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Criminal Law and Practice > Sentencing II > Flashcards

Sentencing II Flashcards

1
Q

What are the 5 non-custodial sentences?

A
  • Bind over
  • Absolute discharge
  • Conditional discharge
  • Fines
  • Community order
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2
Q

Which courts can impose a bind over?

A

Either mags or Crown

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3
Q

What is a bind over usually imposed instead of? How does it work?

A
  • 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
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4
Q

Can bind over be imposed following acquittal?

A

Yes

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5
Q

Is an absolute discharge any punishment at all?

A

Effectively no - but can stay on record

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6
Q

What will an asbolute discharge usually be imposed to reflect?

3

A

Triviality of offence / circumstances in which offender came to be prosecuted / special factors relating to offender

Lowest form of sentence available to either court

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7
Q

How is a conditional discharge different to an absolute discharge?

A

If D commits another offence during specified period they can be re-sentenced for original offenced and sentneced for new offence

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8
Q

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

A

No more than 3 years

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9
Q

What are the magistrates’ and Crown’s limits in issuing a fine?

A

Neither have a limit

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10
Q

When is a fine due after conviction? What happens if a D fails to pay it?

A
  • 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
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11
Q

Can a fine be imposed for any offence? Can it be imposed alongside another sentence?

A
  • 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)
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12
Q

What types of crimes will fines typically be given for? What can court enquire before setting one?

A
  • 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

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13
Q

What is a community order?

A

D must comply with one or more requirements to punish and/or rehabilitate D in the community

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14
Q

What is the statutory threshold for imposing a community order?

A

Court should not make order unless it is of the opinion that offence(s) is serious enough to warrant making such an order

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15
Q

To impose a community order, what must the D and offence be? What is the maximum length of a community order?

A
  • Offender must be over 18
  • Offence must be punishable with imprisonment
  • Maximum length = 3 years
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16
Q

When imposing a community order, what must the court have regard to?

A

Period spent on remand/qualifying electrically monitored curfew when determining restrictions on liberty which sentence imposes

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17
Q

Can a court only impose one requirement for a community order?

A

Can impose multiple so long as they are compatible with one another

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18
Q

When can a punitive element not be imposed as a requirement in a community order? What must requirements avoid conflict with?

A
  • Where a fine is imposed or it would be unjust in exceptional circustances
  • Requirements must avoid conflict with religious belief and work/education
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19
Q

What is a period of operation as part of a community order?

A

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)

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20
Q

What can happen if D completes community order within period of operation?

A

D/probation service can apply for order to be discharged

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21
Q

Examples of requirements

A
  • 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
Many more
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22
Q

What will be set along with a requirement?

A

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
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23
Q

If a D breaches the requirement of a community order without reasonable excuse, what will happen?

A
  • First time = warned failure is unacceptable
  • Second time = breach proceedings instituted against offender where they can deny or admit breach
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24
Q

What happens if offender denies the breach in breach proceedings?

A

Court holds trial as to whether there was a failure without reasonable excuse

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25
Q

If offender admits to breach or court finds there was a breach in breach proceedings, in what ways could a court punish it?

A
  • 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)
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26
Q

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?

A

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

27
Q

Can the court extend a community order beyond the usual three year limit?

A

If necessary, can extend once by up to 6 months

28
Q

What are the 6 types of custodial sentences?

A
  • 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
29
Q

What does it mean that most imprisonable offences carry discretionary custodial sentences?

A

Means a court may send offender to prison provided the custodial threshold has been reached

30
Q

What is the statutory threshold for a custodial sentence?

The custodial threshold

A

Must not be passed unless court satisfied that offence(s) is so serious that neither a fine nor community order can be justified

31
Q

Where a custodial sentence is imposed, for what period should this be for?

A

The shortest possible period (to reflect purpose of sentence: punishment of offenders, crime reduction etc.)

32
Q

What is a determinate custodial sentence?

A

A prison sentence for a defined period of time

Most common custodial sentence passed

33
Q

What is the difference between a concurrent and consecutive sentence?

E.g. two 12 month sentences

A

For two 12 month sentences

  • Concurrent = 12 months total sentence
  • Consecutive = 24 months total sentence
34
Q

What is the maximum custodial sentence that can be imposed by magistrates’ and Crown?

A
  • 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

35
Q

When will the maximum custodial sentence for magistrates’ be 12 months?

A

Where a person is charged with 2 or more either-way offences

36
Q

What will automatically be counted towards a custodial sentence?

A

Any time spent remanded in custody

37
Q

What else will count towards a sentence but will not be automatic?

A

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)

38
Q

What may come after the custodial sentence?

A

Post sentence supervision

39
Q

How does a suspended sentence of imprisonment work? What may the offender be subject to at the same time?

A
  • 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
40
Q

What length of determinate custodial sentences may a magistrates’ and Crown suspend?

A
  • 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

41
Q

What are the 3 elements of a suspended sentence?

A
  1. Custodial term
  2. Operational period
  3. Supervision period
42
Q

What is the difference between the custodial term, the operational period, and the supervision period?

A
  • 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

43
Q

How long can the operational period of a suspended sentence be?

A

Between 6 months and 2 years

44
Q

Is a supervision period always used?

A

No, but must be between 6 months and 2 years if it is (and equal to or shorter than operational period)

45
Q

In what 3 ways can an offender breach a suspended sentence?

A
  1. Committing another offence during operational period
  2. Failing to comply with probation service where there is a supervision period
  3. Failing to comply with community order requirements if imposed
46
Q

What happens where an offender breaches their suspended sentence?

A

Same as breach of CO…

  • First time = warned failure is unacceptable
  • Second time = breach proceedings instituted against offender
47
Q

Where breach of a suspended sentence is proved/admitted, what must the court do?

A

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)

48
Q

What serious offences have minimum sentences prescribed by statute?

Unless exceptional circumstances

A
  • 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)
49
Q

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?

A
  1. Commission of offence 1 > conviction of offence 1
  2. Commission of offence 2 > conviction of offence 2
  3. 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

50
Q

As burglary is ordinarily an either-way offence, in what situation must D be committed to Crown?

A

Where D faces a 3rd potential conviction and must be admitted to Crown for prescribed minimum 3 year term›

51
Q

When would an extended determinate sentence be imposed?

A

In cases where court finds that offender is dangerous

52
Q

How does an extended determinate sentence work?

A

The licence period is extended as is required to protect public from risk of harm

53
Q

What is a licence period?

A

The remainder of sentence after release from custody

54
Q

What must the extension period be at least, what can it not exceed, and what can the overall term imposed not exceed?

A
  • 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

55
Q

Where D is convicted of murder, what must the court pass? Is this available for any other offences?

A

Must pass a mandatory life sentence - not available for any other offences

56
Q

What does the court fix on passing a mandatory life sentence and what happens on its expiry?

A

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

57
Q

If D is released from a mandatory life sentence, what happens?

A

They remain on licence for life

58
Q

What are the remaining starting points for minimum terms and how does the judge decide which applies?

A
  • 30, 25, 15 years
  • Aggravating and mitigating circumstances decide starting point
59
Q

What is a life sentence with a ‘whole life order’ and for what crimes is it imposed?

A

Means an offender will never be released from prison - imposed for most serious crimes

60
Q

What kind of offenders can be sentenced to a statutory life sentence (imprisonment for life)?

Different to a mandatory life sentence

A

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

61
Q

What sets statutory life sentences apart from mandatory life sentences?

A

There is still an element of discretion for statutory life sentences

62
Q

Which sentences can only the Crown impose?

A
  • Mandatory minimum sentence for third class domestic burglary/Class A drugs offence
  • Mandatory life sentence for murder
  • Life sentence murder
  • Extended determinate sentence
63
Q

When a magistrates’ imposes a determinate custodial sentence, what maximum is it subject to?

A

6 months or 12 months where person charged with 2 or more either-way offences

64
Q

When a magistrates’ imposes a suspended sentence of imprisonment, what maximum is it subject to?

A

6 months or 12 months where person charged with 2 or more either-way offences

Same as determinate custodial

Criminal Law and Practice (21 decks)

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