Sentencing Flashcards
what is a pre-sentence report?
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
when can D ask the probation service to prepare a PSR before plea?
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
when must the court obtain a PSR?
give an example
- 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
re: Newton hearing / basis of plea
when is this relevant?
- Only relevant where D admits guilt but disputes P’s version of events.
what happens if sentence is passed without a PSR?
o If a sentence is passed without obtaining a PSR, this does not invalidate the sentence
re: Newton hearing / basis of plea
when will a NH be held?
- 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
what happens if there is a difference between P and D’s events?
- 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
re: Newton hearing / basis of plea
why might a basis of plea be used?
- 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.
re: Newton hearing / basis of plea
what are the possible outcomes if a basis of plea is used?
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
re: general principles of sentencing
what are the purposes of sentencing?
o Punishment; deterrent; reform & rehabilitation; public protection; reparation
re: general principles of sentencing
when must the court have regard to the purposes of sentencing?
- Court must have regard to the 5 purposes of sentencing when D is over 18
re: general principles of sentencing
when does the court not need to have such a regard to the purposes of sentencing?
- 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’
re: general principles of sentencing
what duty is the court under?
- Every court has a duty to follow the sentencing guidelines, unless it would be contrary to the interests of justice to do so
re: general principles of sentencing
what does assessing seriousness involve?
This involves considering D’s culpability and harm caused, intended or foreseeably caused (s63 SA 2000)
re: general principles of sentencing - seriousness
what are the levels of culpability?
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
re: general principles of sentencing - seriousness
what are the types of harm?
physical, sexual, financial loss, damage to health and psychological distress
re: general principles of sentencing
how should the court sentence for offences of the same nature?
- 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
re: sentencing guidelines
what is the approach?
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
re: sentencing guidelines
what are the offence categories?
o Category 1 greater harm and enhanced culpability
o Category 2 greater harm or enhanced culpability
o Category 3 lesser harm and lower culpability
re: sentencing guidelines
how is the offence category determined?
- The relevant SG inc. an exhaustive list of factors to determine the category
- Applicable to all offenders, regardless of plea or pre-cons
re: sentencing guidelines
what is considered at stage 2. Starting point and category range
- Aggravating and mitigating factors are considered
- Court must also consider the relevant statutory thresholds for custody
re: sentencing guidelines
what might be a reason to impose an extended sentence?
if they are a dangerous offender
re: sentencing guidelines
what might be a factor indicating a reduction in sentence?
assisting police in a matter
re: sentencing guidelines
when are offences D has asked the court to sentence taken into consideration?
with aggravating factors
re: sentencing guidelines
what other orders may the court make?
confiscation/destruction/forfeiture
re: sentencing guidelines
what must the court include in its reasons for the sentence?
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
re: sentencing guidelines
what are the types of aggravating factors?
1) statutory
2) other factors
re: sentencing guidelines - aggravating factors
how must the courts treat statutory factors?
the court must treat the offence as more serious
re: sentencing guidelines - aggravating factors
what are the statutory factors?
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
re: sentencing guidelines - aggravating factors
how may the court treat ‘other’ factors?
the court may treat the offence as more serious
re: sentencing guidelines - aggravating factors
what are the ‘other’ factors?
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
re: sentencing guidelines - mitigating factors
give examples
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
re: sentencing guidelines - plea in mitigation
when does this take place?
- Penultimate stage before sentence is passed
re: sentencing guidelines - plea in mitigation
what does this involve?
speech by D, written / oral evidence from Ws about D’s good character
re: sentencing guidelines - plea in mitigation
what is the general structure of a PIM speech?
- Identify sentence
- Offence
- Offender
- Suggested sentence
re: sentencing guidelines - plea in mitigation
explain the ‘identify sentence’ stage
aim to persuade court to impose less than starting point
re: sentencing guidelines - plea in mitigation
explain the ‘offence’ stage
minimise AF and emphasise MF
re: sentencing guidelines - plea in mitigation
what points may D address in the ‘offender’ stage?
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
re: sentencing guidelines - plea in mitigation
explain ‘age of D’
young = impressionable / old and never committed offence
re: sentencing guidelines - plea in mitigation
explain ‘health of D’
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)
re: sentencing guidelines - plea in mitigation
explain ‘cooperation with police/early G plea’
naming others in crime, revealing whereabouts of stolen property
re: sentencing guidelines - plea in mitigation
explain ‘genuine remorse’
i.e. attempting to tackle problem which lead to the offence e.g. treatment. More than an apology from the solicitor to the court.
re: sentencing guidelines - plea in mitigation
explain ‘character’
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.
re: sentencing guidelines - plea in mitigation
explain ‘family circumstances’
o D has a home, job, family to support them staying out of trouble or has a troubled background i.e. broken home, abuse.
re: sentencing guidelines - plea in mitigation
explain ‘low risk of re-offending’
addressed in PSR. If low, should be raised.
re: sentencing guidelines - plea in mitigation
explain the ‘suggested sentence’ stage
should be at low end of possible sentences, but must be realistic. If the same as PSR, this should be mentioned.
re: sentencing guidelines - reduction in sentence
when is this applicable?
- Applies to all Ds aged 18 or over who give a G plea
re: sentencing guidelines - reduction in sentence
when is 1/3 discount given?
- 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)
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?
- 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
re: sentencing guidelines - reduction in sentence
explain the reductions as the hearing progresses
PTPH > ¼
1st day of trial > 1/10th (reduced further as trial progresses)
re: sentencing guidelines - totality principle
what is this?
The court considers the current offence and ‘associated offences’ together to determine the most appropriate sentence
re: sentencing guidelines - totality principle
when will an offence be an associate offence?
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
re: sentencing guidelines - totality principle
what is the typical procedure?
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.
re: sentencing guidelines - totality principle
when sentencing for more than one sentence, what should the sentence do? How should the court approach this?
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
what is a concurrent sentence?
custodial sentences are served at the same time.
when is a concurrent sentence likely?
give examples
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
when is a consecutive sentence likely?
give examples
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
what is a consecutive sentence?
one sentences starts when the other has finished.
what types of sentence might the court impose?
custodial
suspended
community order
absolute/conditional discharge
fines
re: custodial sentence
explain the court’s power to impose this
- 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
re: custodial sentence
wha must the court do where it has discretion?
apply the custody threshold test
re: custodial sentence
what is the custody threshold test?
o Must not pass a custodial sentence unless the offence(s) was so serious that neither a fine or community sentence can be justified
re: custodial sentence
what can happen if the custody threshold test is only just passed?
- If the test is only just passed, a G plea or very strong mitigation might mean a non-custodial sentence should be imposed.
re: custodial sentence
when does the court not need to apply the custody threshold test?
- 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)
re: custodial sentence
what term must the sentence be for?
- Sentence must be for the shortest term (not exceeding permitted maximum) that is commensurate with the seriousness of the offence
re: custodial sentence
what is the max sentence in the MC?
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.
re: custodial sentence
how is the term of the sentence approached in CC?
SG for offence states max. sentence permitted
re: custodial sentence
where will young D’s serve this sentence and what age bracket?
- If D is ages 19 – 21 sentence is served in young offender institution
re: custodial sentence
what must the court do if D is a dangerous offender?
Dangerous offender (adult & youth), court must impose either:
Automatic life imprisonment;
discretionary life imprisonment;
extended sentence of imprisonment
re: custodial sentence
who is eligible for early release and when?
- 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)
re: custodial sentence
how would an offender of ‘particular concern’ get early release?
o D would need to apply for parole and if granted, they can then be released at any time from the ½ way point
re: custodial sentence
what happens when D is released early?
- 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
re: suspended sentence
when is this imposed? give an example.
- 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
re: suspended sentence
which sentences can be suspended and for how long?
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
re: suspended sentence
what is the period of suspension called?
o Period of suspension is called the ‘operational period’ (OP)
re: suspended sentence
what is the relationship between the operational and supervision period?
o The supervision period cannot exceed the operational period.
re: suspended sentence
what is the supervision period?
- 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’.
re: suspended sentence
when will there be a breach?
D fails to comply with requirements or commits an offence during OP
re: suspended sentence
who will deal with a breach?
- SS imposed by MC breach can be dealt with by MC or CC
- SS imposed by CC breach must be dealt with by CC
re: suspended sentence
what is the general rule where there is a breach?
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
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?
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
re: suspended sentence
what can the court do if there has been a breach but the sentence is not activated?
- If the custodial sentence is not activated, court can issue a fine up to £2.5k
re: community order
what is the threshold?
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
re: community order
what requirements made the court impose?
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
re: community order
explain ‘unpaid work’
40 – 300 hours within 12 months
re: community order
explain ‘activity’
i.e. to help D overcome a problem eg find a job or reparation to V
re: community order
explain ‘programme’
i.e. anger management, sexual offending
re: community order
explain ‘prohibited activity’
D must refrain from taking part in specified activities
re: community order
explain ‘curfew’
D must be at a specified location at certain times & tagged
re: community order
explain ‘exclusion’
prohibited from certain places/areas for up to 2 years & tagged
re: community order
explain ‘residence’
must live at the place specified in the court order
re: community order
explain ‘Mental health / drug rehabilitation / alcohol treatment’
o for a specified time. D must agree. Re: drugs, D must provide samples.
re: community order
explain ‘supervision’
D must attend appointments with probation for max. 3 years.
re: community order
explain ‘attendance centre’
o total of 12 – 36 hours. Only applies to Ds under 25.
re: community order
explain ‘foreign prohibition on travel’
ban on travel to countries outside the British Isles (i.e. UK, Channel Islands and Isle of Man)
re: community order
how do the courts determine the appropriate requirement?
- Court will identify which range (i.e. low, medium or high) the offence is to determine the appropriate requirements to impose
re: community order
explain the position regarding breaches
- 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.
re: community order
if the breach is reported to the court, what must they do?
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)
re: community order
what can the court do if D commits a further offence?
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)
re: discharge
when might an absolute discharge be given?
give an example
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.
re: discharge
explain a conditional discharge
the court will not punish D so long as they do not commit an offence within a time specified by the court.
re: discharge
what will the court do if D commits an offence in the specified time?
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
explain fines
- Level 1 (lesser offence) to level 5 (serious offence)
- Court will consider D’s disposable income and ability to pay the fine
