Sentencing - Determining the Sentence Flashcards
What must the court consider when deciding on sentence seriousness?
Culpability and Harm
What are the statutory sentencing thresholds?
- 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
Can a fact inherent to the offence raise culpability?
No - using an element that is a requirement of the offence (eg. intent in s.18 gbh) would be double counting.
Must courts follow sentencing guidelines?
Yes - unless doing so would be contrary to the interests of justice.
What sources are referred to if guidelines are not available?
The general guideline, and possibly Court of Appeal judgements
What is the typical sequence of sentencing hearing?
- Prosecution outlines facts, prior convictions, and makes applications
- Defence mitigates and may request reports
- Judge passes sentence
When must the pre-sentence report be obtained?
Before passing a custodial or community sentence, unless unnecessary
What dies a pre-sentence report help with?
Determining the most appropriate sentence, especially the sustainability for community orders.
What other reports might be relevant at sentencing?
- Medical or psychiatric reports
- Reports under the Mental Health Act
What is the Court’s overall approach to sentencing?
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
What is meant by ‘category’ in sentencing guidelines
A classification based on culpability and harm that determines starting point and range for sentence.
Common statutory aggravating factors?
- 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
Common mitigating factors?
- Provocation
- Mental illness
- youth or age
- minor role in offence
- no previous convictions
- remorse, vulnerability or positive character
Can absence of remorse be treated as aggravating?
No - presence of remorse may mitigate, but absence does not automatically aggravate.
What happens if the Prosec proves its version at a newton hearing?
The D is sentenced on the prosecution’s facts, and credit for plea is reduced.
When is the maximum guilty plea credit available?
If the plea is enters at the 1st stage of proceedings: maximum 1/3 reduction
What if guilty plea is entered later?
- After first stage - max 1/4 reduction
- Day of trial - sliding scale, max 1/10 reduction
Passing Sentence requirements - what must court explain when passing sentence?
- 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
