Sentencing II Flashcards
What are the 5 non-custodial sentences?
- Bind over
- Absolute discharge
- Conditional discharge
- Fines
- Community order
Which courts can impose a bind over?
Either mags or Crown
What is a bind over usually imposed instead of? How does it work?
- Imposed instead of D entering guilty plea/being tried for offence
- Person bound over by court to ‘keep the peace’ - if peace breached, they will pay a sum of money they were bound over for
Can bind over be imposed following acquittal?
Yes
Is an absolute discharge any punishment at all?
Effectively no - but can stay on record
What will an asbolute discharge usually be imposed to reflect?
3
Triviality of offence / circumstances in which offender came to be prosecuted / special factors relating to offender
Lowest form of sentence available to either court
How is a conditional discharge different to an absolute discharge?
If D commits another offence during specified period they can be re-sentenced for original offenced and sentneced for new offence
How long can a specified period be in a conditional discharge?
Specified period = period in which if they commit another offence, they will be re-sentenced for original and sentenced for new offence
No more than 3 years
What are the magistrates’ and Crown’s limits in issuing a fine?
Neither have a limit
When is a fine due after conviction? What happens if a D fails to pay it?
- Due immediately (only instalments with agreement of court)
- Failure to pay = brought back before magistrates’ (regardless of which court issues fine) and can be sentenced to imprisonment in default
Can a fine be imposed for any offence? Can it be imposed alongside another sentence?
- Can be imposed for any offence unless prohibited by statute (e.g. offence imposing mandatory minimum sentence)
- Can be imposed alongside any other sentence except hospital order/discharge (and generally unaccepted to combine with imprisonment)
What types of crimes will fines typically be given for? What can court enquire before setting one?
- Typically lower level crimes e.g. minor driving offences, theft
- Court can enquire of D’s means before imposing fine
Is most common type - 80% of offenders receive fine
What is a community order?
D must comply with one or more requirements to punish and/or rehabilitate D in the community
What is the statutory threshold for imposing a community order?
Court should not make order unless it is of the opinion that offence(s) is serious enough to warrant making such an order
To impose a community order, what must the D and offence be? What is the maximum length of a community order?
- Offender must be over 18
- Offence must be punishable with imprisonment
- Maximum length = 3 years
When imposing a community order, what must the court have regard to?
Period spent on remand/qualifying electrically monitored curfew when determining restrictions on liberty which sentence imposes
Can a court only impose one requirement for a community order?
Can impose multiple so long as they are compatible with one another
When can a punitive element not be imposed as a requirement in a community order? What must requirements avoid conflict with?
- Where a fine is imposed or it would be unjust in exceptional circustances
- Requirements must avoid conflict with religious belief and work/education
What is a period of operation as part of a community order?
The period that the court must specify for a community order - is an overall limit within which the requirements must be completed (unless specific time period designated for particular requirement)
What can happen if D completes community order within period of operation?
D/probation service can apply for order to be discharged
Examples of requirements
- Unpaid work requirement
- Rehabilitation activity requirement (appointments/activities)
- Programme requirement (anger management)
- Prohibited activity requirement (not attend football match)
- Residence requirement (live at a particular address)
- Alcohol treatment requirement
What will be set along with a requirement?
Conditions of that requirement, e.g. …
- Unpaid work requirement = 40-300 hours within 12 months
- Curefew requirement = 2-16 hours in any 24 hour period
- Programme requirement = number of days D must attend
If a D breaches the requirement of a community order without reasonable excuse, what will happen?
- First time = warned failure is unacceptable
- Second time = breach proceedings instituted against offender where they can deny or admit breach
What happens if offender denies the breach in breach proceedings?
Court holds trial as to whether there was a failure without reasonable excuse
If offender admits to breach or court finds there was a breach in breach proceedings, in what ways could a court punish it?
- Make order more onerous
- Fine offender up to £2,500
- Revoke community order and re-sentence offender for offence for which order was made (considering extent to which offender complied with order)
If, as part of breach proceedings, the court revokes the community order and re-sentences offender for original offence, what can court do that it could not have done for original offence?
Impose custodial sentence not exceeding 6 months
I.e. can impose custodial sentence not exceeding 6 months even for offence which was not offence punishable with imprisonment
Can the court extend a community order beyond the usual three year limit?
If necessary, can extend once by up to 6 months
What are the 6 types of custodial sentences?
- Determinate custodial sentences
- Suspended determinate custodial sentences
- Minimum sentences for certain offenders
- Extended determinate sentences (EDS)
- Mandatory life sentences for murder
- Other statutory life sentences
What does it mean that most imprisonable offences carry discretionary custodial sentences?
Means a court may send offender to prison provided the custodial threshold has been reached
What is the statutory threshold for a custodial sentence?
The custodial threshold
Must not be passed unless court satisfied that offence(s) is so serious that neither a fine nor community order can be justified
Where a custodial sentence is imposed, for what period should this be for?
The shortest possible period (to reflect purpose of sentence: punishment of offenders, crime reduction etc.)
What is a determinate custodial sentence?
A prison sentence for a defined period of time
Most common custodial sentence passed
What is the difference between a concurrent and consecutive sentence?
E.g. two 12 month sentences
For two 12 month sentences
- Concurrent = 12 months total sentence
- Consecutive = 24 months total sentence
What is the maximum custodial sentence that can be imposed by magistrates’ and Crown?
- Mags = 6 months (but 12 months in certain circumstances…)
- Crown = unlimited (subject to statutory maximum)
If offence has statutory maximum below court’s overall maximum power; court must follow the statute
When will the maximum custodial sentence for magistrates’ be 12 months?
Where a person is charged with 2 or more either-way offences
What will automatically be counted towards a custodial sentence?
Any time spent remanded in custody
What else will count towards a sentence but will not be automatic?
Where on bail with curfew condition which was electronically monitored and number of hours under curfew was at least 9 (court must state that time under curfew counts)
What may come after the custodial sentence?
Post sentence supervision
How does a suspended sentence of imprisonment work? What may the offender be subject to at the same time?
- D does not go into immediate custody and can avoid prison entirely if they fulfil certain criteria
- D may be subject to community order requirements at same time
What length of determinate custodial sentences may a magistrates’ and Crown suspend?
- Magistrates = between 14 days and 6 months
- Crown = between 14 days and 2 years
I.e. Crown can suspend sentences that are between 14 days and 2 years
What are the 3 elements of a suspended sentence?
- Custodial term
- Operational period
- Supervision period
What is the difference between the custodial term, the operational period, and the supervision period?
- Custodial term = how long a custodial term would have been but for it being suspended
- Operational period = how long custodial term suspended for
- Supervision period = how long D must be supervised by Probation Service for
E.g. Mr Smith’s 1 year sentence of imprisonment is being suspended for 2 years. Supervision period is 18 months and he has to complete 200 hours of unpaid work.
- Custodial term = 1 year
- Operational period = 2 years
- Supervision period = 18 months
Mr Smith does not commit another offence for 2 years, complies with supervision requirement and does 200 hours of unpaid work = will not serve a single day of 1 year sentence of imprisonment
How long can the operational period of a suspended sentence be?
Between 6 months and 2 years
Is a supervision period always used?
No, but must be between 6 months and 2 years if it is (and equal to or shorter than operational period)
In what 3 ways can an offender breach a suspended sentence?
- Committing another offence during operational period
- Failing to comply with probation service where there is a supervision period
- Failing to comply with community order requirements if imposed
What happens where an offender breaches their suspended sentence?
Same as breach of CO…
- First time = warned failure is unacceptable
- Second time = breach proceedings instituted against offender
Where breach of a suspended sentence is proved/admitted, what must the court do?
Activate the suspended sentence in part/whole having regard to extent to which D had complied with order prior to breach (unless unjust to do so)
Hence why sentence is suspended - is still ‘there’ but not activated unless breach in period of suspension (operational period)
What serious offences have minimum sentences prescribed by statute?
Unless exceptional circumstances
- Third Class A drug trafficking offence (7 yrs)
- Third domestic burglary (3 years)
- Certain firearms offences (5 years)
- Second offence of possessing weapon (6 months)
- Threatening with a weapon (6 months)
For a third class A drugs offense, in what ordeer must the offenses have occurred to impose the 7 years’ imprisonment? What if D enters guilty plea at first opportunity?
- Commission of offence 1 > conviction of offence 1
- Commission of offence 2 > conviction of offence 2
- Commission of offence 3 > conviction of offence 3
Convicted of offence 3 = must pass minimum custodial sentence of 7 years unless unjust to do so
Enters guilty plea at first opportunity = still at least 80% of minimum 7 year term
As burglary is ordinarily an either-way offence, in what situation must D be committed to Crown?
Where D faces a 3rd potential conviction and must be admitted to Crown for prescribed minimum 3 year term›
When would an extended determinate sentence be imposed?
In cases where court finds that offender is dangerous
How does an extended determinate sentence work?
The licence period is extended as is required to protect public from risk of harm
What is a licence period?
The remainder of sentence after release from custody
What must the extension period be at least, what can it not exceed, and what can the overall term imposed not exceed?
- At least 1 year
- Not exceed 5 years for specified violent offence or 8 years in specifed sexual/terrorism offence
- Overall term cannot exceed maximum term permitted for offence
A prisoner serving EDS is eligible to apply to parole board for release at the ⅔ point of custodial term and must be released at end of custodial period
Where D is convicted of murder, what must the court pass? Is this available for any other offences?
Must pass a mandatory life sentence - not available for any other offences
What does the court fix on passing a mandatory life sentence and what happens on its expiry?
Court fixes a minimum term - once it expires D can apply for release from Parole Board who has ultimate discretion as to when D is released
If D is released from a mandatory life sentence, what happens?
They remain on licence for life
What are the remaining starting points for minimum terms and how does the judge decide which applies?
- 30, 25, 15 years
- Aggravating and mitigating circumstances decide starting point
What is a life sentence with a ‘whole life order’ and for what crimes is it imposed?
Means an offender will never be released from prison - imposed for most serious crimes
What kind of offenders can be sentenced to a statutory life sentence (imprisonment for life)?
Different to a mandatory life sentence
Offenders considered dangerous or who are convicted of a second very serious offence
Also offences like rape and robbery for which the maximum sentence is life imprisonment
What sets statutory life sentences apart from mandatory life sentences?
There is still an element of discretion for statutory life sentences
Which sentences can only the Crown impose?
- Mandatory minimum sentence for third class domestic burglary/Class A drugs offence
- Mandatory life sentence for murder
- Life sentence murder
- Extended determinate sentence
When a magistrates’ imposes a determinate custodial sentence, what maximum is it subject to?
6 months or 12 months where person charged with 2 or more either-way offences
When a magistrates’ imposes a suspended sentence of imprisonment, what maximum is it subject to?
6 months or 12 months where person charged with 2 or more either-way offences
Same as determinate custodial
