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Criminal Litigation > Sentencing, ancillary orders and costs > Flashcards

Sentencing, ancillary orders and costs Flashcards

1
Q

In what circumstances might it be appropriate for the magistrates’ court to grant an offender an absolute discharge?

A

Trivial offences

to reflect the circumstances in which the offence came to be prosecuted

Where there are special factors relating to the offender

Where the court is of the opinion that it would inexpedient to inflict punishment.

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2
Q

Are absolute discharges available for all offences?

A

No. Not available for those listed in section 12(1) PCC(S)A, e.g. murder, mandatory minimums.

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3
Q

What are the potential consequences for an offender committing a new offence during the currency of his/her conditional discharge?

A

A court may sentence the offender for the original offence in the usual manner.

A crown court dealing with a person conditionally discharged by the magistrates’ court is limited to the lower court’s powers under section 13(7).

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4
Q

How can a conditional discharge be breached?

A

By the conviction of the offender of a further offence COMMITTED during the period of discharge - see PCC(S)A s13(1).

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5
Q

TRUE of FALSE. A Mags court dealing with a CD breach imposed by a different Mags court can only do so with the consent of the original court.

A

TRUE - see section 13(8).

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6
Q

What is the sole condition of a conditional discharge?

A

The offender must commit no further offences during the period of discharge, which has a maximum length of three years.

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7
Q

What is the maximum fine that a magistrates’ court may impose for a single summary only or either-way offence?

A

£5000, but anything post 12 March 2015 will be unlimited in most cases.

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8
Q

When fixing the amount of a fine, what factors must the magistrates consider?

A

The proportionality of the fine to the gravity of the offence. (e.g. fine inappropriate where custodial sentence is more appropriate).

The means of the offender (if fine is beyond their means, that is wrong in principle)
- If a fine could easily be paid off, do not impose custodial sentence purely on that basis. Just raise the fine.

Do not assume that someone other than the offender will pay the fine.

Consider payment of instalments in a reasonable time, usually within 12 months (Nunn case).

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9
Q

What other sentences can a fine be combined with?

A

Custodial sentence (although often not desirable!)

Community order

Discharge, but only if sentencing for different offences.

Compensation order (but for impecunious defendants, priority given to paying compensation over fine)

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10
Q

What are the potential consequences for an offender who fails to pay his or her fine?

A

The Court may issue a summons and conduct an inquiry to investigate their ability to pay (section 83 MCA).
- May require evidence of income/outgoings.

The Court may grant further time for payment, arrange different payment plan, or reduce the amount.

The Court may order imprisonment only if D is already serving a custodial sentence, if D has means to pay immediately and offence was punishable by imprisonment, OR where the default is due to ‘wilful refusal or culpable neglect’.

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11
Q

In what circumstances might the magistrates impose a compensation order?

Must reasons be given if they don’t?

Are there any limits on the amount?

A

See sections 130 - 134 PCC(S)A 2000.

For personal injury, loss or damage resulting from the offence, or to make payments for funeral expenses/bereavement in respect of a death resulting from the offence.

A court shall give reasons if it does not make a compensation order in a case where it is empowered to do so.

No limit on amounts of compensation that can be ordered.

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12
Q

In what circumstances are magistrates obliged to obtain a pre-sentence report?

A

When determining whether to impose a custodial or community sentence, unless it appears to be ‘unnecessary’ to the court. (section 156 CJA 2003)

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13
Q

What must the court be satisfied of before it can pass a community sentence?

A

Under section 148, only pass a community sentence if the offence is serious enough to warrant such a sentence.

The requirements of the community sentence must be the most suitable for the offender, and must be commensurate with the seriousness of the offence.

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14
Q

What is the maximum length of a community order?

A

3 years: section 177(5) CJA 2003.

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15
Q

What requirements can be attached to a community order?

A

Unpaid work

Rehab activity

Programme requirement

A prohibited activity requirement

A curfew requirement

An exclusion requirement

A residence requirement

A foreign travel prohibition order requirement

A mental health treatment requirement

An alcohol treatment requirement

An alcohol abstinence and monitoring requirement

Attendance centre requirement

Electronic monitoring requirement

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16
Q

What is the maximum period of imprisonment that can be imposed with a suspended sentence in the magistrates’ court?

A

6 months. Sentences must be 14 days or longer.

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17
Q

Does the court have to impose requirements alongside a suspended sentence?

A

No, LASPO s68 removed this need. However, they are common.

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18
Q

What is the maximum duration of the operational period and the supervision period of a suspended sentence imposed in the Mags’?

A

Each must be at least 6 months, and no more than two years beginning with the date of the order.

The supervision period must not end later than the operational period.

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19
Q

What options are available to the court if an offender fails to comply with a requirement imposed by the court, or commits another offence during the operational period?

A

Order the suspended sentence to take effect, or have a lesser term.

Order a fine not exceeding £2500.

Add more onerous community requirements

Extend the supervision and/or operatonal periods.

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20
Q

Unless a statute prescrives a lesser term, what is the maximum custodial term that can be imposed for an imprisonable summary offence?

A

Six months under s78(1) PCC(S)A 2000.

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21
Q

What is the maximum term for a single either-way offence being sentenced in the magistrates’ court?

A

6 months under s78(1) PCC(S)A 2000.

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22
Q

What is the maximum aggregate sentence for two or more summary offences?

A

6 months imprisonment under s133 MCA.

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23
Q

What is the maximum aggregate sentence for two or more either-way offences in the Mags?

A

12 months under s133 MCA.

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24
Q

What are the four stages of the custody threshold exercise?

A

Has the custody threshold been passed?

Is it unavoidable that imprisonment is imposed?

What is the shortest term commensurate with the seriousness of the offence?

Can the sentence be suspended?

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25
Q

TRUE or FALSE. Use of simple cautions are down to the police.

A

TRUE, although the CPS can advise.

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26
Q

TRUE OR FALSE. Simple cautions preclude private prosecutions.

A

FALSE.

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27
Q

Under s22(3) CJA, conditional cautions have three purposes:

A

Rehabilitation
Reparation
Punishment

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28
Q

Conditional cautions can be imposed under s23 CJA if: (5)

A

There is evidence that D committed the offence;

The CPS/police decide to issue a conditional caution;

There is a clear and reliable admission by the offender;

The effect of the caution is explained, including the consequences of non-compliance;

The document must be signed, containing information re admission / consent.

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29
Q

For what kind of offenders are cautions typically used?

A

First time offences
Elderly offenders
Ill offenders

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30
Q

TRUE or FALSE. An offender must consent to the caution.

A

TRUE.

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31
Q

TRUE or FALSE. An offender must admit guilt in order to be admitted a caution.

A

TRUE.

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32
Q

TRUE or FALSE. A simple caution can be given for indictable-only offences.

A

TRUE, with the consent of the DPP and exceptional circumstances.

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33
Q

What happens if an offender breaches their caution conditions?

A

It is likely that they will be prosecuted for the original offence, and the signed caution document will be admissible as evidence.

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34
Q

TRUE or FALSE. Similar previous convictions are relevant when deciding whether to impose a conditional caution.

A

FALSE.

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35
Q

Section 142(1) CJA requires a sentencer to have regard to the five purposes of sentencing, which are:

A 
Punishment
Reduce crime
Reform and rehabilitation
Protect the public
Make reparations
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36
Q

What are the two main parameters for determining seriousness under section 143(1) CJA?

A

Culpability

Harm

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37
Q

Custody threshold under s152(2) CJA says to only apply a custodial sentence…

A

…where the offence is so serious that a fine or community sentence is not justified.

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38
Q

Section 148(1) CJA says to only apply a community sentence…

A

…if the offence is serious enough to warrant it.

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39
Q

Section 151 says that if an offender has three previous fines…

A

…a community sentence can be imposed even if the offence is not serious enough to merit it.

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40
Q

How relevant is prevalence in determining sentence?

A

Normally, try and only consider individual instance of the offence.

However, exceptional circumstances may allow a court to invite external, reliable evidence of a widespread harm to the communiyt resulting from offences such as this in the local area.

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41
Q

What impact can a list of previous convictions have on proceedings?

A

Affect sentencing

Affect good character claims

Aggravate the sentence

Impact bail applications

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42
Q

What are the two kinds of discharge that a court can issue for someone convicted of an offence, under section 12 PCC(S)A 2000?

A

Conditional

Absolute

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43
Q

TRUE or FALSE. A discharge can be combined with a punitive measure for the same offence.

A

FALSE. It can only be combined where expressly permitted by statute.

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44
Q

Section 163 CJA 2003 gives the general power to the Crown Court to…

A

Impose a fine on an offender convicted on indictment.

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45
Q

What is a financial circumstances order?

A

An order requiring the relevant individual to give to the court, within such period as may be specified in the order, such a statement of his assets and other financial circumstances as the court may require.

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46
Q

What happens if someone fails to comply with a financial circumstances order?

A

Liable on summary conviction to a fine not exceeding Level 3.

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47
Q

What happens if someone gives false information (knowingly or recklessly) re a financial circumstances order?

A

Liable on summary conviction to a fine not exceeding level 4.

48
Q

What should maximum fines be reserved for?

A

The most serious instances of the offence. Significant mitigation, such as a guilty plea, should normally preclude the imposition of the maximum fine.

49
Q

Must pre-sentence reports always be obtained before passing a community sentence?

A

No; they normally are obtained but the court need not obtain them if it considers it unnecessary to do so.

50
Q

What are the range of work hours that can be ordered under an unpaid work requirement?

A

Between 40 and 300 hours.

51
Q

How long does an offender have to complete an unpaid work requirement, normally?

A

12 months. Going over this can constitute breach, but it can be extended.

52
Q

What is a rehabilitation activity requirement?

A

An order that the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both.

53
Q

Does a court need to prescribe the activities to be undertaken during a rehabilitation activity requirement?

A

No, just the number of days.

54
Q

What is a programme requirement?

A

A requirement that the offender must participate in an accredited programme at a specified place on a certain number of days.

The topics often cover those related to the offence in question (eg. sex offending, anger management)

55
Q

What is a prohibited activity requirement?

A

An order that the offender refrains from taking part in particular activities over a specified period of time (eg attending football matches)

56
Q

What are the minimum and maximum lengths of a curfew requirement (per day)?

A

Between 2 and 16 hours a day.

57
Q

Does a court have to impose an electronic monitoring requirement with curfew?

A

Normally yes, but the court can consider it inappropriate to do so.

58
Q

What is the maximum length of an exclusion requirement?

A

2 years.

59
Q

Does a court have to impose an electronic monitoring requirement with exclusion requirements?

A

Normally yes, but the court can consider it inappropriate to do so.

60
Q

What must a court be satisfied of to order a Mental Health Treatment Requirement?

A

It must be satisfied that the mental condition of the offender:

(a) is such as requires may be susceptible to treatment, but
(b) is not such as to warrant the making of a hospital order or a guardianship order

It must also be satisfied that:

(c) such arrangements can be made for the specified treatment;
(d) the offender has expressed willingness to comply.

61
Q

TRUE or FALSE. An offender must express willingness to comply with a drug rehabilitation requirement.

A

True.

62
Q

Are attendance centre requirements, under section 214, available for all offenders?

A

No, only offenders under 25 years old.

63
Q

What are the minimum and maximum hours that an offender can be required to attend attendance centre requirements?

A

Between 12 and 36 hours overall.

64
Q

TRUE or FALSE. The court MAY apply electronic monitoring requirements for all community orders.

A

FALSE. They may for all EXCEPT curfew an exclusions, where they MUST unless the court considers it inappropriate. Furthermore, it cannot be used for monitoring compliance with an alcohol abstinence and monitoring requirement, unless it is alongside a different requirement in the order.

65
Q

Does conviction of a further offence constitute breach of a community order?

A

No.

66
Q

What should a responible officer do if they think the offender was unreasonably failed to comply with a community order requirement?

A

They must give a warning, and say that if it happens again in the next 12 months he will go before the court. This is a discretion that can be exercised just once.

67
Q

TRUE or FALSE. All breaches of community orders are dealt with in the Crown Court.

A

FALSE. A direction can be made in the original order that any breach is to be dealt with in the Mags.

68
Q

If it is proved that an offender unreasonably failed to comply with any community order requirements, the court must deal with him in one of the following ways:

A

Amend the terms to impose more onerous tasks;

If the order was previously made in the Mags, deal with the original offence in any way in which the Court could deal with him;

Where the order was made by the Mags, the offence was not imprisonable, the offender is over 18 and wilfully and persistently failed to comply, a sentence can be imposed for no more than 6 months.

69
Q

TRUE or FALSE. A court has power to take ‘no action’ on a community order breach.

A

FALSE. They have to take action.

70
Q

When can a community order be revoked?

A

Where it is in the interests of justice to revoke the order or to deal with the offender in some other way. (eg making good progress)

71
Q

What can a court do where an offender subject to a community order has been convicted of a further offence? (conviction must occur while the order is in force)

A

It may revoke the order and deal with the offender for the original offence, taking into account the extent of compliance.

If the order was made by CC, the Mags may send him to appear before CC.

72
Q

On what bases can a community order be amended?

A

Change in residence;

Cancellation/replacement of certain requirements

change treatemnt requirement based on medical report

Drug rehab views without hearing

Changing end date

73
Q

Must courts follow the relevant sentencing guidelines?

A

Yes, unless satisfied that it would be contrary to the interests of justice to do so. Section 125(1) Coroners and Justice Act 2009.

74
Q

Must reasons be given for the final sentence determined?

A

Yes, under SG2-11 BCPand Section 174 CJA 2003.

75
Q

What is the maximum level of reduction in sentence for a guilty plea?

A

One third.

76
Q

What is the maximum amount that a sentence can be reduced if the plea is on the day of the trial?

A

One tenth.

77
Q

Should the 1/3 reduction be applied when the defendant pleads guilty at the PTPH?

A

Normally not, unless D indicated his guilty in the magistrates’ court.

78
Q

What exceptions are there to the general scheme of reductions for guilty plea? (4)

A

(1) Where circumstances were such that D’s ability to understand what was alleged were limited, making it unreasonable to expect them to indicate sooner than was done.
(2) Where D’s version of events is rejected in a Newton hearing, the reduction that would have been available when plea was indicated should be halved.
(3) If convicted of a lesser offence from that originally charged, and he earlier indicated guilty plea for that lesser offence, the level of reduction should reflect that point.
(4) For offences with minimum custodial sentences, the final sentence cannot be less than 80% of the required minimum, unless that would be unjust in all the circumstances.

79
Q

What must a court consider when previous convictions are an aggravating factor?

A

The nature of the offence

Its relevance to the current offence

The time that has elapsed since the conviction.

In the case of a persistent offender, with whom the range of sentencing methods have been tried and failed, and where there is no current prospect of reform or rehabilittion, punishment and deterrence come to the fore.

80
Q

TRUE or FALSE. Lies told during interview or trial are an aggravating factor for sentence.

A

FALSE.

81
Q

The following factors indicate that it may be appropriate to suspend a custodial sentence:

A

A realistic prospect of rehabilitation;

Strong personal mitigation

Immediate custody will result in significant harmful impact upon others.

82
Q

Is supporting evidence from an external source necessary to justify claims that a particular crime is prevalent in the area?

A

Yes. The court must then be satisfied that there is a compelling need to treat the offence more seriously than elsewhere.

83
Q

The principle of totality comprises two elements:

A

All courts should pass a total sentence which reflects all the offending behaviour before it, and is just and proportionate.

it is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences.

84
Q

Can a victim suggest or discuss the level of sentence to be imposed in a victim personal statement?

A

No.

85
Q

Must a court obtain and consider a medical report in a case where a defendant appears to be mentally disordered?

A

Yes, unless the court is of the opinion that it is unnecessary to do so.

86
Q

The correct approach to judicial indication is set out in which case?

A

Goodyear.

87
Q

TRUE or FALSE. A court should give an indication of sentence, regardles of whether one has been sought by the accused.

A

FALSE.

88
Q

Where the sentence will vary according to plea, a court should onyl give an indication as to the sentence following which kind of plea?

A

A guilty plea. This is because an indication as to both my put undue pressure on the accused to plea.

89
Q

Can a court refuse to give an indication where sought?

A

Yes, with or without giving reasons.

90
Q

Where an indication has been refused, can the defence make further requests?

A

Yes.

91
Q

Are indications binding?

A

They are binding on the judge who gave it and any judges who become responsible for the case.

92
Q

What happens if, after a reasonable opportunity to consider his position in the light of an indication, the accused does not plead guilty?

A

The indication ceases to have effect.

93
Q

The process of seeking a sentence indication should normally be started by the…

A

…defence.

94
Q

Should a defendant’s advocate seek an indication without the client’s written, signed authority?

A

No.

95
Q

If there is no final agreement as to the plea or indictment and D wants an indication, prosecuting counsel should remind the court that…

A

Indications should not normally be given unless the basis of plea is agreed, or the judge concludes that he can deal with the case without a Newton hearing.

96
Q

Can prosecution counsel say or do anything to constitute agreement with a particular indicated sentence?

A

No.

97
Q

Should indication hearings take place in private?

A

No. Open court, with a full recording and both sides represented.

98
Q

What is the first stage of the sentencing process, following the defendant pleading guilty?

A

Summarise the facts of the offence.

99
Q

TRUE or FALSE. The prosecution is to adopt a neutral stance at the sentencing stage.

A

TRUE. Just ensure the judge does not commit appealable error. Identify relevant factors to mitigate/aggravate. Identify permissible sentences.

100
Q

What is a Newton hearing?

A

A hearing on a dispute of material fact between P and D relating to the factual basis of the offence.

101
Q

What are the three ways that a judge can approach sentencing in Newton hearing disputes?

A
  1. Obtain the answer from a jury (e.g. should it be s18 or s20 OAPA)
  2. Judge hears the issues and evidence himself and comes to his own conclusion.
  3. Judge hears no evidence but listens to submissions and reaches his own conclusion. But if there is substantial conflict, he must come down in favour of the defendant.
102
Q

Should the defence notify the prosecution of the wish for a Newton hearing?

A

Yes.

103
Q

Can the court decline to hear evidence at a Newton hearing where it believes the defendant’s version of events is absurd or clearly unreliable?

A

Yes.

104
Q

Are Newton hearings unnecessary for insigificant factual disputes?

A

No.

105
Q

Who bears the Burden of Proof for a Newton hearing, and what is the standard of proof?

A

Prosecution - BRD that their version is the correct one.

106
Q

Can the defence be forced to call evidence or participate in a Newton hearing?

A

No. They can simply observe while the prosecution seek to establish their version to the judge’s satisfaction.

107
Q

Do the jury have to supplement a guilty verdict with the factual basis on which they reached that decision?

A

No, but manslaughter is the exception.

108
Q

Why would a defendant volunteer for other offences, not before the court, to be taken into account when being sentenced?

A

This may allow the police to clear up numerous offences, and the offender can wipe the slate clean at a minimal cost in terms of increased sentence.

109
Q

Who compiles a pre-sentence report?

A

Probation officers

110
Q

Why might a sentence be deferred?

A

Conduct after conviction

Change in circumstances

111
Q

TRUE or FALSE. The six-month ceiling on the Mags’ powers of imprisonment in s78(1) PCC(S)A can be expressly excluded.

A

True, by statute.

112
Q

When a court orders under POA 1985 s18 for the payment of prosecution costs, what test does it apply for determinign the amount?

A

What is “just and reasonable”.

113
Q

Northallerton Magistrates’ Court, ex parte Dove [1999] gave the following guidance for the imposition of paying prosecution costs

A

Never exceed the sum the offender is able to pay, or what it is reasonable to pay

Never exceed what prosecution has actually incurred

Purpose is to compensate prosecutor, not punish offender.

Not grossly disproportionate to any fine imposed.

114
Q

Can compensation orders be made alongside imprisonment?

A

Yes, but only if they are able to pay and can get employment after. It is often counterproductive.

115
Q

What is the purpose of a confiscation order?

A

To recover from a defendant a sum of money not exceeding the value of his proceeds of crime.

Criminal Litigation (18 decks)

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