecutive - one after the other

Question 17

When is it appropriate for a concurrent sentence?

Answer 17

• offences arise out of the same incident or facts
• series of offences of the same or similar kind

Question 18

When is it appropriate for a consecutive sentence?

Answer 18

• offences arise under unrelated facts or incidents
• similar offences but where concurrent sentences would not reflect the overall criminality
• one of more offences qualifies for the statutory minimum sentence and concurrent would undermine this

Question 19

What is the totality principle?

Answer 19

The court must assess the overall criminality of the offender and pass a sentence which is just and proportionate in the circumstances

Question 20

What are the limbs of totality?

Answer 20

1. where sentencing for more than one offence, the sentence should be reflective of all the offending behaviour and be one that is just and proportionate
2. it is necessary to address both the offending behaviour and the factors specific to the offender

Question 21

The courts must not pass a custodial sentence unless what?

Answer 21

The offence is of sufficient severity and where an appropriate non-custodial sentence cannot be justified

Question 22

Where an offender is convicted on indictment of a statutory offence punishable by imprisonment but there is no limit on a max term and no mandatory life sentence, what is the max custodial sentence?

Answer 22

2 years

Question 23

What are the maximum lengths of custodial sentences in the mags court?

Answer 23

1. single summary only offence - 6 months
2. two or more summary only offences - aggregate must not exceed 6 months
3. single either way offence - 6 months
4. two or more either way offences - aggregate must not exceed 12 months

Question 24

When will an offender be on licence?

Answer 24

When they have served 1/2 of their custodial sentence

Question 25

What is a suspended sentence?

Answer 25

A term of imprisonment that does not take effect immediately and the offender is not sent to prison

Question 26

When a suspended sentence is passed what must the court specify?

Answer 26

The operational period - must be at least 6 months but cannot exceed 2 years

Question 27

What are examples of community orders?

Answer 27

• unpaid work
• rehabilitation activity requirement
• curfew
• electronic monitoring
• drug/alcohol treatment requirement

Question 28

What must the court identify in relation to community orders?

Answer 28

What band is applicable to the offender - low, medium or high

Question 29

When is a newton hearing held?

Answer 29

Following a guilty plea where the is a factual dispute between the prosecution and the defence

Question 30

If the judge hears no evidence but listens to submissions from the prosecution and defence in a newton hearing and there is a substantial dispute on the facts what must the judge do?

Answer 30

The judge must favour the facts advanced by the defence and sentence accordingly