Sentencing - Determining the Sentence

Question 1

What must the court consider when deciding on sentence seriousness?

Answer 1

Culpability and Harm

Question 2

What are the statutory sentencing thresholds?

Answer 2

• Custodial sentence - Only if the offence is so serious that neither fine nor community sentence is justified.
• Community order - only if the offence is serious enough to warrant it

Question 3

Can a fact inherent to the offence raise culpability?

Answer 3

No - using an element that is a requirement of the offence (eg. intent in s.18 gbh) would be double counting.

Question 4

Must courts follow sentencing guidelines?

Answer 4

Yes - unless doing so would be contrary to the interests of justice.

Question 5

What sources are referred to if guidelines are not available?

Answer 5

The general guideline, and possibly Court of Appeal judgements

Question 6

What is the typical sequence of sentencing hearing?

Answer 6

1. Prosecution outlines facts, prior convictions, and makes applications
2. Defence mitigates and may request reports
3. Judge passes sentence

Question 7

When must the pre-sentence report be obtained?

Answer 7

Before passing a custodial or community sentence, unless unnecessary

Question 8

What dies a pre-sentence report help with?

Answer 8

Determining the most appropriate sentence, especially the sustainability for community orders.

Question 9

What other reports might be relevant at sentencing?

Answer 9

• Medical or psychiatric reports
• Reports under the Mental Health Act

Question 10

What is the Court’s overall approach to sentencing?

Answer 10

Categories
1. Determine offence category (culpability + harm)
2. Adjust for aggravating and mitigating factors
3. Apply credit for guilty plea
4. Consider totality (if multiple offences)
5 Apply for ancillary orders

Question 11

What is meant by ‘category’ in sentencing guidelines

Answer 11

A classification based on culpability and harm that determines starting point and range for sentence.

Question 12

Common statutory aggravating factors?

Answer 12

• Previous convictions
• offending on bail
• racial, religious, disability, or sexual orientation aggravation
• offence against public service workers
• hostility to a minority group
• use of a weapon
• vulnerable victim
• sustained/repeated assault

Question 13

Common mitigating factors?

Answer 13

• Provocation
• Mental illness
• youth or age
• minor role in offence
• no previous convictions
• remorse, vulnerability or positive character

Question 14

Can absence of remorse be treated as aggravating?

Answer 14

No - presence of remorse may mitigate, but absence does not automatically aggravate.

Question 15

What happens if the Prosec proves its version at a newton hearing?

Answer 15

The D is sentenced on the prosecution’s facts, and credit for plea is reduced.

Question 16

When is the maximum guilty plea credit available?

Answer 16

If the plea is enters at the 1st stage of proceedings: maximum 1/3 reduction

Question 17

What if guilty plea is entered later?

Answer 17

• After first stage - max 1/4 reduction
• Day of trial - sliding scale, max 1/10 reduction

Question 18

Passing Sentence requirements - what must court explain when passing sentence?

Answer 18

• the sentence passed in plain terms
• which guidelines were followed or departed from
• why custody was justified (if applicable)
• guilty plea credit given and why
• aggravating/mitigating factors considered