Sentencing

Question 1

What is the principle of seriousness (what must the court consider in passing sentence)?

Answer 1

A. D’s culpability, and
B. any harm the offence caused/intended to cause!might foreseeably have caused

Question 2

4 statutory aggravating factors (court MUST treat the offence as more serious):

Answer 2

1. previous convictions
2. if offence committed while on bail for another offence
3. racial/religious motive
4. hostility based on sexuality/disability

Question 3

Discretionary discounts for guilty pleas

Answer 3

At 1st stage of proceedings (1st hearing in Mag., or indication and then guilty plea at 1st CC hearing): 1/3
Later (PTPH in CC): 1/4
First day of trial: 1/10
During trial: 0 to 1/10

Question 4

What is the starting point in sentencing?

Answer 4

Determining the offence category:
1. greater harm + enhanced culpability
2. greater harm or enhanced culpability
3. lesser harm + lower culpability
This determines a sentence range, which is then shaped

Question 5

A concurrent sentence is usually used if…

Answer 5

Offences arise out of same incident, or are similar offences, especially if committed against the same person

Question 6

When MUST the court obtain a pre-sentence report?

Answer 6

If deciding on whether the custody threshold/threshold for a community sentence was passed, and if so, what the duration/requirements should be
UNLESS the report would be unnecessary

Question 7

Threshold test for custody

Answer 7

Custody cannot be imposed unless the offence/associated offences were so serious that neither a fine nor community sentence can be justified

Question 8

Must custody be imposed if the threshold test is met?

Answer 8

No- a guilty plea/mitigation can make custody inappropriate

Question 9

What MUST the court impose if D is a “dangerous offender”?

Answer 9

• automatic life sentence,
• discretionary life sentence, or
• extended prison sentence

Question 10

When will D be automatically released from prison?

Answer 10

Halfway through the sentence
Then is on licence until the end of the sentence (supervised for 12 months post-release)

Question 11

Who will not automatically be released halfway through the sentence?

Answer 11

An offender of “particular concern”
Must apply for parole- he may be released at some point after half way through the sentence

Question 12

When is a suspended sentence used?

Answer 12

When the custody threshold is met, but circumstances justify suspension

Question 13

For how long can custody of 2 weeks- 2 years be suspended?

Answer 13

6 months - 2 years

Question 14

D won’t go into custody when he’s on a suspended sentence, unless…

Answer 14

He breaches a requirement or commits a further offence, and court orders prison

Question 15

Threshold test for community orders

Answer 15

It cannot be imposed unless the offence/associated offences were serious enough to warrant it

Question 16

Consequences of breaching a community order

Answer 16

1st breach: warning
2nd breach: must appear before the court that imposed the sentence

Question 17

2 options court has when D pleads guilty but disputes the prosecution’s facts:

Answer 17

1. accept D’s facts, or
2. order a Newton hearing

Question 18

How can a Newton hearing be avoided?

Answer 18

D presents a “basis of plea”
Prosecution and judge accept it
(even if prosecution accepts it, judge can still reject it!)