Sentencing Flashcards
Role of sentencing guidelines
MUST follow unless contrary to IoJ
Approach to sentencing
- Seriousness (Harm + Culpability)
- Aggravating and Mitigating Factors
- Mitigation
- Totality
- Ancillary orders
Harm and culpability factors
Harm: (Intention / foreseeable) - distress of V / extent of injuries / sustained attack / financial loss
Culpability: planning / involvement
Aggravating and Mitigating Factors
Aggravating:
- Intoxication
- Previous convictions
- Bail
- Public worker
- breach of trust / absue of power
- racial, religious, disability, sexual
Mitigating
- remorse
- vulnerable
- good character
- mental health
- no relevant convictions
- self defence
- provocation
Reductions for guilty plea
First Opportunity (first hearing) = max 1/3 reduction
Before trial (PTPH) = max 1/4 reduction
Day of trial = ,max 10%
Totality
D’s sentence must be ‘just and proportionate’
- concurrent: arise from same event
- Consecutive: seaprate offences
When can a custodial sentence be imposed
- So serious neither a fine or community order can be justified;
- pre- sentence report unless unecessary
- shortest possible period to reflect purpose of sentence
Discretionary custodial sentence
Determinate / Extended Determinate
Deductions
Mags: 6 months (12 months if multiple offences)
CC: As specified in statute
Determinate: D can apply for release after serving 1/2 sentence
extended determinate: D can apply for release after servivng 2/3 sentence
Deductions
- Automatic: time spent in custody before trial
- May deduct 1/2 day for every day on bail with curfew over 9 hours
Statutory minimum sentence
Murder = life (judge sets min number of years after which D can apply for release. But for remainder of life is on licence)
Statutory life (dangerous offender)
- Mansalughter, s18, Arson, Aggravated Burglary, Robbery
- D is dangerous
- Justifies a life sentence
Suspended sentence
Sentence must be min 14 days and max 2 years (6 months if Mags)
If D commits offence or breaches condition during operational period, then may have to serve sentence.
- If new offence during OP: MUST activate custodial sentence unless unjust
- if breach condition: first time (warning) second time (MUST activate unless unjust)
Community Order threshold
- Serious enough to warrant CO
- Pre-setennce report unless unecessary
- Imprisonable offence
- probation input; and
- does not conflict with religious belief, work or education
Community order duration
Max 3 years
- unpaid work (40-300 hours in 12 months)
- foreign travel (max 12 months)
- abstain from alcohol (max 120 days)
- Curfew (2-16 hours every 24 hours max 12 months)
Consequences of breach of community order
- first breach; warning
2, second breach: fine / increase conditions / resetence D anything could have sentenced originally - persistent breaches: revoke CO and setnence upt o 6 months
Newton Hearing
Where D pleads guilty but disputes P’s factual basis and this makes material difference to sentence.
P will consider whether they agree with D’s version. Then judge decides next step.
If P agrees with D’s version:
- judge also agrees: will sentence
- judge disagrees: Newton hearing
if P disagrees with D’s version:
- if judge agrees with P: sentence immediately
- if judge accepts D version: Newton Hearing
No jury but call witnesses. P must prove their version ebyond reasonable doubt. If so, D is sentenced on P’s version.
Indication of sentence at allocation
at court’s discretion. If indicate custodial / non-custodial adn D changes plea to G then indiciation is binding
