Sentencing Flashcards
Two main categories of sentences
- custodial
- non-custodial
Purposes of sentencing (adults)
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
Sentencing procedure
- 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
Basis of sentence
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
What is a Newton hearing?
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.
What happens in a Newton hearing?
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.
Newton hearing: outcomes
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.
Consecutive or concurrent sentences
Offences arise out of same facts: concurrent sentences
Offences arise out of different facts: consecutive sentences
MC: indication of sentence
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.
CC: goodyear indicaiton
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.
Determining seriousness
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
Seriousness threshold for custodial sentence
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.
Seriousness threshold for a community order
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
Culpability
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.
Harm
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.
What happens at a sentencing hearing?
- Prosecution open with the facts, makes submissions and applications
- Defence mitigation
- Judge passes sentence
Sentencing hearing: prosecution
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.
Sentencing hearing: defence
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.
Pre-sentence reports and other reports
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.
The code - approach to sentencing
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
Sentence category
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.
Common aggravating factors
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
Common mitigating factors
- 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
Credit for a guilty plea
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
