Sentencing I Flashcards
What is meant by the ‘Sentencing Code’?
Consolidation of existing sentencing procedure law
Contained in the Sentencing Act 2020 - brings together wide range of disposals under one roof
What are the 2 types of sentence?
Custodial and non-custodial
What are the 5 purposes of sentencing which the court must have regard to in cases of those aged 18 and over?
- Punishment of offenders
- Reduction of crime (by deterrence)
- Reform and rehabilitation of offenders
- Protection of the public
- Making of reparation to offenders to persons affected by offences
Given equal weight usually
Are the mechanics of how a court sentences an offender the same irrespective of the court?
Essentially yes - only key differences are availability of certain sentences and limits to power of magistrates’ and youth courts
What are the 2 different meanings of ‘maximum sentence’?
- Maximum sentence which can be imposed for the specific offence
- Maximum sentence which can be imposed by a particular court for that offence
Statute thus allows for Ds, where necessary and appropriate, to be committed for sentence to Crown Court which has greater powers
Why would a magistrates’ commit an adult for sentence in the Crown court even though the offence is triable either way?
Greater sentencing powers are required
Once a matter has been sent to and is tried at the Crown, can it be sent back to magistrates’ for sentencing?
No!
When must a court hold a Newton hearing? What is decided in one?
- Must be held where D pleads guilty on a basis that will make a material difference to the sentence
- The factual basis on which the court passes sentence is decided
Why would a D plead guilty on a basis that would make a material difference to the sentence? What does a D enter in this case?
Where it takes issue with facts asserted by the prosecution - would enter a guilty plea on a written basis
E.g.
- D charged with single count of ABH - prosecution allege he punched complainant twice in face, complainant fell to ground, and D kicked them twice in ribs
- D said he did commit assault and cause ABH but takes issues with the facts alleged by prosecution
Where a D enters a guilty plea on a written basis (taking issue with prosecution facts), what happens when the prosecution indicate that the basis is acceptable?
Acceptable = happy it is not untrue
The judge considers whether they accept the basis (once prosecution decides it is acceptable)…
- Accept = sentence on defence basis
- Do not accept = hold a Newton hearing
Where a D enters a guilty plea on a written basis (taking issue with prosecution facts), what happens when the prosecution indicate that the basis is not acceptable?
The judge considers whether they think the basis is absurd…
- Is absurd = sentence on prosecution basis
- Is not absurd = consider if it will make a material difference to the sentence
Where the judge does not think the basis is absurd (after prosecution indicates it is not acceptable) and they are deciding if it will make a material difference to the sentence, what are the different outcomes?
- Will make material difference = Newton hearing
- Will not make a material difference = sentence on defence basis
Summary of defence drafting written basis of plea
What is the difference between the magistrates’ and Crown in holding a Newton hearing?
- Crown = takes place without jury and Crown Court Judge is arbiter of both fact and law
- Magistrates’ = presided over by magistrates/District Judge
Why is a Newton hearing an exception to the rule that there is no ‘trial’ phase to the process where D enters guilty plea?
Because…
- Prosecution makes opening speech and calls evidence in usual way + witnesses cross-examined by defence
- Same for D
- Both parties address judge by way of closing speech
What will the court decide at the end of a Newton hearing? What are the consequences of this?
Whether prosecution has proved its version of the facts beyond reasonable doubt
- Has = D sentenced on prosecution version of the facts
- Has not = D sentenced on defence version of facts as set out in basis of plea
What is the further consequence for D if they are sentenced on the prosecution version of the facts (where prosecution has proved its version beyond reasonable doubt)?
Reduction that would have been available at any stage of proceedings if plea indicated should normally be halved (and potentially further if witnesses are called)
Rationale must be that D has used up court time that otherwise would have been saved due to plea and/or witnesses who would have been spared instead had to come and give evidence at Newton hearing
Where a D is being sentenced for more than one offence, what are the two types of sentences that could be used and how are they decided between?
- Offences arise out of same set of facts = concurrent sentences likely
- Offences arise out of different facts = consecutive sentences likely
By how long can court defer a sentence, what should D prove in this time, and what happens at the end of it?
- 6 months
- D proves they have changed/offence was absolute one-off
- D presents to court at end of deferral period in better light and receives lighter sentence as a result
When can Crown defer the the sentence for a further 6 month period?
Where magistrates’ defers sentence for a period and then they commit to Crown for sentence
In the magistrates’, for an indication of sentence, what must the offence be, where must the allocation phase be at, and what will D be asking?
- Offence is either-way
- Court has accepted jurisdiction during allocation process
- D can ask for indication of what sentence would be if they were to remain in magistrates’ and plead guilty
Remember plea before venue/allocation
In determining seriousness, what are the 3 categories that the appropriate range of sentence is based on? What is the significance of determining the category?
- Category 1 (greater culpability / greater harm)
- Category 2 (greater culpability / lesser harm or lesser culpability / greater harm)
- Category 3 (lesser culpability and lesser harm)
The guideline provides a sentence starting point and range for each category
Once seriousness is determined, how will the starting point be adjusted?
Adjusted upward or downward based on aggravating and mitigating factors
What are common non-statutory aggravating factors?
- Commission of offence under influence of drugs/alcohol
- Planning
- Operating in gang
- Professional offending
- Commission of offence for financial gain
- Attempt to conceal/dispose of evidence
- Multiple/vulnerable victims
