Sentencing - Determining Sentence Flashcards
What is seriousness determined by?
1) Culpability
2) Harm
What is the threshold for imposing a custodial sentence?
The offence is so serious that neither a fine nor a community order is justified
What is the threshold for imposing a community order?
The offence is serious enough to warrant it
What is culpability dependent on?
- Role
- Intention
- Premeditation
- Planning
What is included in harm?
- Physical injury
- Financial loss
- Emotional distress
What are sentencing guidelines?
Guidelines for a court that must be used unless contrary to justice
Who do guidelines exist for?
- Magistrate’s court
- Crown court
- Sentencing children and young people
What if there is no offence-specific guideline?
Courts use General guideline (overreaching principles) – Crown Court Judges may refer to Court of Appeal decisions
What is the sentencing hearing process?
1) Prosecution opens case
2) Defence mitigation
3) Judge passes the sentence
What does prosecution open case with for sentencing?
- Present facts and previous convictions
- Requests ancillary orders (e.g. costs, compensation)
- Refers to relevant sentencing guidelines
- Presents victim impact statement
What does defence do in mitigation?
- Argues lenience
- Ensures lawful sentencing
- Request pre-sentence reports if needed
When are pre-sentence reports required?
Before passing custodial or community sentences, unless unnecessary
What is the purpose of a pre-sentence report?
To assess the best way to deal with the offender
Whose input is needed before imposing a community order?
Probation input
What is the sentencing code approach?
1) Determine seriousness
2) Consider aggravating factors
3) Consider mitigating factors
4) Consider assistance given to prosecution
5) Apply guilty plea reduction
6) Ensure totality of sentence is just and proportionate
7) Consider ancillary orders
What are the determining sentence steps?
1) Determine applicable sentencing guideline category based on culpability and harm
2) Adjust starting point for aggravating / mitigating factors
3) Reduce sentence for guilty plea
4) Ensure total sentence is just and proportionate
What are the categories of offence?
1) Category 1: High culpability and High harm
2) Category 2: Medium culpability and/or harm
3) Category 3: Low culpability and low harm
What are common statutory aggravating factors?
- Previous convictions
- Committed on bail
- Racial / religious aggravation
- Sexual orientation / disability motives
- Committed under influence of alcohol or drugs
- Gang-related
- Planning and sophistication
- Use of a weapon
- Multiple victims
- Serious psychological or physical effect on victim
- Targeting vulnerable victims
- Abuse of power or position of trust
What are common mitigating factors?
- Greater provocation than usual
- Mental illness / disability
- Age / youth affecting responsibility
- Minor role in offence
- Good character and no previous convictions
- Personal mitigation
What are examples of aggravating factors?
- Use of knife
- Lack of remorse
- Leaving victim bleeding at the scene
- Ongoing psychological effect on victim
What are examples of mitigating factors?
- No previous convictions for serious violence
- No prior custodial sentences
- Single-blow incident
- D is employed and has dependents
What is guilty plea reduction at first stage of proceedings?
Max 1/3 reduction
What is guilty plea reduction after first stage but before trial?
Max ¼ reduction
What is guilty plea on day of trial?
Max 1/10 reduction
What is the court’s duty in passing a sentence?
- Non-technical language
- Identify sentencing guidelines used
- Justify custodial sentence
- Explain credit for guilty plea
- Highlight aggravating and mitigating factors considered
