Sentencing Flashcards
Which Legislation governs Sentencing?
The Sentencing Act (“SA”) 2020.
Parts 2 to 13 constitute the Sentencing Code (the “Code”).
What are the Five Purposes of Sentencing?
- Rehabilitation: To help Offenders to change their behavior.
- Protection of the Public: To prevent Offenders from causing further harm.
- Reduction of Crime: To discourage Recidivism and others from Offending.
- Reparation to Victims: To compel Offender to make amends to their Victims.
- Proportionate Punishment: To impose a penalty proportionate to the Offence.
All Purposes are weighed equally, although some may take precedence depending on the Offence and Offender’s circumstances.
What are the Two Types of Maximium Sentence?
- Court Maximum: The highest Sentence a given Court can prescribe.
- Statutory Maximum: The highest Sentence any Court can prescribe for a given Offence.
What is the Procedure for Submitting a Guilty Plea while Disputing Facts?
Step 1 — Defence Basis:
- The Defence submits a Written Basis of Plea, disputing Facts that would affect the Sentence’s severity.
Step 2 — Prosecution Basis:
- The Prosecution will decide whether it accepts the Defence Basis.
- If it does, the Basis will proceed to the Judge.
- If it does not, it will submit a Basis of its own and move the issue to the Judge.
Step 3.1 — Judicial Evaluation, Basis Accepted:
- The Judge considers whether the Defence Basis is real and true.
- If it does, it will Sentence on the Defence Basis.
- If it does not, it will call a Newton Hearing.
Step 3.2 — Judicial Evaluation, Basis Rejected:
- The Judge considers whether the Defence Basis is absurd.
- If it does, it will Sentence on the Prosecution Basis.
- If it does not, it will consider whether the Prosecution’s objection is material to Sentencing.
- If it does, it will call a Newton Hearing.
- If it does not, it will Sentence on the Defence Basis.
What is a Newton Hearing?
A Hearing to resolve a Factual Dispute arising from a Guilty Plea that is relevant to Sentencing.
In the Crown Court, this take place without the Jury.
What is the Procedure for a Newton Hearing?
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Prosecution Evidence: The Prosecution presents its arguments, Evidence, and Witnesses.
- The Prosecution must prove Beyond a Reasonable Doubt the Prosecution Basis.
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Defence Evidence: The Defence presents its arguments, Evidence, and Witnesses.
- Cross-Examination of Prosecution Witness is permitted.
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Submissions and Ruling: The Parties make submissions, and the Judge reaches a decision.
- If the Prosecution fails to prove its Basis, the Judge will Sentence on the Defence Basis.
What is the Impact of an Unsuccessful Newton Hearing for the Defendant?
The Sentencing Credit it received for Pleading Guilty is halved, with steeper penalties possible if Witnesses were called.
What is the Totality Principle?
When Sentencing for multiple Offences, the Court must ensure the Total Sentence is just and proportionate.
The Court will apply this Principle when determing whether to pass Concurrent or Consecutive Sentences.
Can the Court Defer Sentencing?
Yes, by up to 6 months, in order to:
- Observe the Defendant’s conduct in the interim; and
- Better inform the Sentencing decision.
When is an Indication of Sentence available in the Magistrates’ Court?
During the Allocation of an Either-Way Offence.
- In this case, the Defendant is entitled to seek an Indication.
- Although the Magistrate need not accept, if it does, it will only Bind if the Defendant Pleads Guilty immediately after.
When is an Indication of Sentence available in the Magistrates’ Court?
This is otherwise called a ‘Goodyear Indication’.
- The Parties agree on the Facts or a Written Basis; and
- The Defendant clearly instructs counsel to seek an Indication.
If granted, it indicates the Maximum Sentence if a Guilty Plea is entered at that Stage.
What is the Effect of a Goodyear Indication?
- The Proscution cannot appeal the Indication.
- The Judge cannot pass a Sentence exceeding the Indication.
What does the Court consider when determining a Sentence?
- The Offender’s Culpability in committing the Offence.
- The Harm the Offence:
- Caused.
- Was intended to cause.
- May foreseeably have caused.
What constitutes Culpability?
Blameworthiness, as shown by:
- The Offender’s role in the Offence.
- The Offender’s level of intention.
- The Offence’s level of planning and sophistication.
Factors inherent to the Offence itself should not be considered when assessing Culpability.
What constitutes Harm?
Damage caused to the Victim or Society, including:
- Physical Damage.
- Economic Damage.
- Emotional Distress.
- Psychological Damage.
When will the Court decide to Impose a Community Sentence?
The Offence(s) is serious enough to warrant such a Sentence
When will the Court decide to Pass a Custodial Sentence over a Non-Custodial?
- The Offence(s) is so serious that neither a Fine alone nor a Community Sentence can be justified.
- The Sentence must be for the shortest Term that reflects:
- The Offence’s seriousness; and
- The Purpose(s) for Sentencing.
Must Courts follow Sentencing Guidelines?
Yes, unless the Interests of Justice demand others.
What is the Procedure for Sentencing?
1 — Prosecution Case:
- The Prosecution will open with the Facts and make its submissions and applictions. It may:
- Recall Prior Convictions.
- Requesting Ancillary Orders.
- Present Victim Impact Statements.
- Highlight relevant Sentencing Guidelines.
- The Prosecution should not suggest a Sentence.
2 —Defence Mitigation:
- The Defence presents factors in migitaiton of the Prosecution Case. Accordingly, it may request a Pre-Sentence Report.
- It must not mislead the Court.
3 — Sentencing:
- The Judge considers both Parties’ submissions and passes a Sentence.
What is a Pre-Sentence Report?
A Report on the Offender’s background, attitude, and suitability for specific programmes.
- This is mandatory prior to a passing Custodial or Community Sentence, unless deemed unnecessary.
It is prepared by Probation Officers and involves meeting the Defendant and discussing the offence.
At times, Medical or Psychiatric Reports may be useful to the Court or the Defence.
When is Medical Evidence required to a Pass a Sentence?
When the Sentence concerns the Mental Health Act 1983, in which case, Evidence from two Medical Practitioners is necessary.
What is the Sentencing Code’s Prescribed Approach to Sentencing?
1 — Seriousness:
- Evaluate Culpability and Harm to determine the Offence’s Category.
2 — Aggravating Factors:
- Consider factors that increase Seriousness to increase the Starting Point.
3 — Mitigating Factors:
- Consider factors that decrease Seriousness to decrease the Starting Point.
4 — Offender Assistance to Prosecution:
- Weigh any aid given by the Offender to the Prosecution.
5 —Sentencing Credit:
- Adjust the Sentence based on the Guilty Plea’s timing.
6 — Totality Principle:
- Apply the Totality Principle.
7 — Ancillary Orders:
- Consider the effect of Ancillary Orders on fairness.
What are the Three Offence Categories?
Category 1:
- Greater Culpability, Greater Harm.
Category 2:
- Greater Culpability, Lesser Harm.
- Lesser Culpability, Greater Harm.
Category 3:
- Lesser Culpability, Lesser Harm.
What are the Statutory and Non-Statutory Aggravting Factors?
Statutory Factors:
- Previous Convictions.
- Offence Committed While on Bail.
- Racially or Religiously Aggravated Offences.
- Hostility Based on Sexual Orientation or Disability.
Non-Statutory Factors:
- Impact on Victim.
- Use of a Weapon.
- Location and Timing.
- Group or Gang Activity.
- Professional Offending.
- Abuse of Trust or Power.
- Planning and Premeditation.
- Particularly Vulnerable Victims.