Sentencing principles Flashcards
What is the principle of totality?
Two aspects:
The overall sentence should reflect all of the offending behaviour with reference to the overall harm and culpability together with any agg and mit
It should be just an proportionate
What is the maximum reduction available for a guilty plea for an offence with a mandatory sentencing guideline?
20%
So sentence will be at least 80% of the mandatory guideline
How is the reduction for a guilty plea applied to a sentence?
Starting point established
Then reduced for guilty plea
Then further steps on the offence specific guideline followed
What is the maximum reduction available for a guilty plea, and when is it available?
1/3
Must plead guilty on first appearance
What is the effect of an offender’s version of events being rejected at a Newton hearing on the guilty plea reduction?
Halves the reduction
What is maximum reduction available if you do not plead guilty at first appearance?
1/4
What is the max reduction available on the first day of trial?
1/10
Can the reduction for a guilty plea change a custodial sentence into a non-custodial?
Yes
However cannot justify suspending a sentence (separate issue)
What are typically aggravating factors?
Committing an offence on bail
Previous convictions (if relevant)
Motivated wholly or partly by hostility to a social group (racial, religious, disability, sexual orientation, transgender identity)
terrorism
When must a pre-sentence report be obtained and considered?
If over 18 unless circumstances of the case the court considers it unnecessary
If under 18 unless there is one already which is sufficient
Can a pre-sentence report be given orally?
Yes - for someone over 18
What are pre-sentence reports used for?
Useful for deciding on community orders and suspension of sentence (i.e. where the probation service would manage an offender)
Also useful for dangerous offender provisions
Who creates a pre-sentence report?
probation if over 18
Probation and SW if 13-17
SW if under 13
When must a victim personal statement be provided?
Never must - it may be produced.
What is the court’s obligation if the offender is or appears to be suffering from a mental disorder?
Court must obtain and consider a medical report before passing a custodial sentence
Exceptions:
If the sentence is fixed by law
if, in the circumstances of the case, it considers it unnecessary
How many medical practitioners must give evidence to justify making a hospital order?
Two
Who must a medical report be shown to if produced?
D’s counsel
Parents if D under 18
What is the general principle about pleas that pertains to plea bargaining
Pleas must be given freely
If genuine choice removed, plea is a nullity
What are the principles in Goodyear
Court should not indicate likely sentence unless accused asks
Should indicate the likely sentence under a guilty plea, not after trial
Court can refuse to give an indication or defer the decision
If the request for an indication is denied, the accused can make a further application
If an indication is given it is binding on a judge who has given it (and further judges)
An indication will cease to be binding if no plea is entered within a reasonable time
What is the responsibility of defence counsel with regard to pleas?
Must ensure that the accused does not plead guilty unless they are
Should attempt to agree the factual basis of any plea before seeking an indication. If there is no agreement, an indication should not be sought
An indication should be sought on the basis of a formal agreement on plea and factual basis of that plea
What is the procedure for seeking an indication?
Normally sought at PTPH
In a complex case should give 7 days notice of an intention to seek an indication
If notice is not given and the judge must adjourn to consider, this may reduce the reduction for guilty plea
After being found or pleading guilty, can offences not before the court be considered for sentence?
Yes - offender can seek to include other offences to “wipe the slate clean”
What must the judge do when passing sentence?
Give reasons
Can sentencing be deferred?
Yes - for a maximum of 6 month s
When can sentencing be deferred?
With the offenders consent - it must be in the interests of justice
Is deferment the same as adjourning?
No
What is the purpose of deferrment?
To allow the court to account for and consider conduct of the offender after conviction and any changes in the offenders circumstances
(i.e. allow them to give birth, or finish education, or to demonstrate they can comply with conditions)
How long can the mags adjourn between conviction and sentence?
If in custody 3 weeks
If out, then 4
Can be repeated
What is the minimum custodial sentence the mags can pass?
5 days
Where will people between 18 and 20 go if given a custodial sentence?
Young offenders (though can still be in adult prison)
What is a Newton hearing?
Convened to deal with situations where the factual basis of the sentence is in dispute after a plea
Can a newton hearing be ordered if the parties agree the factual basis?
yes - sentencing must be done on what the court sees as the proper basis
what is the test for holding a newton hearing?
In the crown court - substantial difference
In the mags -
significant difference
Who holds the burden of proof in a Newton hearing?
P to satisfy the judge beyond reasonable doubt that their version is the correct one
Does D have to call evidence at a Newton hearing?
No - but D themselves must give evidence or an inference can be drawn
What is tested at a Newton hearing?
The defences basis of plea
When does a Newton hearing not need to be held despite contested factual basis?
When the judge is sure that the defence basis is manifestly wrong - can simply move from that and use prosecutions basis
