SENTENCING PRINCIPLES Flashcards
ROLE OF SENTENCING GUIDELINES
- A number of sentencing guidelines exist to ensure consistency of sentence for similar offences.
- These guidelines offer a** starting point** for an offence and list aggravating and mitigating factors, which may increase or lower the sentence respectively.
- Courts are** obliged to **follow the guidelines unless it is against the interest of justice to do so.
- In addition to the overarching guidance on seriousness, there are
various offence-specific guidelines that courts must consider when sentencing for a relevant offence.
DETERMINING SERIOUSNESS
(AGGRAVATING AND MITIGATING FACTORS)
CONCURRENT AND CONSECUTIVE
SENTENCES
- The court must take into account the totality principle when sentencing an ofender. Totality means the overall sentence must not be disproportionate to the overall seriousness of the offending behaviour.
- If offences arise out of the same matter and are** connected** and the defendant is found guilty of more than one of the offences, sentences will generally be concurrent, meaning that each sentence will be served at the same time.
- If the defendant is found guilty of multiple offences that did not arise out of the same conduct, consecutive **sentences are more likely to be imposed, meaning the sentences will be served after each other.
EXAMPLE
D pleads guilty to inficting grievous bodily harm (‘GBH’), assault occasioning actual bodily harm (‘ABH’), and theft and appears in the Crown Court for sentence. The GBH and ABH charges relate to offences against two separate victims and were committed during a brawl outside a pub. Upon arrest, a wallet was found in D’s pocket which had previously been reported stolen. The court is likely to impose concurrent sentences for the GBH and ABH ofences, as they arise out of the same incident. They may prefer to impose a consecutive sentence for theft, since it is not related to the other offences.
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MITIGATION
In addition to the general mitigating factors relating to seriousness listed above, there are a number of other mitigating
factors that the court may take into account and that the
defence solicitor or barrister will address to the court prior to
sentence in a plea in mitigation.
1. Credit for Guilty Plea
A defendant who pleads guilty before trial is entitled to a
reduction in the sentence that would otherwise be imposed—
to give them credit for pleading guilty. The earlier the guilty plea is entered, the greater the reduction in sentence the defendant will receive. If the defendant pleads guilty at the frst opportunity, they will receive a one-third reduction in sentence.
2. Mitigating Factors Relating to Offence Itself
The relevant sentencing guidelines will outline mitigating factors for the type of ofence, which may include low value for property offences and offences committed on impulse. A solicitor should also attempt to minimise any aggravating features related to the offence.
3. Mitigating Factors Relating to Defendant
Mitigating factors relating to the defendant may include the
defendant’s** age, health, good character, work and home situ-ation, progress** since the offence was committed,** remorse** for offending, and **efforts to address **the offending.
sentencing power of courts
- The Mag-istrates’ Court is restricted in its sentencing powers. It can impose a maximum of six months’ imprisonment for a single or multiple summary only ofences or a single either way offence. It can impose a maximum of 12 months’ imprisonment for two or more either way ofences.
- The Crown Court’s sentencing powers are restricted by the maximum sentences for each offence. The maximum sentence for ABH is 5 years, for example.
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TYPES OF SENTENCES
- Custodial Sentences
- Suspended Sentences
- Community Orders
- Fines and Discharges
- Victim Surcharge
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Custodial Sentences
- Custodial sentences can be imposed only when the custody threshold has been passed.
- The custody threshold states
that no offender should be sentenced to a custodial sentence unless the ofence (or series of offences) is so serious that neither a fne nor a community order can be justifed for the offence. - If the custody threshold is passed, the court will then use the relevant sentencing guidelines to determine the appropriate length of sentence.
- It is important to note that an offender will generally spend half their sentence in custody and the remaining half on licence.
- If an offender breaches any term of the licence or commits any further offences during the term of the licence, they would automatically be returned to custody to complete the remainder of the sentence.
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Suspended Sentences
- If the custody threshold has been passed, the court has the option to impose a suspended sentence in place of an immediate custodial sentence.
- The Crown Court can suspend a 2-year sentence.
- The maximum period of suspension is 2 years, and the
minimum period of suspension is 14 days. - The court is able to impose additional requirements (such as a community order) as a part of the suspended sentence.
- If a defendant breaches a suspended sentence requirement or commits an offence whilst subject to a suspended sentence, the court may: (1) activate the custodial term imposed, (2) activate a reduced term to reflect the period of compliance with the suspended sentence, (3) amend the requirements of the sentence to be more onerous, or (4) extend the period of suspension originally imposed.
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Community Orders
- Community orders are sentences carried out in the
community rather than in custody. - The court will impose restrictions that are commensurate with the seriousness of the offence.
- The probation service will frequently provide** a pre-sentence report **if a community order is considered. The probation service will advise on the suitability of any order and particular requirements
- Community Orders include
Unpaid work requirement;
Rehabilitation activity requirement;
Programme requirement, such as a sex offenders or drink driving programme;
Curfew;
Exclusion from a particular area;
Residence requirement;
Mental health treatment requirement; and
Drug rehabilitation or alcohol treatment requirement.
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Fines and Discharges
- Both Crown and Magistrates’ Courts are able to impose a
fine, either as sole sentence or in combination with any other sentence (save for a discharge). - If the court does not feel any other sentence is merited, the court can opt to impose a discharge.
- An absolute discharge means there is no punishment whatsoever, except for the recording of the offence on the record.
- A conditional discharge means the defendant must not offend again for a specifed period (up to three years) or they will face being resentenced for the original offence.
Victim Surcharge
- In addition to** any sentence** imposed, when a defendant is sentenced, a victim surcharge must be levied.
- This is compulsory and is in addition to any sentence. The amount charged will depend on the type of sentence imposed. The surcharge does not go directly to the victim but instead is pooled and distributed by a Fund.
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Newton Hearings
- A defendant may at times wish to plead guilty on a specifed basis if they accept their culpability but do not agree with the full facts as set out by the prosecution.
- In these circumstances, the defendant can offer a basis of plea to the prosecution.
- If the prosecution accepts that the basis ofered reflects the seriousness of the offending, the defendant can then be sentenced on the agreed basis.
- If the prosecution does not accept the defendant’s basis of plea, the court will hold a Newton hearing to settle the disputed facts.
- A Newton hearing takes the form of a trial in which witnesses are called to give evidence.
- If the hearing is settled in the prosecution’s favour, the defendant will lose any credit for the guilty plea.
- If the hearing is settled in the defendant’s favour, the defendant will retain any credit for guilty plea.
