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FLK2 - Criminal Practice > Sentencing > Flashcards

Sentencing Flashcards

1
Q

what is a pre-sentence report?

A

a report prepared by the probation service (or social worker/youth offending team for young Ds) to assist the court in determining the most appropriate way to deal with D

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2
Q

when can D ask the probation service to prepare a PSR before plea?

A

D can ask the probation service to prepare a PSR before plea if:
o D has agreed to plead G to offences on facts of P;
o D will cooperate with probation service;
o D is likely to be sentenced in the MC;
o Community order could be passed and PSR is likely to be necessary; and
o D understands that:
 It gives no indication of sentence & the court can impose any sentence;
 The court decide whether to consider any PSR produced; and
 The court can sentence without a PSR if a PSR is unnecessary

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3
Q

when must the court obtain a PSR?

give an example

A
  • Unless the court considers it unnecessary to do so, the court must obtain and consider a PSR before forming an opinion on whether the threshold for imposing a custodial or community sentence has been passed

example

It may be unnecessary if a PSR has already been produced or if it is inevitable D will receive a custodial sentence

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4
Q

re: Newton hearing / basis of plea

when is this relevant?

A
  • Only relevant where D admits guilt but disputes P’s version of events.
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4
Q

what happens if sentence is passed without a PSR?

A

o If a sentence is passed without obtaining a PSR, this does not invalidate the sentence

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5
Q

re: Newton hearing / basis of plea

when will a NH be held?

A
  • If there is a substantial difference between P and D’s events which may affect the sentence, the court can either accept D’s events or hold a NH

If P’s case is sufficiently more serious than D’s version then will be an NH

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5
Q

what happens if there is a difference between P and D’s events?

A
  • If there is a substantial difference between P and D’s events which may affect the sentence, the court can either accept D’s events or hold a NH
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6
Q

re: Newton hearing / basis of plea

why might a basis of plea be used?

A
  • D may draft a basis of plea setting out the factual basis on which D is to be sentenced and invite P to agree to avoid a NH.
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7
Q

re: Newton hearing / basis of plea

what are the possible outcomes if a basis of plea is used?

A

o P agrees and court approves  proceed to sentencing on basis of plea
o P does not agree  court can accept D’s events or hold an NH.
o If the plea is absurd, the court can reject it & proceed on P’s case

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8
Q

re: general principles of sentencing

what are the purposes of sentencing?

A

o Punishment; deterrent; reform & rehabilitation; public protection; reparation

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9
Q

re: general principles of sentencing

when must the court have regard to the purposes of sentencing?

A
  • Court must have regard to the 5 purposes of sentencing when D is over 18
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10
Q

re: general principles of sentencing

when does the court not need to have such a regard to the purposes of sentencing?

A
  • The court need not have such regard to these where the sentence is fixed by law (i.e. murder); there is a statutory minimum; or D is a ‘dangerous offender’
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11
Q

re: general principles of sentencing

what duty is the court under?

A
  • Every court has a duty to follow the sentencing guidelines, unless it would be contrary to the interests of justice to do so
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12
Q

re: general principles of sentencing

what does assessing seriousness involve?

A

This involves considering D’s culpability and harm caused, intended or foreseeably caused (s63 SA 2000)

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13
Q

re: general principles of sentencing - seriousness

what are the levels of culpability?

A

4 levels of culpability (order of seriousness):
o Intention to cause harm (i.e. offence was planned);
o Recklessness (i.e. appreciated some harm but continues)
o Knowledge of risk of action, but does not intend to cause resulting harm
o Negligence

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14
Q

re: general principles of sentencing - seriousness

what are the types of harm?

A

physical, sexual, financial loss, damage to health and psychological distress

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15
Q

re: general principles of sentencing

how should the court sentence for offences of the same nature?

A
  • Courts should impose the same sentence for the same offences, but in exceptional circumstances they can treat the offence more seriously if the offence is prevalent in the area and there is evidence the offence is harming the community
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16
Q

re: sentencing guidelines

what is the approach?

A

8 step approach to be followed:
1. Determining the offence category.
2. Starting point and category range
3. Factors indicating a reduction in sentence
4. Reduction in sentence for a G plea
5. Imposing an extended sentence
6. Totality principle
7. Compensation & other ancillary orders
8. Giving reasons

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17
Q

re: sentencing guidelines

what are the offence categories?

A

o Category 1  greater harm and enhanced culpability
o Category 2  greater harm or enhanced culpability
o Category 3  lesser harm and lower culpability

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18
Q

re: sentencing guidelines

how is the offence category determined?

A
  • The relevant SG inc. an exhaustive list of factors to determine the category
  • Applicable to all offenders, regardless of plea or pre-cons
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19
Q

re: sentencing guidelines

what is considered at stage 2. Starting point and category range

A
  • Aggravating and mitigating factors are considered
  • Court must also consider the relevant statutory thresholds for custody
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20
Q

re: sentencing guidelines

what might be a reason to impose an extended sentence?

A

if they are a dangerous offender

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21
Q

re: sentencing guidelines

what might be a factor indicating a reduction in sentence?

A

assisting police in a matter

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22
Q

re: sentencing guidelines

when are offences D has asked the court to sentence taken into consideration?

A

with aggravating factors

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23
Q

re: sentencing guidelines

what other orders may the court make?

A

confiscation/destruction/forfeiture

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24
Q

re: sentencing guidelines

what must the court include in its reasons for the sentence?

A

The court must give reasons for the sentence, which include:
o Explaining the effect of the sentence and the effect of non-compliance
o Identifying the SGs that have been followed and, if relevant, an explanation as to why a lower sentence than the SG recommended was imposed

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25
Q

re: sentencing guidelines

what are the types of aggravating factors?

A

1) statutory
2) other factors

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26
Q

re: sentencing guidelines - aggravating factors

how must the courts treat statutory factors?

A

the court must treat the offence as more serious

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27
Q

re: sentencing guidelines - aggravating factors

what are the statutory factors?

A

o Pre-cons  must be treated as an AF if, having regard to the nature of the offence and time that has elapsed since, it is reasonable to do so
o If D was on bail for another offence at the time of the current offence
o Racial or religious motivation to commit the offence
o Any hostility towards V based on sexual orientation or disability

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28
Q

re: sentencing guidelines - aggravating factors

how may the court treat ‘other’ factors?

A

the court may treat the offence as more serious

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29
Q

re: sentencing guidelines - aggravating factors

what are the ‘other’ factors?

A

o Offences that are planned or premeditated
o Offenders operating in groups or gangs
o Deliberate targeting of vulnerable groups
o Influence of alcohol or drugs
o Use of a weapon
o Deliberate or gratuitous violence or damage to property (beyond that required to carry out the offence)
o Offences involving abuse of position of trust
o Offences committed against those providing a service to the public
o In property offences, the high value (inc. sentimental value) of property to V
o Failure to respond to previous sentences
o Offences D has asked the court to take into account

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30
Q

re: sentencing guidelines - mitigating factors

give examples

A

o Offences where D has acted on impulse
o D has experienced a greater degree of provocation than expected
o D is suffering from mental illness or physical disability
o D is particularly young (particularly if they have been lead astray) or old
o D played a minor role in offending
o D was motivated by genuine fear
o D’s how have attempted reparation to their victim

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31
Q

re: sentencing guidelines - plea in mitigation

when does this take place?

A
  • Penultimate stage before sentence is passed
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32
Q

re: sentencing guidelines - plea in mitigation

what does this involve?

A

speech by D, written / oral evidence from Ws about D’s good character

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33
Q

re: sentencing guidelines - plea in mitigation

what is the general structure of a PIM speech?

A
  1. Identify sentence
  2. Offence
  3. Offender
  4. Suggested sentence
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34
Q

re: sentencing guidelines - plea in mitigation

explain the ‘identify sentence’ stage

A

aim to persuade court to impose less than starting point

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35
Q

re: sentencing guidelines - plea in mitigation

explain the ‘offence’ stage

A

minimise AF and emphasise MF

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36
Q

re: sentencing guidelines - plea in mitigation

what points may D address in the ‘offender’ stage?

A

address personal mitigation i.e.:
o Age of D
o Health of D
o Cooperation with police/early G plea
o Voluntary remedy/compensation to V (particularly if D of limited means)
o Genuine remorse
o Character
o Family circumstances

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37
Q

re: sentencing guidelines - plea in mitigation

explain ‘age of D’

A

young = impressionable / old and never committed offence

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38
Q

re: sentencing guidelines - plea in mitigation

explain ‘health of D’

A

long-term illness, mental illness at the time of offence, if D is an addict (not just under the influence as this would be an AF)

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39
Q

re: sentencing guidelines - plea in mitigation

explain ‘cooperation with police/early G plea’

A

naming others in crime, revealing whereabouts of stolen property

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40
Q

re: sentencing guidelines - plea in mitigation

explain ‘genuine remorse’

A

i.e. attempting to tackle problem which lead to the offence e.g. treatment. More than an apology from the solicitor to the court.

41
Q

re: sentencing guidelines - plea in mitigation

explain ‘character’

A

if pre-cons, D should attempt to distinguish these from current offence i.e. was a drug addict but not now. If D has no pre-cons, explain if there is a specific reason for this offence and can call character witness.

42
Q

re: sentencing guidelines - plea in mitigation

explain ‘family circumstances’

A

o D has a home, job, family to support them staying out of trouble or has a troubled background i.e. broken home, abuse.

43
Q

re: sentencing guidelines - plea in mitigation

explain ‘low risk of re-offending’

A

addressed in PSR. If low, should be raised.

44
Q

re: sentencing guidelines - plea in mitigation

explain the ‘suggested sentence’ stage

A

should be at low end of possible sentences, but must be realistic. If the same as PSR, this should be mentioned.

45
Q

re: sentencing guidelines - reduction in sentence

when is this applicable?

A
  • Applies to all Ds aged 18 or over who give a G plea
46
Q

re: sentencing guidelines - reduction in sentence

when is 1/3 discount given?

A
  • 1/3 discount where G plea given at the first hearing in the MC, or re indictable offences, an indication of G plea at MC and G plea at first hearing in CC (an indication D will ‘likely’ plead G is not sufficient)
47
Q

re: sentencing guidelines - reduction in sentence

when will D be entitled to a 1/3 discount, even if they didn’t give this at the first stage?

A
  • If G plea is given after this stage, D may still be entitled to full discount if it would have been unreasonable to expect D to give G plea at first hearing
48
Q

re: sentencing guidelines - reduction in sentence

explain the reductions as the hearing progresses

A

PTPH > ¼
1st day of trial > 1/10th (reduced further as trial progresses)

49
Q

re: sentencing guidelines - totality principle

what is this?

A

The court considers the current offence and ‘associated offences’ together to determine the most appropriate sentence

50
Q

re: sentencing guidelines - totality principle

when will an offence be an associate offence?

A

o D has been convicted in the same proceedings; or
o For which they are to be sentenced at the same time; or
o D has asked the court to take into consideration when passing sentence

51
Q

re: sentencing guidelines - totality principle

what is the typical procedure?

A

 Usually P will present D with a list of offences they are investigating and may be charged with.
 Offences should be similar/less serious than the current crime
 D can ask the court to take some/all of these into consideration.

52
Q

re: sentencing guidelines - totality principle

when sentencing for more than one sentence, what should the sentence do? How should the court approach this?

A

When sentencing more than one offence, the sentence should:
o Reflect the behaviour & inc. conservation of harm, culpability, AF&MF; &
o Be just and proportionate

The Sentencing Council recommend the following approach:
o Consider the sentence for each offence;
o Determine whether consecutive or concurrent is appropriate (or a combo)
o Test the sentence against whether it is just and proportionate;
o Explain the structure of the sentence to all concerned

53
Q

what is a concurrent sentence?

A

custodial sentences are served at the same time.

54
Q

when is a concurrent sentence likely?

give examples

A

Likely when:
o The offences arise from the same incident or the offences are similar

examples:
 1 dangerous driving which injures several people
 Supply of different drugs in the same transaction
 Repetitive small thefts

55
Q

when is a consecutive sentence likely?

give examples

A

Likely when:
o Offences arise from unrelated facts, the offences committed in the same act are distinct, or concurrent wouldn’t be sufficient

examples:
 Theft on one occasion and ABH against a different victim
 The offence is a Bail Act offence i.e. failure to surrender
 Domestic / sexual violence against the same person

56
Q

what is a consecutive sentence?

A

one sentences starts when the other has finished.

57
Q

what types of sentence might the court impose?

A

custodial
suspended
community order
absolute/conditional discharge
fines

58
Q

re: custodial sentence

explain the court’s power to impose this

A
  • Where the offence carries a custodial sentence, the court as discretion to impose a custodial sentence and the duration unless it carries a mandatory sentence of minimum term of imprisonment
59
Q

re: custodial sentence

wha must the court do where it has discretion?

A

apply the custody threshold test

60
Q

re: custodial sentence

what is the custody threshold test?

A

o Must not pass a custodial sentence unless the offence(s) was so serious that neither a fine or community sentence can be justified

61
Q

re: custodial sentence

what can happen if the custody threshold test is only just passed?

A
  • If the test is only just passed, a G plea or very strong mitigation might mean a non-custodial sentence should be imposed.
62
Q

re: custodial sentence

when does the court not need to apply the custody threshold test?

A
  • If D makes it clear they will not comply with a community order, the court doesn’t need to apply the custody test and can impose a custodial sentence (i.e. custodial sentence can be imposed, even if test isn’t met)
63
Q

re: custodial sentence

what term must the sentence be for?

A
  • Sentence must be for the shortest term (not exceeding permitted maximum) that is commensurate with the seriousness of the offence
64
Q

re: custodial sentence

what is the max sentence in the MC?

A

offence = max. 6m

2 or more either-way offences = max. 12m (2 consecutive periods of 6 months for each offence)

NB: if D has committed a summary offence and either-way offence, the max sentence MC can impose is 6m.

65
Q

re: custodial sentence

how is the term of the sentence approached in CC?

A

SG for offence states max. sentence permitted

66
Q

re: custodial sentence

where will young D’s serve this sentence and what age bracket?

A
  • If D is ages 19 – 21 sentence is served in young offender institution
67
Q

re: custodial sentence

what must the court do if D is a dangerous offender?

A

Dangerous offender (adult & youth), court must impose either:
Automatic life imprisonment;
discretionary life imprisonment;
extended sentence of imprisonment

68
Q

re: custodial sentence

who is eligible for early release and when?

A
  • Adult Ds who receive a custodial sentence of up to 2 years are automatically released ½ way through their sentence.
  • Applies to Ds with longer sentences, unless they are an ‘offender of particular concern’ (i.e. terrorism or child sex offences)
69
Q

re: custodial sentence

how would an offender of ‘particular concern’ get early release?

A

o D would need to apply for parole and if granted, they can then be released at any time from the ½ way point

70
Q

re: custodial sentence

what happens when D is released early?

A
  • D will be on licence in the community for the remainder of the sentence and have post-sentence supervision for at least 12m from the date of release
71
Q

re: suspended sentence

when is this imposed? give an example.

A
  • i.e. the custody threshold is met and custodial sentence imposed, but it is justified to suspend the sentence i.e. single parent looking after a child
72
Q

re: suspended sentence

which sentences can be suspended and for how long?

A

Custodial sentences of at least 14 days but no more than 12m in MC and 2 years in CC can be suspended for at least 6m, but not more than 2 years

73
Q

re: suspended sentence

what is the period of suspension called?

A

o Period of suspension is called the ‘operational period’ (OP)

74
Q

re: suspended sentence

what is the relationship between the operational and supervision period?

A

o The supervision period cannot exceed the operational period.

75
Q

re: suspended sentence

what is the supervision period?

A
  • Court may order D to comply with requirements (same as those for generic community order) for a period of time, this is called the ‘supervision period’.
76
Q

re: suspended sentence

when will there be a breach?

A

D fails to comply with requirements or commits an offence during OP

77
Q

re: suspended sentence

who will deal with a breach?

A
  • SS imposed by MC  breach can be dealt with by MC or CC
  • SS imposed by CC  breach must be dealt with by CC
78
Q

re: suspended sentence

what is the general rule where there is a breach?

A

if D commits another offence whilst subject to a SS, a custodial sentence will be imposed (assuming it is punishable by imprisonment) and the SS will be activated and run consecutively. The court may also shorten the custodial sentence/custody period.

The court must make one of these orders unless it would be unjust

79
Q

re: suspended sentence

when might it be unjust to impose a custodial sentence where there has been a breach?

if it would be unjust, what might the court do instead?

A

If it would be unjust in the circumstances (i.e. D has complied with requirements (until now) and near the end of the supervision period or the new offence is minor/completely different), the court has discretion to:

o Amend the original order by imposing more onerous requirements or extend the operational period or supervision period

80
Q

re: suspended sentence

what can the court do if there has been a breach but the sentence is not activated?

A
  • If the custodial sentence is not activated, court can issue a fine up to £2.5k
81
Q

re: community order

what is the threshold?

A

the court must not make such an order unless it is of the opinion that the offence(s) are serious enough to warrant a community order

82
Q

re: community order

what requirements made the court impose?

A

o Unpaid work
o Activity
o Programme
o Prohibited activity
o Curfew
o Exclusion
o Residence
o Mental health / drug rehabilitation / alcohol treatment
o Supervision
o Attendance centre
o Foreign travel prohibition

83
Q

re: community order

explain ‘unpaid work’

A

40 – 300 hours within 12 months

84
Q

re: community order

explain ‘activity’

A

i.e. to help D overcome a problem eg find a job or reparation to V

85
Q

re: community order

explain ‘programme’

A

i.e. anger management, sexual offending

86
Q

re: community order

explain ‘prohibited activity’

A

D must refrain from taking part in specified activities

87
Q

re: community order

explain ‘curfew’

A

D must be at a specified location at certain times & tagged

88
Q

re: community order

explain ‘exclusion’

A

prohibited from certain places/areas for up to 2 years & tagged

89
Q

re: community order

explain ‘residence’

A

must live at the place specified in the court order

90
Q

re: community order

explain ‘Mental health / drug rehabilitation / alcohol treatment’

A

o for a specified time. D must agree. Re: drugs, D must provide samples.

91
Q

re: community order

explain ‘supervision’

A

D must attend appointments with probation for max. 3 years.

92
Q

re: community order

explain ‘attendance centre’

A

o total of 12 – 36 hours. Only applies to Ds under 25.

93
Q

re: community order

explain ‘foreign prohibition on travel’

A

ban on travel to countries outside the British Isles (i.e. UK, Channel Islands and Isle of Man)

94
Q

re: community order

how do the courts determine the appropriate requirement?

A
  • Court will identify which range (i.e. low, medium or high) the offence is to determine the appropriate requirements to impose
95
Q

re: community order

explain the position regarding breaches

A
  • 1st breach without reasonable excuse  D receives warning from probation
  • If there is a 2nd breach without reasonable excuse within 12m, probation will report this to the court which imposed the CO. D will appear before the court.
96
Q

re: community order

if the breach is reported to the court, what must they do?

A

If the court is satisfied there is no reasonable excuse for the breach, it must:
o Amend the CO and impose more serious requirements;
o Revoke and re-sentence (without considering custody threshold);
o Revoke & impose a custodial sentence if D has wilfully and persistently failed to comply (can be done even if offence wasn’t punishable with prison)

97
Q

re: community order

what can the court do if D commits a further offence?

A

If D is already subject to a CO and commits another offence, the court can:
o Allow the original CO to continue (may impose a 2nd CO); or
o If it is in the interests, either:
 Revoke the CO (necessary if D will receive a custodial sentence for new offence as they cannot comply with CO in prison); or
 Revoke and re-sentence (must consider any extent D complied with CO)

98
Q

re: discharge

when might an absolute discharge be given?

give an example

A

no penalty for D

Rare and reserved for cases where technically an offence has occurred, but P shouldn’t have brought the case.

i.e. homeless person takes a jumper from a box for homeless people. Technically theft but court may decide it wasn’t in the interests of justice for P to bring a case.

99
Q

re: discharge

explain a conditional discharge

A

the court will not punish D so long as they do not commit an offence within a time specified by the court.

100
Q

re: discharge

what will the court do if D commits an offence in the specified time?

A

he court can either:
o Allow the conditional discharge for the original offence to continue; or
o Revoke the discharge and sentence for the original offence & the new one

101
Q

explain fines

A
  • Level 1 (lesser offence) to level 5 (serious offence)
  • Court will consider D’s disposable income and ability to pay the fine

FLK2 - Criminal Practice (11 decks)

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