Sentencing Flashcards
What purposes must the Court have regard to when sentencing offenders?
S57 SA 2020-the Court must have regard to the following purposes of sentencing:
a) the punishment of offenders
b) the reduction of crime
c) the reform and rehabilitation of offenders
d) the protection of the public
e) the making of reparation by offenders to persons affected by their offences
Where can a D be sentenced when pleading guilty to a summary only offence?
They can only be sentenced in the magistrates’ court.
Where can a D who pleads not guilty to a summary only offence but is found guilty at trial be sentenced?
They can only be sentenced in the magistrates’ court.
Where can a D who pleads guilty to an either-way offence in the magistrates court be sentenced?
Either the magistrates’ court or the Crown Court (if committed for sentence).
Where can a D who pleads not guilty to an either way offence but is found guilty at trial in the magistrates be sentenced?
Either the magistrates’ court or the Crown Court (if committed for sentence).
Where can a D who pleads not guilty to an either way offence but is found guilty at trial in the Crown Court be sentenced?
The Crown Court only.
Where can a D charged with an indictable only offence be sentenced?
The Crown Court only.
What is a Newton hearing?
Where a judge determines the correct facts for sentencing a D who has pleaded guilty. It’s held when the D and the prosecution have conflicting versions of events.
Who presides over a Newton hearing in the magistrates?
In the magistrates, a Newton hearing is presided over by magistrates or a District Judge much like a regular trial.
Who presides over a Newton hearing in the Crown Court?
In the Crown Court it takes place without a jury-rare occasion where the CC Judge acts at the arbiter of both law and fact.
What is the consequence of a D losing a Newton hearing?
They lose credit for pleading guilty-reduction previously available should be halved. If witnesses are called, further decrease the reduction for wasting the Court’s time.
What is a concurrent sentence and when is it used?
A concurrent sentence is a prison sentence that is served at the same time as another sentence.
It is used when offences arise out of the same facts.
What is a consecutive sentence and when is it used?
A consecutive sentence is a prison sentence that is served one after the other.
It is used when offences arise out of different facts.
What is a Goodyear indication in the Crown Court?
D can ask for an indication of sentence before the PTPH or any stage of proceedings before jury returns the verdict. Before asking, D must:
a) either accept the prosecution facts or a written basis of plea must be agreed by all parties
b) give clear instructions to their counsel that D wishes to ask for an advance indication of sentence
Giving of an indication is discretionary to the Judge.
What must the Court consider when considering the seriousness of any offence?
S63 SA 2020: Where a court is considering the seriousness of any offence, it must consider:
(a) the offender’s culpability in committing the offence, and
(b) any harm which the offence (i) caused, (ii) was intended to cause, or (iii) might foreseeably have caused
In what circumstances should the Court pass a custodial sentence?
S230 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 and one or more offences associated with it,
was so serious that neither a fine alone nor a community sentence can be justified.
What is culpability?
Culpability is essentially blameworthiness and is assessed with reference to the offender’s role, level of intention and premeditation and sophistication of planning.
What is harm?
Harm is an assessment of damage caused to the victim. So in an assault, how injured the victim was and whether the assault was sustained or repeated.
What approach should the Court take to sentencing as set out in The Sentencing Code?
- Determine offence seriousness
- Consider aggravating factors
- Consider mitigating factors
- Consider any assistance given to prosecution
- Consider the appropriate reduction for any guilty plea
- Consider totality
- Appropriate ancillary orders
What are the 3 categories of the sentencing guidelines?
Category 1-greater culpability and greater harm
Category 2-greater culpability and lesser harm, or greater harm and lesser culpability
Category 3-lesser culpability and lesser harm
What are the statutory aggravating factors?
-Previous convictions
-Offence committed whilst on bail
-Racially or religiously aggravated
-Motivated by sexual orientation or victim’s disability
What are the non-statutory aggravating factors?
-Under influence of drugs or alcohol
-Planning of an offence
-Operating in group or gangs
-Financial gain
-Conceal/disposes evidence
-Use of a weapon
-Multiple victims
-Victim is vulnerable/targeted
-Location of offence
-Sustained assault
-Against public sector victims
-Abuse of power
-Presence of others
-Additional degradation of victim
What are the common mitigating factors?
-Greater degree of provocation than expected
-Mental illness or disability
-Youth or age
-Minor role
-Good character and lack pf previous convictions
-Any personal mitigation
What is the reduction in sentence available at each stage of proceedings?
First stage of proceedings-max 1/3 off sentence
After first stage of proceedings-max 1/4 off sentence
Day of trial-max 1/10 off sentence
