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Criminal Litigation > Sentencing A&Q > Flashcards

Sentencing A&Q Flashcards

1
Q

What is a Sentencing Code?

A

It is a consolidation of existing sentencing procedure law.

By bringing together over 50 pieces of primary legislation relating to sentencing procedure into one single Sentencing Act 2020.

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2
Q

What part of the sentencing Act 2020 make up a code called the Sentencing Code?

A

Part 2 to 13 of the Sentencing Act 2020

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3
Q

What are the types of sentences?

A

Custodial and non-custodial sentences

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4
Q

What are the various purposes of sentencing, that the court will have regard to when determining the proportionate sentence to be imposed to cases involving those aged 18 and over (at the date of conviction)?

A

1) The punishment of offenders

2) The reduction of crime (including its reduction by deterrence)

3) The reform and rehabilitation of offenders

4) The protection of the public and

5) the making of reparation by offenders to persons affected by their offences.

*The purposes are given equal weight though in particular cases some may be more important than others.

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5
Q

How are the court mechanics of how a court sentences an offenders different ?

A
  1. The availability of certain sentences &
  2. The limits to the powers of the Magistrates and Youth courts.
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6
Q

How will a court decide both the type and length of any particular sentence?

A

By assessing the seriousness of the case before it, by refereeing to the sentencing guidelines.

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7
Q

When does sentencing happen?

A

Once D is convicted by either:

1) Entering a guilty plea

OR

2) Being found guilty after a trail.

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8
Q

What are the courts of first instance with powers of sentence?

A

1) Magistrates’ Court

2) Youth Court

3) Crown Court

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9
Q

Can a court commit an adult for sentence to another court with greater sentencing power?

A

Yes

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10
Q

When can a court commit an adult for sentence to another court with greater sentencing power?

A

Where necessary and appropriate

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11
Q

Which statue allows a court to commit an adult for sentence in another court with greater sentencing power?

A

Section 14 SA 2020

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12
Q

If a D pleads guilty to a summary only offence in the magistrates court, can they be sentenced in the magistrate court?

A

Yes

*D can only be sentenced in the magistrate court

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13
Q

If a D pleads guilty to a summary only offence in the magistrates court, can they be sentenced in the crown court?

A

No

  • Cant be sent to the crown court for sentence
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13
Q

If D pleads not guilty to a summary only offence in the magistrate court and therefore has a trail in the magistrate court. At trail they are found guilty.

Can they be sentenced in the magistrates’ court?

A

Yes

*Can only be sentenced in the Magistrates’ Court

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13
Q

If D pleads not guilty to a summary only offence in the magistrate court and therefore has a trail in the magistrate court. At trail they are found guilty.

Can they be sentenced in the crown court?

A

No

*Cant be sent to the Crown Court for sentence

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14
Q

If a D pleads guilty to an either-way offence in the magistrates court, can they be sentenced in the crown court?

A

Yes, if committed for sentence

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15
Q

If a D pleads guilty to an either-way offence in the magistrates court, can they be sentenced in the magistrates’ court?

A

Yes, but may commit for sentence to the Crown Court.

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16
Q

If D pleads not guilty to an either offence in the magistrate court and the matter stays in the magistrate court for trail. At trail they are found guilty.

Can they be sentenced in the crown court?

A

Yes, if committed for sentence.

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17
Q

If D pleads not guilty to an either offence in the magistrate court and the matter stays in the magistrate court for trail. At trail they are found guilty.

Can they be sentenced in the magistrates’ court?

A

Yes but may commit for sentence to the Crown Court.

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18
Q

If D pleads not guilty to an either offence in the magistrate court. The case is sent to the Crown Court for trail. At trail they are found guilty.

Can they be sentenced in the magistrates’ court?

A

No. Once a matter has been sent to the Crown Court, it cannot be sent back to the magistrates’ court for sentence.

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19
Q

If D pleads not guilty to an either offence in the magistrate court. The case is sent to the Crown Court for trail. At trail they are found guilty.

Can they be sentenced in the Crown Court?

A

Yes, D will be sentenced by the Crown Court.

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20
Q

If D is charged with an indictable only offence which is sent to the Crown Court. They plead guilty at their plea and trail preparation hearing in the Crown Court.

Can they be sentenced in the Crown Court?

A

Yes, D must be sentenced by the Crown Court

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21
Q

If D is charged with an indictable only offence which is sent to the Crown Court. They plead guilty at their plea and trail preparation hearing in the Crown Court.

Can they be sentenced in the magistrate court?

A

No. Once a matter has been sent to the Crown Court, it cant be sent back to the magistrate court for sentence.

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22
Q

If D is charged with an indictable only offence which is sent to the Crown Court. They plead not guilty at their plea and case management hearing in the Crown Court and are found subsequently guilty at trail.

Can they be sentenced in the magistrate court?

A

No. Once a matter has been sent to the Crown Court, it cant be sent back to the magistrate court for sentence.

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23
Q

If D is charged with an indictable only offence which is sent to the Crown Court. They plead not guilty at their plea and case management hearing in the Crown Court and are found subsequently guilty at trail.

Can they be sentenced in the Crown Court?

A

Yes. D must be sentenced by the Crown Court

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24
Q

When does the defence enter a plea but on a written basis?

A

When D pleads guilty but takes issue with the facts asserted by the prosecution.

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25
Q

What is the procedure, when the defence enter a plea but on a written basis and the prosecution viewed the basis as acceptable?

A

1) Defence enter a guilty plea but in a written basis, the prosecution would indicate whether they viewed the basis as acceptable. if accepted

2) The court will then proceed to consider whether this basis is an acceptable one and

3) the court will consider whether or not a newton hearing is required.

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26
Q

When is a Newton hearing held?

A

Where a D 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

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27
Q

How is a Newton hearing heard in the magistrate court?

A

A Newton hearing is presided over by magistrates or a District Judge much like a regular trail.

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28
Q

How is a Newton hearing heard in the Crown Court?

A

In the Crown Court it takes place without a jury, and the Crown Court Judge acts as the arbiter of both law and facts.

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29
Q

What is one of the limited number of occasions where a Crown Court Judge acts as the arbiter of both law and facts?

A

In a Newton hearing in the Crown Court.

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30
Q

What circumstances allow for D to go into trial when D enters a guilty plea?

A

In a Newton hearing.

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31
Q

Is there a trial if D pleads guilty for a Newton hearing?

A

Yes

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32
Q

Can a Crown Court Judge act as the arbiter of both law and fact in a Newton hearing?

A

Yes, there is no jury

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33
Q

Is there a jury in the Crown Court for a Newton hearing?

A

No

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34
Q

What happens in a Newton hearing?

A

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

D is able to give evidence and call witnesses if they so wish.

Both parties are entitled to address the judge by way of a closing speech.

At the conclusion of the hearing the court must decided whether the prosecution has proved its version of the facts beyond reasonable doubts.

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35
Q

What happens at the conclusion of a Newton hearing?

A

At the conclusion of the hearing the court must decided whether the prosecution has proved its version of the facts beyond reasonable doubts.

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36
Q

What does the prosecution must prove in a Newton hearing?

A

To prove their version of facts beyond reasonable doubt.

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37
Q

What is the threshold of proof for the prosecution in a Newton case?

A

Beyond reasonable doubt

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38
Q

What is the result if prosecution prove their case beyond reasonable doubt in a Newton hearing?

A

D will be sentenced on the prosecution version if the facts.

+

D will lose some of the credit they receive for pleading guilty = decrease the reduction

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39
Q

What is the result if prosecution failed to prove their case beyond reasonable doubt in a Newton hearing?

A

D will be sentenced on the defence version of the facts as set out in their basis of plea.

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40
Q

What must the court consider when sentencing for more than one offence?

A

If the total sentence should be and arrive at one that is just and proportionate, by considering whether

1) Consecutive

Or

2) Concurrent sentences

are more appropriate in the circumstances

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41
Q

What is the most likely sentence where the various offences arise out of the same facts?

A

It will usually be appropriate to pass concurrent sentences for each.

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42
Q

What is the most likely sentence where the various offences arise out of different facts?

A

Consecutive sentences are likely to be passed.

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43
Q

How long can a court defer a sentence for ?

A

up to 6 months?

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44
Q

Why would a court defer a sentence?

A

A deferred sentence allows this time for D to prove to the court that they have either ‘changed’ or that the offence was an absolute ‘one-off’ and thus allowing the ability to present to the court at the end of the deferral period in a much better light, and often receive a lighter sentence as a result.

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45
Q

When can a defer period be extended?

A

When the magistrates’ court defers sentence for a period, at the end of which they commit to the Crown Court for sentence, the Crown Court then has the option of deferring for a further 6 months.

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46
Q

What is the formal procedures for seeking an indication of sentence in the event of a guilty plea in the magistrate court?

A

Step 1: is the offence an either way? Yes

Step 2: has the magistrate court accepted jurisdiction in the allocation process? Yes

Step 3: D can ask for indication of what their sentence would be were they to remain in the magistrate court and plead guilty

Step 4: IF the court gives indication, the court will only indicate if the sentence if custodial or a non-custodial sentence

Step 5: D pleads guilty in magistrate court = step 4 is binding

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47
Q

In the magistrate court is the court required to give indication of sentence?

A

No, only optional

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48
Q

In the magistrate court what can information can they give in regards to the indication of sentence?

A

whether the sentence would be custodial or non-custodial.

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49
Q

If D plead not guilty would the indication of sentence by the court in the magistrate court apply?

A

No, the indication of sentence is only binding if D pleads guilty.

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50
Q

What is the formal procedures for seeking an indication of sentence in the event of a guilty plea in the Crown Court?

A

Step 1: Asked for indication before the jury return with their verdict at any stage of their proceedings or before the PTPH? Yes

Step 2: Did D must:

  • Either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court.
  • Give clear instruction to their counsel that D wishes to ask for an advance indication of sentence.

= D can ask for indication

Step 4: Judge will decide whether to give an indication of sentence or not

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51
Q

When can D ask for an indication of Sentence in the Crown Court?

A

Either

a) before the PTPH

or

b) at any stage of the proceeding before the jury return their verdict

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52
Q

What should D do before asking for an indication in the Crown Court?

A

Did D must:

  • Either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court.
  • Give clear instruction to their counsel that D wishes to ask for an advance indication of sentence.

= D can ask for indication

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53
Q

In the Crown Court is the court required to give indication of sentence?

A

No.

The giving of an indication is discretionary and it remains the decision of the judge whether to give one or not.

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54
Q

How does the court determine seriousness?

A

By considering:

1) Culpability (D’s culpability in committing the offence)

&

2) Harm (which the offence i) caused, ii) was intended to cause, or iii) might foreseeably have caused

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55
Q

What is Culpability?

A

The blameworthiness

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56
Q

How is Culpability assessed?

A

With reference to:

1) the offenders role

2) the level of intention

and/or

3) premeditation and the extent and sophistication of planning.

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57
Q

Can the mere presence of a factor that is inherent in the offence be used in assessing culpability?

A

No

For example: the intention to cause serious harm is necessary element in section 18 OPA. what would increase culpability might be how the injuries were inflicted e.g with a weapon.

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58
Q

What is Harm?

A

An assessment of the damaged caused to the V

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59
Q

What is the statutory threshold has been passed to justify imposing a custodial sentence?

A

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 and one or more offences associated with it,

was SO SERIOUS that neither a fine alone nor a community sentence can be justified for the offence

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60
Q

What is the statutory threshold has been passed to justify imposing community order?

A

S. 204 SA 2020:

(2) 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.

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61
Q

What is the seriousness threshold for custodial sentence ?

A

Unless….. So serious….

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62
Q

What is the seriousness threshold for a community order?

A

Unless… was serious enough…

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63
Q

Does the court have to follow any sentencing guidelines which are relevant to the offender’s case?

A

Yes

Every Court MUST follow any sentencing guidelines which are relevant to the offender’s case

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64
Q

When can a court not follow any sentencing guidelines which are relevant to the offenders case?

A

Unless the court is satisfied that it would be contrary to the interests of justice to do so.

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65
Q

What is the sentencing guidelines for most significant offences sentenced in the magistrate court called?

A

Sentencing guidelines for use in the magistrates courts

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66
Q

What is the sentencing guideline for wide range of offences in the Crown Court called?

A

Sentencing guidelines for use in the Crown Court

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67
Q

What will the court refer to where there is no offence-specific sentencing guideline to exist?

A

The General guideline: overarching principle

Crown Court might also refer to Court of appeal judgements to look at how sentences have been reached for similar cases.

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68
Q

What should the court refer to an where factors are not covered and an overarching guidance is required?

A

The General guideline

with

Offence specific guideline

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69
Q

What happens at a sentencing hearing?

A

1) Prosecution: open facts make submissions & applications

2) Defence mitigate

3) Judge passes sentence

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70
Q

What are the duties of a prosecutor?

A

The duties of a prosecutor extend to reminding the court of the following:

1) any previous convictions

2) any ancillary orders that the prosecution seeks (e.g cots, compensation, restraining order)

3) Any relevant sentencing guidelines

4) any general sentencing issues necessary to ensure that a lawful sentence is passed (e.g the mandatory minimum sentence provisions)

5) any victim impact statement which has been produced.

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71
Q

What does the role of prosecution not include?

A

To tell the court or to suggest to the court what the ultimate sentence may be

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72
Q

What is the general duty for the prosecutor and the defence in a sentence hearing?

A

General Duty: to ensure that a lawful sentence is passed

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73
Q

How can legal representative ensure they abide the general duty in a sentence hearing?

A

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

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74
Q

When can a pre sentence report be ordered?

A

At the Plea

&

Trail preparation hearing

or

even at the time of sending.

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75
Q

What is the result of a pre-sentence report ordered by the court ?

A

The case will ordinarily be adjourned for a period for this to happen.

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76
Q

What is a pre-sentence report?

A

The 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 or asses D’s suitability for any programmes.

The probation officer will meet D and discuss the offence and D’s attitude towards it.

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77
Q

Why is a Probation input needed?

A

Probation input is needed before a community order can be imposed or asses D’s suitability for any programmes.

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78
Q

What is the role of a probation officer?

A

The probation officer will meet D and discuss the offence and D’s attitude towards it.

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79
Q

Can the a court pass a custodial or community sentence without obtaining a presentence report?

A

S. 30 SA 2020

A court must obtain a pre-sentence report before passing a custodial or community sentence, unless it considers it unnecessary to do so.

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80
Q

Other than a pre-sentence report, what other reports are needed if the court is contemplating a sentence pursuant to the Mental Health Act 1983?

A

It must receive evidence from 2 medical practitioners stating that in their opinion D is suffering from a mental disorder.

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81
Q

What is the approach the court should take for sentencing?

A

The Code confirms:

1) Determine offence seriousness

2) Consider aggravating factors (both statutory and other non-statutory matters)

3) Consider mitigating factors (those reducing seriousness)

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

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82
Q

How does the court determine the category of sentencing guidelines applies?

A

For most offence, the sentencing guideline set out the appropriate range of sentence base 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 offence category would be 1, the lowest 3 and the middle category is 2.

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83
Q

What will happen when the category of the offence is determined?

A

The judge will have a starting point and range of sentence.

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84
Q

How is the range of sentence determined?

A

Based on the category of the offence.

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85
Q

What will happen after the category of the offence is determined?

A

The court will consider aggravating and mitigating factors which will then result in an upward or downward adjustment from the starting point.

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86
Q

What are common aggravating statutory factors?

A

Previous conviction(s), particularly where a pattern of repeat offending is disclosed

Offence committed whilst on bail for other offences

Offence was racially or religiously aggravated

Offence motivated by, or demonstrating, hostility to the victim based on his sexual orientation (or presumed sexual orientation) or on the victim’s disability ( or presumed disability)

Commission of an offence while under the influence of alcohol or drugs

Planning of an offence

Offenders operating in groups or gangs

‘Professional’ offending

Commission of the offence for financial gain (where this is not inherent in the offence itself)

High level of profit from the offence

An attempt to conceal or dispose of evidence

Failure to respond to previous sentences

Offence committed whilst on licence

Offence motivated by hostility towards a minority group, or a member or members of it

Use of a 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

An especially serious physical or psychological effect on the victim, even if unintended

Victim is particularly vulnerable

Deliberate targeting of vulnerable victim(s)

An intention to commit more serious harm than actually resulted from the offence

Location of the offence (for example, in an isolated place)

A 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 eg relatives, especially children or partner of the victim

Additional degradation of the victim (e.g. taking photographs of a victim as part of a sexual offence)

Abuse of a position of trust

Abuse of power

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87
Q

What are common mitigating factor?

A
  • A greater degree of provocation than normally expected
  • Mental illness or disability
  • Youth or age, where it affects the responsibility of the individual D
  • The fact that the offender played only a minor role in the offence
  • Good Character and/or lack of previous conviction
  • Any personal mitigation
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88
Q

What is a credit for a guilty plea?

A

D are given ‘credit’ or a discount on their sentence if they plead guilty

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89
Q

How is the amount of credit determined?

A

When the guilty plea was entered

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90
Q

What is the first stage of proceeding that will be recorded by court, when considering credit for a guilty plea?

A

The first stage of proceedings will normally be the first hearing at which a plea or indication of a plea is sought and recorded.

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91
Q

What is the safest way D can obtain maximum credit?

A

Either by:

a) Entering a guilty plea to a summary only or either way offence at the first hearing

or

b) where the matter is indictable only, by providing an unequivocal indication at the first hearing that D intends to plead guilty and that D’s defence team will contact the Crown Court to arrange for this to happen imminently.

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92
Q

What is the safest way D can obtain maximum credit for a summary only offence or either way offence?

A

Entering a guilty plea to a summary only or either way offence at the first hearing

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93
Q

What is the safest way D can obtain maximum credit for an indictable only offence?

A

where the matter is indictable only, by providing an unequivocal indication at the first hearing that D intends to plead guilty and that D’s defence team will contact the Crown Court to arrange for this to happen imminently.

94
Q

What is the max credit if D pleads guilty at first stage of proceedings?

A

Max 1/3

95
Q

What is the max credit if D pleads guilty after first stage of proceedings?

A

Max 1/4

96
Q

What is the max credit if D pleads guilty at the day of trail?

A

Max 1/10

97
Q

What does the court have to do when passing a sentence?

A

1) Explain to D in non-technical language the sentence that has been passed

2) Identify the sentencing guidelines that it followed or why it decided not to follow guidelines that exist.

3) Explain why D passes the custody threshold if a custodial sentence is passed

4) Explain what credit has been given for a guilty plea and why it is at that level

5) Set out any particular aggravating and mitigating factors that the court considered in arriving at sentence

98
Q

What type of sentence is a bind over?

A

Non-custodial sentence

99
Q

What type of sentence is an absolute discharge?

A

Non-custodial sentence

100
Q

What type of sentence is a conditional discharge?

A

Non- custodial sentence

101
Q

What type of sentence is a fine?

A

Non-custodial sentence

102
Q

What type of sentence is a community order?

A

Non-custodial sentence

103
Q

What is a bind over?

A

Where a person is bound over by a court to ‘keep the peace’ for a sum of money that they forfeit if they fail to do so.

104
Q

Who can impose a bind over?

A

Magistrate court

&

Crown Court

105
Q

When can a bind over be imposed?

A

Imposed on someone, instead of them entering a guilty plea or being tried for an offence. It can even be imposed following an acquittal or on a witness in a case

106
Q

Can a bind over be imposed on a witness in a case?

A

Yes

107
Q

Can a bind over be imposed on acquittal?

A

Yes

108
Q

What is an absolute discharge?

A

S.79 SA 2020

Is the lowest form of sentence available.

It is in effect no punishment at all since there is nothing D must do or not do to comply with it.

109
Q

When is an absolute discharge imposed?

A

It is usually imposed to reflect:

  • either the triviality of an offence,

-the circumstances in which an offender came to be prosecuted

or

-special factors relating to the offender.

110
Q

Who can impose an absolute discharge?

A

Magistrate court

&

Crown Court

111
Q

What is a conditional discharge?

A

S.80 SA 2020:

A discharge bit with a condition attached to it.

The condition is that if D commits another offence during the period specified, they can be re-sentenced for the original offence and sentenced for the new offence.

The specified period must be no more than 3 years!

112
Q

What is the time limit for the specified period for a conditional discharge that the court can impose?

A

The specified period must be no more than 3 years!

113
Q

Who can impose a conditional discharge?

A

Magistrate court

&

The Crown Court

114
Q

Who can impose a fines?

A

Magistrate court

&

Crown Court

115
Q

What is the limit for the amount a court can fine D?

A

Crown Court: any amount with no upper limit

Magistrate court: fines are set on a standard scale from level 1 (200) to level 5 (unlimited)

116
Q

What is a fine?

A

A fine is a financial penalty that requires D to pay a certain sum of money to the court on conviction.

117
Q

When does the fine be paid?

A

The amount is due immediately and can only be paid in instalments with the agreement of the court

118
Q

What happens if an offender fails to pay their fine?

A

They may be brought back to the magistrate court (irrespective of which court issues the fine and as a last resort D can be sentenced to a period of imprisonment.

119
Q

When can a fine be imposed?

A
  • On conviction (guilty plea or verdict ) of any offence unless specifically prohibited by statute.
  • alongside any other sentence (except for a hospital order)

or

  • alongside a discharge (conditional or absolute) when sentencing for a single offence.
120
Q

Can fines be combined with imprisonment?

A

Yes

There is no general prohibition on doing so, it is generally accepted however as undesirable to combine a fine with imprisonment.

121
Q

Can the court enquire of D means before imposing a fine? and how?

A

Yes,

They can enquire in person or through their advocate. By asking D to fill in a means form in which they set out their income and outgoing.

122
Q

What is a community order?

A

Is a sentence that requires D to comply with one or more requirements to punish and/or rehabilitate a D in the community.

123
Q

When can a court make a community order?

A

s.204 Sentencing Act 2020

The court must not make a community order unless it is of the opinion that the offence or the combination of the offence and one or more offences associated with it was SERIOUS ENOUGH to warrant making of such an order.

124
Q

What is the maximum length of a community order?

A

3 years

125
Q

Can a community order be imposed by an offence that is not punishable ?

A

No

126
Q

Can a community order be imposed by an offence that is punishable ?

A

Yes

127
Q

Can a community order be imposed to the offender over 18 ?

A

Yes

128
Q

Can a community order be imposed to the offender under 18 ?

A

No

129
Q

What are the requirements are need for an offender to qualify to be imposed a community order ?

A

The offender must be

  1. Over 18

and

  1. The offence must be punishable with imprisonments.
130
Q

What happens after a defendant completes their community order within the time period specified?

A

The defendant or the Probation service may apply for the order to be discharged.

131
Q

Does the court need to follow the probation officers recommendation for a community order?

A

No

132
Q

What does the court need to obtain before imposing a community order?

A

a pre-sentence report, unless the court thinks its unnecessary to do so (obvious that a requirement is suitable)

133
Q

What are the requirements in a community order?

A
  1. Unpaid Work Requirement
  2. Rehabilitation Activity Requirement
  3. Programme Requirement
  4. Prohibited Activity Requirements
  5. Curfew Requirement
  6. Exclusion Requirement
  7. Foreign Travel Prohibition Requirement
  8. Mental Health Treatment Requirement
  9. Residence Requirements
  10. Drug Rehabilitation Requirement
  11. Alcohol Treatment Requirement
  12. Alcohol abstinence and Monitoring Requirement
  13. Attendance Centre Requirement
  14. Electronic Monitoring Requirement.
134
Q

How many requirement must impose when making a community order?

A

The court must impose at least one of the requirements

135
Q

What should the court must/ may regard when imposing a requirement?

A
  1. The maximum length of a community order is three years.
  2. A community order must have have at least one requirement, including a punitive element unless a fines is imposed or there are exceptional circumstances that would make it unjust
  3. Multiple requirements must be compatible with one another.
  4. Requirement/s must avoid conflict with the offender’s religious belief and/or inference with the offender’s times of work and/or education
  5. The court may have regard to any period spent on remand or qualifying electrical monitored curfew when determining the restrictions/s on liberty which such a sentence imposes.
136
Q

What are the consequences if an offender fails without reasonable excuse to comply with any requirements of their community order, for the first time ?

A

The offender must be warned that their failure is unacceptable

137
Q

What are the consequences if an offender fails without reasonable excuse to comply with any requirements of their community order, for the second time ?

A

Breach proceedings must be instituted against the offender

138
Q

What is breach proceeding for an offender fails without a reasonable excuse to comply with any requirements of their community order, for the second time?

A

1) Offender will be brought back before the court and have the breach put to them.

2) Offender either

a) Deny breach

or

b) Admit breach

3)

a) Deny breach: the court will hold a trial as to whether there was a failure without reasonable excuse. if there was a breach then 3 (b) apply.

b) Admit breach: The court must deal with them in one of the following ways:

  • By amending the order to make it onerous
  • By fining the offender up to £2,500
  • By revoking the Community order and re-sentencing the offender for the offence in respect of which the order was made. (court applies this then the court must take into account the extent to which the offender has complied with the order)
139
Q

If the offender admits the breach or the court finds that there was a breach following a denial for a community order, How must the court deal with the offender?

A

In one of the ways set out in Sch 10 SA 2020:

1) By amending the order to make it onerous

2) By fining the offender up to £2,500

3) By revoking the Community order and re-sentencing the offender for the offence in respect of which the order was made. (court applies this then the court must take into account the extent to which the offender has complied with the order)

140
Q

If a court revokes the community order and re-sentences the offender for the offence in respect of which the order was made, what must the court take into account?

A

The extent to which the offender has complied with the order.

141
Q

Can the court extend the period of the community order? and for how long?

A

Yes, the court is able to extend the period of the community order by up to 6 months beyond the usual 3 year limit if necessary.

142
Q

How many times can a court extend the period of the community order? and for how long?

A

The court is able to extend once only, by up to 6 months beyond the usual 3 year limit if necessary.

143
Q

If the offender has wilfully and persistently breach the requirements of community order, and the court decides to revoke the community order and re-sentence the offender for the offence in respect of which the order was made, what are the courts powers?

A

The court has the power to impose a custodial sentence not exceeding 6 months, even in respect of an offence which was not an offence punishable with imprisonment

144
Q

Is sentencing a community order within the Magistrates’’ court power?

A

Yes

145
Q

Is sentencing a community order within the Crowns Court power?

A

Yes

146
Q

What are the different types of custodial sentences?

A

1) Determinate custodial sentences

2) Suspended Determinate Custodial Sentences

3) Minimum Sentences for Certain offences

4) Extended determinate sentences (EDS)

5) Mandatory life sentence for murder

6) Other Statutory life sentences

146
Q

When can a custodial sentence be passed?

A

Must not be passed unless the court is satisfied that the offence/s are so serious that neither a fine nor a Community order can be justified.

147
Q

How can the court determine the seriousness of an offence and the length of sentence?

A

Through the sentencing guidelines

148
Q

What is a determinate custodial sentence?

A

A prison sentence for a defined period of time.

149
Q

Who has the power to impose a determinate custodial sentence?

A

Both the magistrate and the Crown Court.

150
Q

What is the magistrates court power to impose a determinate custodial sentence?

A

Court can impose a maximum of:

1) 6 months for summary only offence

2) 6 months for a single either way offence

or

3) 12 months for 2 or more either way offences.

*Subject to the statutory maximum below

151
Q

What is the Crown Court power to impose a determinate custodial sentence?

A

Unlimited powers of imprisonment subject to the statutory maximum for each offence.

152
Q

If an offence statutory maximum below the court’s overall maximum sentencing power, can the court sentence the offence to the court’s overall maximum sentencing power?

A

No, they must follow the statute

153
Q

If an offence statutory maximum below the court’s overall maximum sentencing power, can the court follow the statute?

A

Yes, the court must follow statute.

154
Q

When must a judge consider totality when passing custodial sentences?

A

1) Sentences for multiple offences

and

2) whether sentences should run consecutively or concurrently.

155
Q

If a defendant has been remanded in custody for any period prior to a determinate custodial sentence, would that period be automatically counted towards their sentence?

A

Yes, That period is automatically counted towards their sentence

156
Q

Who administrates, the period that a defendant has been remanded in custody for any period prior to sentence?

A

This is administrated by the Home Office once the defendant is serving

157
Q

If a defendant has been on bail with a curfew condition, which was electronically monitored, would that period be automatically counted towards their determinate custodial sentence?

A

No, the court must expressly state that the time under curfew counts.

158
Q

If a defendant has been on bail with a curfew condition, which was electronically monitored, what is the numbers of hours under curfew which enables them to be entitled to credit towards their determinate custodial sentence?

A

At least 9 hours

159
Q

If a defendant has been on bail with a curfew condition, which was electronically monitored, and the court expressly stated that time under curfew counts, how is each day of bail calculated for a determinate custodial sentence?

A

Each day on bail is calculated as equal to half a day serving a prison sentence and rounded up to the nearest whole number.

160
Q

If a defendant has been on bail with a curfew condition, which was electronically monitored, and the court expressly stated that time under curfew counts.

But the defendant has days were they breached their curfew, would the days upon which the curfew was breached count?

A

No, any days upon which the curfew was breached does not count towards this calculation

161
Q

What sentence type is a determinate custodial sentence?

A

A custodial sentence

162
Q

What sentence type is a suspended sentence of imprisonment?

A

A custodial sentence

163
Q

Is a determinate custodial sentence, result in immediate imprisonment?

A

Yes

164
Q

Is a suspended sentence of imprisonment, result in immediate imprisonment?

A

No

165
Q

When is a suspended sentence of imprisonment be imposed?

A

1) Offence crosses the custody threshold BUT

2) D fulfil certain criteria

166
Q

Can a defendant avoid prison entirely through a suspended sentence of imprisonment?

A

Yes

167
Q

Who has the power to impose a suspended sentence of imprisonment?

A

Both the magistrates court and the Crown Court.

168
Q

What is the magistrates court power to impose a suspended sentence of imprisonment?

A

May suspend any determinate custodial sentence of between 14 days and 6 months

169
Q

What is the Crown Court power to impose a suspended sentence of imprisonment?

A

The crown court may suspend any determinate custodial sentence of between 14 days and 2 years

170
Q

What are the elements of a suspended sentence of imprisonment?

A

1) The custodial term

2) The operational period

3) The supervision period

171
Q

What does the court consider in the custodial term element, in a suspended sentence of imprisonment?

A

How long a custodial term they would have received but for it being suspended

172
Q

What does the court consider in the operational period element, in a suspended sentence of imprisonment?

A

How long the defendant must be supervised for. This must be between 6 months and 2 years.

173
Q

How long can a operational period in a suspended sentence of imprisonment last?

A

This must be between 6 months and 2 years.

174
Q

What does the court consider in the supervision period element, in a suspended sentence of imprisonment?

A

How ling the defendant must be supervised by the Probation Service. (This is optional)

175
Q

How long can a supervision period in a suspended sentence of imprisonment last?

A

Between 6 months and 2 years and equal to or shorter than the operation period.

176
Q

If D completes/complies with the suspended sentence of imprisonment, what is the result?

A

They may not serve the sentence of imprisonment

177
Q

If D fails to comply with the supervision period with the suspended sentence of imprisonment, what is the result?

A

D would have breached the suspended sentence then D must be,

warned of their first breach

and

if they commit another breach within 12 months of a warning

= breach proceedings will then be instituted.

178
Q

If D fails to comply with any of Community Order requirement with the suspended sentence of imprisonment, what is the result?

A

D would have breached the suspended sentence then D must be,

warned of their first breach

and

if they commit another breach within 12 months of a warning

= breach proceedings will then be instituted.

179
Q

What sentence type of a minimum sentence for a third domestic burglary or third Class A trafficking drug offence?

A

A custodial sentence

180
Q

When is a mandatory minimum sentence imposed?

A

For some serious offences, statute prescribes a minimum sentences that must be imposed unless there are exceptional circumstances.

181
Q

What are offences, that the statue prescribes minimum sentences to? and what is the minimum sentence?

A

1) 3rd Class A trafficking drug offence: 7 years imprisonment

2) 3rd domestic burglary: 3 years

3) Certain firearms offences: 5 years

4) 2nd offence of possessing a weapon: 6 months

5) Threatening with a weapon: 6 months

182
Q

What is the minimum sentence for a 3rd Class A trafficking drug offence?

A

7 years imprisonment

183
Q

What is the minimum sentence for a third domestic burglary?

A

3 years imprisonment

184
Q

What is the minimum sentence for certain firearms offences?

A

5 years

185
Q

What is the minimum sentence for second offence of possessing a weapon?

A

6 months

186
Q

What is the minimum sentence for threatening with a weapon?

A

6 months

187
Q

Who can impose a mandatory minimum sentence for a third domestic burglary?

A

The Crown Court

188
Q

Does a magistrates court have jurisdiction to impose a mandatory minimum sentence for a third domestic burglary?

A

No

189
Q

Does a Crown Court have jurisdiction to impose a mandatory minimum sentence for a third domestic burglary?

A

Yes

190
Q

Who can impose a mandatory minimum sentence for a third Class A trafficking drugs offence?

A

The Crown Court

191
Q

Does a Crown Court have jurisdiction to impose a mandatory minimum sentence for third Class A trafficking drugs offence?

A

Yes

192
Q

Does a magistrates court have jurisdiction to impose a mandatory minimum sentence for third Class A trafficking drugs offence?

A

No

193
Q

What elements must be satisfied for a mandatory minimum sentence to be imposed for a Class A drug offence?

A

(a) The defendant must have committed three Class A drug trafficking offences.

(b) They must chronologically have occurred in this order:

(i) Commission of offence 1

(ii) Conviction (plea/verdict of guilty) of offence 1

(iii) Commission of offence 2

(iv) Conviction (plea/verdict of guilty) of offence 2

(v) Commission of offence 3

(vi) Conviction (plea/verdict of guilty) of offence 3

194
Q

If D has been convicted of Class A drug trafficking offence for the third time, what is the minimum sentence can a court impose?

A

7 years unless, it would be unjust to do so.

195
Q

If D enters a guilty plea at the first opportunity of Class A drug trafficking offence for the third time, can be the final sentence be reduced?

A

Yes

The reduction must be such that the final sentence is at least 80% of the minimum seven-year term.

unless the court states that it would unjust to pass the minimum term, in which case the final sentence can be below the 80% of the prescribed minimum term.

196
Q

If D enters a guilty plea at the first opportunity of Class A drug trafficking offence for the third time, how much van the final sentence be reduced?

A

The reduction must be such that the final sentence is at least 80% of the minimum seven-year term.

unless the court states that it would unjust to pass the minimum term, in which case the final sentence can be below the 80% of the prescribed minimum term.

197
Q

If D enters a guilty plea at the first opportunity of Class A drug trafficking offence for the third time, when can the court impose a final sentence below the prescribed minimum term?

A

The court states that it would unjust to pass the minimum term, in which case the final sentence can be below the 80% of the prescribed minimum term.

198
Q

For a mandatory minimum sentence for a third domestic burglary, do all the qualifying offences must be domestic burglaries?

A

Yes,

For burglary, all of the qualifying offences must be domestic burglaries

199
Q

How many burglary offence at a time does D have to commit to be qualify for a minimum sentence?

A

Defendants are often sentences for more than one burglary offence at a time.

A defendant may therefore commit:

1) 12 domestic burglaries and be convicted of those. One of those will count as commission 1 and conviction 1.

2) 18 further domestic burglaries after the first 12, which will count as commission 2 and conviction 2.

3) 20 further domestic burglaries which will count as commission 3 and conviction 3.

However, given these are minimum terms the court is, of course, at liberty to pass a longer sentence than the three years…

200
Q

If D enters a guilty plea of a third domestic burglary, what is the maximum reduction can the court impose?

A

20% reduction on a guilty plea

201
Q

When is an Extended determinate sentence imposed?

A

EDS is imposed in certain types of case and where the court has found that the offender is dangerous.

202
Q

Which certain types of cases can implement an EDS ?

A

Specified violent, sexual or terrorism offences

203
Q

In a EDS is the licence period extended?

A

Yes, as an extended licence period is required to protect the public from risk of harm.

204
Q

In a EDS is the custody period extended?

A

No, the licence period only.

205
Q

Who can impose an EDS?

A

The Crown Court

206
Q

Does a Crown Court have jurisdiction to impose an EDS?

A

Yes

207
Q

Does a magistrates court have jurisdiction to impose an EDS?

A

No

208
Q

What type of sentence is an EDS?

A

A custodial sentence

209
Q

In EDS, how long can extension licence period be extended to?

A

The extension period must—

(a)be at least 1 year, and

(b)not exceed—

(i)5 years in the case of a specified violent offence;

(ii)8 years in the case of a specified sexual offence or a specified terrorism offence.

210
Q

Can the overall term of an EDS imposed exceed the maximum term permitted for the offence?

A

No

The overall term of an EDS imposed CANNOT exceed the maximum term permitted for the offence

211
Q

Can a prisoner serving an EDs be eligible to apply for parole?

A

Yes,

A prisoner serving an EDs be eligible to apply for parole at the 2/3 point of the custodial term and must be released at the end of the custodial period.

212
Q

When can a prisoner serving an EDs be eligible to apply for parole?

A

At 2/3 point of the custodial term and must be released at the end of the custodial period

213
Q

When can the court impose a mandatory life sentence?

A

Where D is convicted of murder.

214
Q

Does the court have discretion to pass any other sentence, other than a mandatory life sentence for murder?

A

No

The court has no discretion to pass any other sentence.

215
Q

Is a mandatory life sentence available for any other offence than murder?

A

No

216
Q

What type of sentence is a mandatory life sentence?

A

A custodial sentence

217
Q

Who can impose a mandatory life sentence?

A

The Crown Court

218
Q

Does a magistrates court have jurisdiction to impose a Mandatory life sentence?

A

No

219
Q

Does a Crown Court have jurisdiction to impose a Mandatory life sentence?

A

Yes

220
Q

What is the procedure for a mandatory life sentence?

A

1) On sentence: Court will fix a minimum term

2) Minimum term expired = D can apply for release to the Parole Board

3) Parole Board decides as to when D is released

4) If released D remains on licence for life.

221
Q

If D’s minimum term for a mandatory life sentence expires, who should D apply for to be released?

A

The Parole Board

222
Q

Who has the ultimate discretion as to when D is released?

A

The Parole Board

223
Q

How is the minimum term for murder decided?

A

The minimum term for murder is based on the starting points set out in Schedule 21 of the Sentencing Code. The Judge will decide which starting point applies and then adjust it based on the aggravating and mitigating factors present.

224
Q

What is a whole life order?

A

For most serious cases of murder, which means that their crime was so serious that they will never be released from prision.

225
Q

What are the starting points for murder?

A

15 years

25 years

and

30 years

226
Q

When is a Statutory life sentence imposed?

A

For offenders who are considered dangerous

or

who are convicted of a second, very serious offence

= may be sentenced to imprisonment for life

227
Q

Which provisions contain the statutory life sentence?

A

SA 2020

228
Q

Is there any discretion for the court when imposing these life sentence.

A

Yes

229
Q

When is a statutory life sentence for dangerous offenders?

A

Life for dangerous offenders

Where an offender is:

1) convicted of an offence set out in Schedule 19 of the Sentencing Code; and

2) the court is of the view that the offender is dangerous; and

3) the offence justifies a life sentence.

230
Q

When is a statutory life sentence for second listed offences?

A

Where an offender is:

1) convicted of an offence set out in Schedule 15 of the Sentencing Code; and

2) both the sentence condition and the previous conviction condition are satisfied;

3) unless it would be unjust to impose a life sentence.

231
Q

What type of sentence is a statutory life sentence?

A

A custodial sentence

232
Q

Who can impose a statutory life sentence?

A

The Crown Court

233
Q

Does a magistrates court have jurisdiction to impose a statutory life sentence?

A

No

234
Q

Does a Crown court have jurisdiction to impose a statutory life sentence?

A

Yes

Criminal Litigation (20 decks)

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