Sentencing

Question 1

Two main categories of sentences

Answer 1

1. custodial
2. non-custodial

Question 2

Purposes of sentencing (adults)

Answer 2

S57 Sentencing Act 2020:
(a) punishment of offenders
(b) reduction of crime
(c) reform and rehabilitation of offenders
(d) protection of the public
(e) the making of reparation by offenders to persons affected by their offences

Question 3

Sentencing procedure

Answer 3

• After guilty plea or being found guilty after a trial
• MC, CC, YC are all courts of first instance with powers of sentence
• But sometimes will refer sentencing to the crown court because it has greater sentencing powers

Question 4

Basis of sentence

Answer 4

Sometimes a defendant will admit guilt but take issue with the facts asserted by the prosecution. If this is his position he would need to:
- enter a guilty plea, but on a written basis, prosecution would indicate whether they viewed the basis as acceptable if accepted
- the court will then proceed to consider whether this basis is an acceptable one
- the court will consider whether a Newton hearing is required

Question 5

What is a Newton hearing?

Answer 5

Where a defendant pleads guilty on a basis that will make a material difference to sentence, the court must hold a Newton hearing to decide the factual basis upon which it should pass sentence.

Question 6

What happens in a Newton hearing?

Answer 6

In MC: magistrates or district judge

CC: takes place without a jury

Prosecution makes an opening speech and calls evidence in the usual way and their witnesses can be cross-examined by the defence.

Defendant is able to give evidence and call witnesses if they so wish. Both parties are entitled to address the Judge by way of closing speech.

Question 7

Newton hearing: outcomes

Answer 7

At conclusions the court must decide whether P has proved its version beyond reasonable doubt. If they prove this then d will also lose some of their credit for pleading guilty.

If it has, the defendant will be sentenced on the facts. If it has failed to prove their factual basis to the standard, the defendant will be sentenced on the defence version of the facts as set out in the basis of their plea.

Question 8

Consecutive or concurrent sentences

Answer 8

Offences arise out of same facts: concurrent sentences

Offences arise out of different facts: consecutive sentences

Question 9

MC: indication of sentence

Answer 9

If offence is either way and the court accepts jurisdiction during the allocation process.

D is entitled to ask for an indication of what their sentence would be were they to remain in the MC and plead guilty.

Court does not have to give an indication but if it does it is limited to custodial or non-custodial.

Only binding if D then pleads guilty.

Question 10

CC: goodyear indicaiton

Answer 10

D can ask for an indication of sentence either before the PTPH or at any stage of the proceedings before the jury return their verdict.
Before asking D must:
a) either accept the prosecution facts or a written basis of plea must be agreed by parties and the court
b) Give clear instructions to their counsel that D wishes to ask for an advance indication of sentence

Giving an indication is discretionary and it remains the decision of the Judge whether to give one or not.

Question 11

Determining seriousness

Answer 11

Seriousness is the starting point for determining the appropriate sentence.

To consider seriousness, you must consider culpability and harm.

(a) offender’s culpability in committing the offence
(b) any harm which the offence (i) caused, (ii) was intended to cause or (iii) might foreseeably have caused

Question 12

Seriousness threshold for custodial sentence

Answer 12

Custodial sentence (s 230 SA 2020):

The court must not pass a custodial sentence unless it is of the opinion that

(a) the offence, or
(b) the combination of the offence or one or more offences associates with it,

was so serious that neither a fine alone nor a community sentence can be justified for the offence.

Question 13

Seriousness threshold for a community order

Answer 13

The court must not make a community order unless it is of the opinion that

(a) the offence, or
(b) the combination of the offence and one or more offences associated with it

was serious enough to warrant the making of such an order

Question 14

Culpability

Answer 14

Essentially blameworthiness and is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning.

Mere presence of a factor that is inherent in the offence should not be used in assessing culpability. E.g. intention to cause serious harm is an element of s18, what would increase culpability might be how the injuries were inflicted.

Question 15

Harm

Answer 15

Assessment of the damage caused to the victim.

In an assault it is a consideration of how injured the victim was and whether the assault was sustained or repeated.

In a theft, it will be assessed by financial loss from the theft and any additional harm suffered by the victim or anyone else e.g. injury or emotional distress.

Question 16

What happens at a sentencing hearing?

Answer 16

• Prosecution open with the facts, makes submissions and applications
• Defence mitigation
• Judge passes sentence

Question 17

Sentencing hearing: prosecution

Answer 17

Duties of the prosecutor extend to reminding the court of the following:
- any previous convictions
- any ancillary orders that the prosecution seems
- any relevant sentencing guidelines
- any general sentencing issues necessary to ensure that a lawful sentence is passed
- any victim impact statement which has been produced

Not the role of the prosecution to tell the court or to suggest to the court what the ultimate sentence may be.

Question 18

Sentencing hearing: defence

Answer 18

Defence are under a general duty to ensure that a lawful sentence is passed.

Legal reps must ensure that what they put forward is consistent with their instructions and their duties not to mislead the court.

Defence may ask for a pre-sentence report should they want one. More common to ask for one before prosecution foes through process of opening the case. If ordered the court will normally be adjourned for a period for this to happen.

Pre-sentence reports can be ordered at the PTPH or at the time of sending.

Question 19

Pre-sentence reports and other reports

Answer 19

Pre-sentence reports:
- Section 30 SA states that a court must obtain a pre-sentence report before passing a custodial sentence unless it considers it unnecessary to do so.
- Report is to assist the court in determining the most suitable method of dealing with an offender. Probation input is needed before a community order can be imposed to assess the defendant’s suitability for any programmes.
- Probation officer will meet the defendant and discuss the offence and the defendant’s attitude towards it.

Other reports:
- sometimes other reports will be obtained either by order of the court or by the defence.
- includes medical reports or psychiatric reports
- if considering a sentence pursuant to the Mental Health Act 1983 then it must receive evidence from two medical practitioners stating that in their opinion the defendant is suffering from a mental disorder.

Question 20

The code - approach to sentencing

Answer 20

1 - determine which category of the sentencing guideline applies
2 - adjust the starting point up or down according to aggravating/mitigating factors
3 - reduce sentence to credit any guilty plea
4 - If multiple offences, ensure the final, overall sentence is just and proportionate

Approach court should take;
(1) Determine offence seriousness
(2) Consider aggravating factors, both statutory (previous convictions, on bail, racial, religious, disability or sexual aggravation) and other non-statutory matters (alcohol, abuse of power, breach of trust)
(3) Consider mitigating factors (those reducing seriousness), relating to offence: provocation, excessive self-defence, relating to offender: positive good character, offender’s vulnerability, mental health, remorse or other personal mitigation
(4) Consider any assistance given to the prosecution
(5) Consider the appropriate reduction for any guilty plea
(6) Consider totality
(7) Appropriate ancillary orders must be considered e.g. compensation, disqualification, forfeiture, restraining order, costs, surcharge, Criminal Courts charge

Question 21

Sentence category

Answer 21

For most offence, the sentencing guidelines set out the appropriate range of sentence based on:
1. Greater culpability and greater harm
2. Greater culpability and lesser harm or greater harm and lesser culpability
3. Lesser culpability and lesser harm

Highest level of offence category would be 1, lowest 3 and middle 2

Guideline provides a sentence starting point and range for each category and a range.

Range is for considering mitigating and aggravating factors.

Question 22

Common aggravating factors

Answer 22

Statutory factors:
- Previous convictions (especially pattern of repeat offending)
- Offence committed whilst on bail for other offences
- Offence was racially or religiously aggravated
- Offence motivated by, of demonstrating, hostility to the victim based on sexual orientation or disability

Common law factors:
- under influence of alcohol or drugs
- planning of an offence
- offender operating in groups or gangs
- ‘professional’ offending
- commission of the offence for financial gain
- high level of profit from the offence
- attempt to conceal or dispose of evidence
- failure to respond to previous sentences
- offence committed whilst on licence
- motivated towards hostility towards minority group
- use of weapon to frighten or injure victim
- multiple victims
- deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence
- especially serious physical or psychological effect on the victim
- victim is particularly vulnerable
- deliberate targeting of vulnerable victims
- intention to commit more serious harm than actually resulted from the offence
- location of offence (e.g. in isolated place)
- sustained assault or repeated assaults on the same victim
- offence is committed against those working in the public sector or providing a service to the public
- presence of others e.g. relatives or children
- additional degradation of the victim (eg photographs)
- abuse of a position of trust
- abuse of power

Question 23

Common mitigating factors

Answer 23

• Greater degree or provocation than normally expected
• Mental illness or disability
• Youth or age where it affects the responsibility of the individual defendant
• Fact the offender played only a minor role in the offence
• Good character and/or lack of previous convictions
• Any personal mitigation

Question 24

Credit for a guilty plea

Answer 24

Max 1/3: Guilty plea at the first stage proceedings
Max 1/4: Guilty plea after first stage of proceedings
Max: 1/10: Guilty plea on the day of trial

The credit/reduction given is entirely at the discretion of the court.

Safest way defendant can obtain maximum credit is either by:
- entering a guilty plea to a summary only or either way offence at the first hearing
- where indictable only, provide an unequivocal indication at first hearing that D intends to plead guilty and D’s defence team will contact the crown court to arrange for this imminently

Question 25

When passing sentence what must the court do?

Answer 25

• Explain to defendant in non-technical language the sentence that has been passed
• Identify the sentencing guidelines that it followed or why it decided not to follow guidelines that exist
• Explain why the defendant passes the custody threshold if a custodial sentence is passed
• Explain credit for guilty plea and why that level
• Set out any aggravating and mitigating factors that the court considered in arriving at sentence

Question 26

Non-custodial sentences

Answer 26

• absolute or conditional discharge
• compensation orders
• forfeiture, deprivation of property etc
• fines
• disqualification
• restitution and restoration
• community orders
• orders for offenders under 18
• youth rehabilitation orders

Question 27

Custodial sentences

Answer 27

• Discretionary custodial sentences
• minimum sentences for particular sentences
• life sentences
• dangerous offenders
• suspended sentence of imprisonment
• dangerous offenders
• detention for adults aged under 21
• detention for offenders aged under 18

Question 28

Bind over

Answer 28

Imposed in the CC and MC.

Can be and if often imposed on someone instead of them entering a guilty plea or being tried. Can even be imposed following an acquittal or on a witness in a case.

Person can be bound over by a court to ‘keep the peace’ for a sum of money that they forfeit if they fail to do so.

If a defendant breaches the peach they are liable to pay a monetary sum that they were bound over for.

Question 29

Absolute discharge

Answer 29

In CC and MC.

Lowest form of sentence available.

Usually imposed to reflect either the triviality of an offence, circumstances in which an offender came to be prosecuted or special factors relating to the offender.

In effect, no punishment at all.

Question 30

Conditional discharge

Answer 30

In CC and MC:

Discharge but with a condition attached to it.

Condition is that if the defendant commits another offence during the period specified they can be resentenced for the original offence and for the new offence.

Specified period must be no more than three years.

Question 30

Fines

Answer 30

MC and CC can both impose fines.

In the CC there is no upper limit.

In MC, fines are set on a scale (level 1 - £200 to level 5 - unlimited).
Amount is due immediately and can only be paid in instalments with the agreement of the court.

Can be imposed unless prohibited by statute, not desirable to combine fines with imprisonment.
Fines are the most common type of sentence given by the courts.

Before imposing a fine the court can ask defendant to fill out a means form.

Failure to pay fine means being brought back in front of the MC and as a last resort D can be sentences to a period of imprisonment in default.

Question 31

What is a community order?

Answer 31

Sentence which requires a defendant to comply with one or more requirements to punish and/or rehabilitate a defendant in the community.
Court must not make the order unless it is of the opinion that the offence or combination of the offence and one or more offences associated with it was serious enough to warrant the making of such an order.

Question 32

What are the requirements of a community order?

Answer 32

Offender must be over 18 and the offence must be punishable with imprisonment.

Court must impose at least one of the requirements set out in SA:
- maximum length of a community order is three years
- community order must have at least one requirement - including punitive element, unless a fine is imposed or exceptional circumstances
- requirements must avoid conflict with offender’s religious beliefs, work and education
- may have regard to any period spent on remand

Question 33

Community order - timing

Answer 33

Court must specify a period of operation for a community order and that in effect is an overall limit within which the requirements must be completed.

Once completed, they or probation service may apply for the order to be discharged.

Section 30 SA 202 - court should obtain a pre-sentence report before imposing a community order unless it thinks it unnecessary to do so.
In practice, Probation Service write reports and supervise Community Orders so courts will want a report unless its obvious that a requirement is suitable.

Question 34

Examples of community order requirements

Answer 34

• Unpaid work
• Rehabilitation activity
• Programme (e.g. anger management)
• Prohibited Activity
• Curfew requirement
• Exclusion (stay away from somewhere or someone)
• Residence requirement
• Foreign travel prohibition
• Mental health treatment requirement
• Drug rehabilitation requirement
• Alcohol treatment requirement
• Alcohol abstinence and monitoring requirement
• Attendance centre requirement
• Electronic monitoring requirement

Question 35

Consequences of breaching a community order?

Answer 35

Without reasonable excuse:
1st time: warning
2nd time: breach proceedings

Breach proceedings:
- brought back before the court and have the breach put to them
- either admit or deny the breach (deny: trial as to whether there was a failure without reasonable excuse)

If admitted or court finds there was a breach, court must:
- amend the order to make more onerous
- fine the offender up to £2,500
- revoke the community order and re-sentence the offender for the offence

Court is able to extend (once only) the period of the Community Oder by up to six months beyond the usual three-year limit.

For a wilful and consistent breach - power to impose custodial sentence not exceeding six months.

Question 36

Determinate custodial sentence

Answer 36

A prison sentence for a defined period of time e.g. 6 weeks, 12 months, 3 years or 8 years.

These are the most usual custodial sentences passed.

Question 37

Concurrent and consecutive sentences

Answer 37

Take two 12-month sentences:
- concurrent: total of 12 months
- consecutive: total of 24 months

Judge must consider totality when passing custodial sentences for multiple offences and includes consecutive or concurrent.

Generally, if arising out of same fact = concurrent. arising out of separate facts = consecutive.

Question 38

Suspended sentence

Answer 38

• For offending which crosses the custody threshold but the defendant does not go into immediate custody and if they fulfil certain criteria they can avoid prison entirely.

MC: can suspend between 14 days and 6 months.

CC; suspend between 14 days and 2 years.

Question 39

Elements to a suspended sentence

Answer 39

Custodial term: how long a custodial term they would have received but for it being suspended (CC: max 2 years)

Operational period: how long the custodial term is suspended for - must be between 6 months and two years

Supervision period: how long defendant was supervised by the probation service for. Optional but must between six months and two years and equal or shorter than the operational period.

Court may also make the suspension subject to a Community Order requirement

Question 39

What happens if someone breaches a suspended sentence?

Answer 39

1st breach: warning
2nd: breach proceedings

If breach is proved or admitted - the court must activate the suspended custodial sentence in part or whole having regard to the extent to which the defendant had complied with the order prior to breach (unless unjust to do so).

Question 40

Minimum sentences

Answer 40

Third Class A drug trafficking offence: seven years

Third domestic burglary: three years

Certain firearms offences: five years

Second offence of possessing a weapon: six months

Threatening with a weapon: six months

Question 41

Extended determinate sentence

Answer 41

Imposed in certain cases such as certain violent, sexual or terrorism offences and where the court has found that the offender is dangerous.

Licence period which is extended not the period of custody - extended licence period is required to protect the public from risk of harm.

Extended period must be at least one year but not exceed:
- violence: 5 years
- sexual or terrorism: 8 years

Question 42

Mandatory life sentence for murder

Answer 42

Court must pass a mandatory life sentence if convicted of murder.

On sentence, court will fix a minimum term. Once that expires, the defendant can apply for release to the Parole Board who has ultimate discretion as to when a defendant is released. If released the defendant remains on licence for life.

Starting points for prison terms are: 30, 25 and 15 years.

If really bad the judge can order a ‘whole life order’ but this is rare.

Question 42

Statutory life sentences

Answer 42

Convicted of second very serious offence.
Element of discretion in imposition of life sentences.

Some offences have max life sentences as life in prison - but rare without fulfilling statutory provisions