Sentencing and Appeals Flashcards
Newton Hearings
R. v Newton
Where defendant accepts their guilt on the charge but disputes the facts.
Process of Newton Hearing will take place.
It’s essentially a mini-trial on the facts before judge, not jury - only prosecution witnesses will be called, examined and cross-examined.
Judge will make decision as to whose facts he or she thinks are correct and proceed to sentence.
The Custody Threshold
s. 152 CJA 2003 restricts powers of courts to grant custodial sentence.
s. 152 (2) - MUST NOT PASS A CUSTODIAL SENTENCE UNLESS IT IS OP THE OPINION THAT THE OFFENCE, OR COMBINATION OF OFFENCES, WAS SO SERIOUS THAT NEITHER A FINE ALONE NOR A COMMUNITY SENTENCE CAN BE JUSTIFIED.
Does not mean a custodial sentence will automatically be imposed - just have to pass this test before they can even consider one.
(but can still be imposed under s.152 (3) if offender not willing to comply with community penalty requirememnt, or fails to comply with drug testing order).
Length of Impriosnment
s.153 (2) CJA - a custodial sentence must be for the shortest term that is commeunsrate with the seriousness of the offence.
For convicion on indictment, Crown Court can impose ANY sentence up to the statutory maximum (which will be set out in the actual offence)
Magistrates Court - depends on type of offence:
- Summary only offences: maximum sentencing power of 6 months (in total - doesn’t matter how many offences are being dealt with in one go, still 6 MONTHS) -s. 78 (1) PCC(S)A 2000
- If an Either-way offence, then maximum penalty on one single either-way offence or when combined with a summary offence, is also 6 MONTHS.
- Will only go up to 12 months if you have 2 OR MORE EITHER-WAY OFFENCES BEING DEALT WITH AT THE SAME TIME (with or without additional summary offences) - S.133 MCA 1980
Aggravating Factors
STATUTORY AGGRAVATING FACTORS
- Offending whilst already on Bail - s.143 (3) CJA 2003
- Previous offending - s.143 CJA - depends on what the previous offending is and how relevant and recent it is to the current offence.
- Racial or religious aggravation - s.145 CJA 2005
- Hostility to a person’s disability or sexual orientation - s.146 CJA 2003.
NON-STATUTORY FACTORS WHICH ARISE FROM THE OFFENCE ITSELF
- pre-meditation
- moderate to serious injury caused
- more than one blow struck
- kicking, especially to the head
- a weapon being used
- a group attack
- a vulnerable victim
- assaults on people vulnerable by virtue of public service (e.g. bus drivers)
- breach of trust (for theft offences)
- for burglaries, at night time, domestic dwellings, where the residents at home at the time etc.
Mitigating Factors
FACTORS RELATING TO THE OFFENCE ITSELF
- Essentially, the absence of aggravating factors
- E.G. spontanous assault, no weapon, minor injury etc.
- For theft-related matters, very small sums of money involved, return of the property (less so for breach of trust), opportunistic crime.
THE DEFENDANT’S PERSONAL CIRCUMSTANCES
- s.166 CJA 2003
- employment, offer of job, loss of earnings, family commitments, community standing, work, healthm education, drug treatment, REMORSE (particularly from an early stage)
EARLY GUILTY PLEA
- not mitigation as such, but court will take into account
- general rule of thumb is that if you enter an early guily plea, open to discount on the sentence
- credit for not wasting the court’s and witnesses’ time
- but very much up to the discretion of the judge or magistrates
- turns very much on the facts
- the earlier the better - maximum could get around 1/3 off the sentence.
TIME SPENT ON REMAND
- again, not a mitigating factor, but court must deduct from a custodial sentence any days already served on remand in prison awaiting trial/sentence
Sentencing Guidelines and the Sentencing Council
SEE SPECIFIC PAGES IN BOOK
Exam could cover only these offences:
- Theft in breach of trust
- Theft from a shop
- Domestic burglary
- GBH/unlawful wounding
- ABH
- Supplying a controlled drug / PWITS
Appeals
Process differs depending on court
APPEALS FROM MAGS COURT TO CROWN COURT
- can appeal against conviction and/or sentence
- option only open to Defendant
- appeal can be made by Prosecution only on a ‘case stated’ basis - where they allege there’s been some error of law or court has acted outside its jurisdiction - but very rare!
- launch notice to appeal within 21 days from whatever they’re appealing - don’t have to specify detailed grounds
- will get listed before a judge and 2 lay magistrates - they effectively hear the case ‘de novo’ - as if it was the first hearing (so new evidence can be called)
- Crown Court can change the conviction, lower the sentence or even raise the sentence
- Crown Court can also impose a costs penalty if appeal not allowed (to discourage frivilous appeals)
APPEALS FROM CROWN COURT
Again can appeal against:
- conviction - because ‘unsafe’ - s.2 (1) CAA; or
- Sentence - too serious
- works by different process - have to put matter before C of A - a single judge will consider whether the appeal has any merits (a sifting process) - must be done within 28 days of convcition/sentence being opposed.
- But even if single judge said no merit in it, CAN STILL appeal to C of A (although discouraged!)
- UKSC - need consent of either court, providing that C of A has certified there is a point of law of general public importance.
