Sentencing Flashcards
What must the court have regard to when it passes sentence on an adult offender (no mandatory life sentence requirement)?
The purposes of sentencing
What are the purposes of sentencing?
- 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
When do the purposes of sentencing factors not apply?
When there is a mandatory sentence requirement
What must the court, when passing sentence, follow?
The sentencing guidelines
When can the court depart from the sentencing guidelines?
Only when it is satisfied that it is in the interests of justice to do so
How do the court determine the seriousness of the offence?
Through harm and culpability
What does culpability mean?
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
What is meant by harm?
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
What are examples of statutory aggravating factors?
- relevant previous convictions
- offence committed on bail
- hostility based on specific characteristics
- assaults on emergency workers
What are some other aggravating factors?
- commission of the offence whilst intoxicated
- part of a group
- planning
- profit
- presence of children
- weapons
What are offences taken into consideration?
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
When should TICs not be accepted?
- 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
What is mitigation?
The defence advocate is aiming to persuade the court to reduce the sentence from the original starting point
What are some mitigating factors relating to the offender?
- no previous convictions
- good character
- genuine remorse
- co-operation with the police
- early guilty plea
What are the reductions for a guilty plea?
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
What does it mean by concurrent and consecutive sentences?
Concurrent - at the same time
Consecutive - one after the other
When is it appropriate for a concurrent sentence?
- offences arise out of the same incident or facts
- series of offences of the same or similar kind
When is it appropriate for a consecutive sentence?
- 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
What is the totality principle?
The court must assess the overall criminality of the offender and pass a sentence which is just and proportionate in the circumstances
What are the limbs of totality?
- 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
- it is necessary to address both the offending behaviour and the factors specific to the offender
The courts must not pass a custodial sentence unless what?
The offence is of sufficient severity and where an appropriate non-custodial sentence cannot be justified
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?
2 years
What are the maximum lengths of custodial sentences in the mags court?
- single summary only offence - 6 months
- two or more summary only offences - aggregate must not exceed 6 months
- single either way offence - 6 months
- two or more either way offences - aggregate must not exceed 12 months
When will an offender be on licence?
When they have served 1/2 of their custodial sentence
What is a suspended sentence?
A term of imprisonment that does not take effect immediately and the offender is not sent to prison
When a suspended sentence is passed what must the court specify?
The operational period - must be at least 6 months but cannot exceed 2 years
What are examples of community orders?
- unpaid work
- rehabilitation activity requirement
- curfew
- electronic monitoring
- drug/alcohol treatment requirement
What must the court identify in relation to community orders?
What band is applicable to the offender - low, medium or high
When is a newton hearing held?
Following a guilty plea where the is a factual dispute between the prosecution and the defence
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?
The judge must favour the facts advanced by the defence and sentence accordingly
