Sentencing Flashcards
What are the purposes of sentencing? (s57 SA 2020)
The punishment of offenders, the reduction of crime, the reform and rehabilitation of offenders, protection of the public, and making of reparation by offenders to persons affected by their offences.
Where will summary only pleas/trials be sentenced?
The magistrates court.
When is a Newton hearing needed?
EITHER the basis of plea is acceptable to the crown, and the judge does not accept the basis.
OR basis of plea is not acceptable to the Crown, the judge does not think it is absurd, and it will make a material difference to sentence.
Is the CC jury present at a Newton hearing?
No - the judge will be the arbiter of law and fact.
Standard of proof for prosecution in Newton hearing?
Beyond reasonable doubt.
Consequences if prosecution is able to prove their case beyond reasonable doubt at Newton hearing?
D sentenced on P’s version of facts, and lose some of the credit they receive for pleading guilty (normally halved).
For how long can a court defer sentence?
Up to six months. (if MC defers by 6 months then commits to CC, CC can defer for a further 6 month period).
Can you ask for an indication of sentence in the Magistrates court?
Yes, after it has accepted jurisdiction. Court doesn’t have to give an indication. If it does it can only say whether it would be a custodial or non-custodial sentence.
Only binding if D then pleads guilty.
Can you ask for an indication of sentence in the Crown Court?
Yes - court has discretion.
Can ask before PTPH or before jury return verdict. Before asking, D mustL
Accept the prosecution facts or a written basis of plea must be agreed by the parties and the court, and give clear instructions to their counsel that they wish to ask for an advance indication of sentence.
When a court is considering the seriousness of an offence, what does it need co consider?
The offenders culpability in committing the offence, AND
any harm which the offence caused, was intended to cause, or might foreseeably have caused.
What are the statutory thresholds to justify imposing a custodial order?
s230: Court must not pass custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more other offences associated with it, was SO SERIOUS that neither a fine alone nor a community sentence can be justified for the offence.
What is the statutory threshold for a community order?
The court must not make a community order unless it is of the opinion that the offence or the combination of the offence and one or more offences associated with it was SERIOUS ENOUGH to warrant the making of such an order.
What in basic happens at a sentencing hearing?
Prosecution popen facts, make submissions and applications. Defence mitigate. Judge passes sentence.
What is a pre-sentence report?
To assist the court in determining the most suitable method of dealing with an offender. Must be obtained by court before passing a custodial or community sentence, unless it considers it unnecessary to do so.
What are common aggravating factors?
Previous convictions, offence while on bail, offence motivated by sex, race, religion, disability, all/drugs, gangs, attempting to dispose of evidence, multiple victims, abuse of power etc.
