Sentencing principles - syllabus area 22 Flashcards
s57 of the Sentencing Act 2020 does not apply to an offence which a mandatory sentence requirement applies. It also does not apply to those aged under 18 at the time of conviction. True or false?
True - E1.2
how is the seriousness of an offence assessed?
by considering the harm and culpability of the offence - SG2-3 (Blackstone supplement)
once a sentence is arrived at by looking at the sentencing guidelines must must the court consider next?
any aggravating and mitigating factors that increase or reduce the seriousness of the offence - SG2-4 Blackstone’s supplement
when imposing a fine and the means of the offender is limited what should be given priority?
priority should be given to compensation (where applicable) over payment of any other financial party - SG2-5 Blackstone’s supplement
judges have a duty to always give reasons for, and explain the effect of the sentence. true or false?
True - SG2-15 Blackstone’s supplement
what should the court consider when applying a reduction for guilty plea?
- the stage of proceedings for the offence at which the offender indicated the intention to plead guilty
- the circumstances which the indication was given
for mandatory or terrorism offences, nothing prevents the court from imposing as appropriate what type of custodial sentence?
a custodial sentence which is not less than 80 percent of the term that would otherwise be required - E1.8
How should court determine the appropriate sentence for the offence(s)?
- in accordance with any offence-specific sentencing guideline
- then determine the level of reduction for a guilty plea
- state the amount of reduction and apply the reduction
- follow any further steps within the guideline to determine the final sentence - E1.9
Where an offender is being sentenced on the same occasion for multiple offences, how should a proper reduction be made?
it should be made in respect of each sentence, rather than the sentence being totalled and the reduction applied to the total - E1.9
Where an accused has entered different pleas to different offences at different stages, how may the court decide to give the credit?
the court may decide whether to give differing levels of credit as appropriate or to take a view across the offences as a whole and make the same reduction for each offence - E1.9
what is the maximum level of reduction for a guilty plea when entered at the first stage of proceedings?
one-third
where the plea of guilty is indicated after the first stage of proceedings, what is the maximum level of reduction?
one-quarter
the reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of the trial - E1.9
what should the reduction be decreased to during the course of the trial?
it can be decreased further to zero if Guilty plea is entered during trial
if an offender is convicted of a lesser offence from that originally charged, how does the court apply the credit for guilty plea?
if the offender made an earlier indication of a guilty plea to the lesser offence, the court should give the level of reduction appropriate to the stage of proceedings at which this indication was made - E1.9
Is an offence committed on bail considered an aggravating factor?
yes - E1.14
It is even more acute when the offence is of the same type of offence for which bail was granted
what must the courts consider in relation to previous convictions?
the nature of the offence, the relevance to the current offence and the time that has elapsed since that relevant previous conviction - E1.15
a relevant and recent previous conviction is an aggravating factor. what must the court do when it treats a relevant conviction as an aggravating factor?
state in open court that the offence is so aggravated - e1.15
how must the court treat an offence aggravated by hostility under s66 of the Sentencing Act 2020
as an aggravating factor - E1.16
How must the court treat an offence with a terrorist connection?
as an aggravating factor, and must state in open court that the offence is so aggravated - E1.16
when dealing with crimes of prevalence (commonness i.e knife crimes, drug crimes) in an area, where must supporting evidence come from before the judge may treat the offence more seriously?
from an external source to justify claims that a particular crime is prevalent in their area - E1.22
What should courts consider in regards to the totality principle when sentencing for more than a single offence?
whether the sentence should be structured as concurrent or consecutively - E13.22(A)
how should courts address a multiple offending in accordance with the totality principle?
the court should address the offending behaviour, together with the factors personal to the offender as a whole - E13.22(b)
what type of report must be obtained and considered by the court if the offender is aged 18 or over?
Why must it be obtained
a pre-sentence report - E1.22
it must be obtained before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report.
what are the exceptions to getting a pre-sentence report?
if one already exists in respect of the offender and the court considers in the circumstances of the case and having regard to information contained in the report, if there is more than one (the most recent) that it is unnecessary to obtain a PSR - E1.26
Is a custodial sentence or community sentence invalidated by the court’s lack of obtaining a PSR before forming an opinion in relation to which PSR requirements apply?
it is not invalidated by the fact the court did not do so - E1.26
what is the essence of a victim personal statement?
to provide real assistance for the court. They provide a practical way of ensuring that the court considers the evidence of the victim about the personal impact of the offence - E1.30
Victims must be provided a statement making it clear that they MAY make a statement but are under no obligation to do so. True or false?
True- E1.30
An absence of a victim personal statement does not mean the judge should assume it indicates absence of harm
what must the court do when an offender is or appears to be suffering from a mental disorder?
obtain and consider a medical report before passing a custodial sentence, other than one fixed by the law - E1.33
It is subject to the fact that they need not order the report if they are of the opinion it is unnecessary to do so
does a medical/expert report displace the need for a PSR?
No, it does not. it also doesn’t limit the requirement for the court to have regards to all the circumstances of the case, including aggravating and mitigating factors - E1.33
what happens when an accused is deprived of a genuine choice as to plea and in consequence purports to plead guilty?
the plea is a nullity and the conviction will be quashed on appeal - E12.60
A plea of Guilty must be entered voluntarily
what is the correct approach to judicial indications of sentence called?
a Goodyear approach - E12.61
Under a Goodyear approach, what are the court’s responsibilities?
- the court should not give an indication of sentence unless one has been sought by the accused
- the court has the discretion to exercise the power to indicate the sentence or type of sentence, on the accused would be the same whether the case proceeds as a plea of guilty or goes to trial with a resulting conviction
- where sentence varies according to plea the court should give an indication of sentence following guilty plea.
- the court may refuse to give an indication or may postpone doing so with or without giving reasons. judge may explain reason for deferral and when they would be prepared to respond to the request.
- for the rest, see D12.62
is a Goodyear indication binding?
yes, it is binding and remains binding on the judge who gave it and any other judge responsible for the case
what happens if after a reasonable opportunity to consider their position after indication the party pleads not guilty?
the indication will cease to have effect -D12.62
Where appropriate there must be an agreed, written basis of plea, otherwise the judge should refuse to give an indication- true or false
true - D12.62
The process to seek a sentence indication should be started by which party?
it should normally be started by the defence -D12.63
Whether or not the court gives a reminder to the advocate of the accused that an indication of sentence can be given, the accused’s advocate should not seek an indication without what?
signed written authority that the client wishes to seek an indication - D12.63
What happens when an indication of sentence is requested but there is no final agreement about the plea to the indictment, or the basis if the plea?
prosecuting counsel should remind the court that an indication of sentence should not normally be given until the basis of the plea has been agreed - D12.64
Where an indication is sought what should prosecution do?
prosecution should whether the court has possession of or has had access to all evidence relied on by the prosecution, including any personal impact statement from the victim of the crime - D12.64
Where should a hearing of an indication of sentence take place?
in open court with a full recording of the entire proceedings, and both sides represented, in the presence of the accused - D12.65
When would the court give an indication of sentence in complicated or difficult cases?
when issues between prosecutor and defence have been addressed and resolved - D12.65
What is the time limit to give a notice for an indication for sentence?
no less than seven days notice of an intention to seek an indication. It should be given in writing - D12.65
where an offender pleads guilty in the CC, what is the first stage ?
a sentencing hearing for prosecution to summarise the facts of the offence -D20.2
Where there are split pleas by co-defendants how will the court handle this?
the offender who pleaded guilty will normally be adjourned until the conclusion of the trial of the accused who pleaded NG- D20.2
what are the duties of prosecutors in relation to sentencing?
provide evidence of victim personal statement
address possibility of ancillary orders in conjunction with main sentence where necessary
help the court avoid appealable error
prepare a plea and sentence document - D20.3
What type of hearing takes place when facts of the offence are in dispute?
a Newton hearing
the Court of appeal in newton stated 3 ways a judge can approach a case where facts are in dispute
in certain circumstances it is possible to ascertain the answer from a jury
to hear the evidence from one side and the other and come to his own conclusion
to hear no evidence but listen to the submissions of counsel and then come to a conclusion - if he does this and there is conflict between both sides, he must accept the defendant’s side - D20.8
Where the defendant pleads guilty on a limited factual basis, they bear the duty to raise the issue. The defence should set out the basis of the plea in a written form. what should be included in this form?
that there is a dispute and the defence wish to see it resolved in a Newton hearing - D20.9
Where the court does not accept a written basis of plea it must make this clear before proceeding to sentence
what is the prosecution duty at a Newton hearing?
to alert the court to the potential need to resolve a factual issue that may affect the appropriate sentence - D20.10
Where there is a basis of plea agreed between parties, or not contested by prosecution, what is the judge entitled to?
a Newton hearing, if It appears necessary to establish a true and proper basis for sentence - D20.10
would a Newton hearing enable a defendant who was guilty on either version of events to change their plea?
no it would - D20.11
The court is allowed to decline to hear evidence at a Newton hearing where D’s version of events is absurd or clearly unreliable, true or false?
true
but the judge should explain why the conclusion has been reached
if prosecution agrees to D’s account, what should happen?
the agreement should be reduced to writing and signed by both advocated, which would be available to the judge in advance of the sentencing hearing and before the court approves acceptance of plea - D20.11(4)
If prosecution rejects D’s account what should happen?
the area of dispute should be identified in a document that focuses the attention of the court on the exact areas in dispute
does the Crown court have the power to hold a Newton hearing even where such a hearing has already taken place in the magistrates’ court?
Yes - D20.11 (last paragraph)
where the judge’s sentence will be the same no matter the dispute, a judge will sentence on the assumption that the defence version is correct, true or false?
true -D20.16
The judge is entitled to not waste time by hearing evidence where a defendant’s version is soo absurd. true or false?
True - D20.18
Who bears the burden of proof in a Newton hearing?
prosecution , beyond reasonable doubt - D20.21
the judge should direct on the standard of proof as he would a jury, a failure to do so is not fatal in every case
how does a Newton hearing go?
The hearing follows normal adversarial lines, parties have the opportunity to call evidence as they wish and cross examine witnesses
what happens at a Newton hearing when basic facts are not in dispute?
the prosecution are not to call any evidence, judge is entitled to draw inferences as long as findings are expressed to be in accordance with the burden and standard of proof - D20.23
Defence cannot be forced to give evidence or participate at a Newton hearing, true or false?
True - D20.24
Role of the judge in a Newton hearing?
to approach the matter and direct himself as if he were a jury - D20.25
When should the prosecution adduce evidence of the offender’s character and antecedents?
after the prosecution summary of facts, or immediately after the jury’s verdict if guilty if it was a not guilty plea - D20.43
what are the exceptions where the court would sentence the offender for crimes he has not been convicted for?
a less secondary offence which was not charged but represents an aggravating factor of a primary offence
if the offender asks the court to take the other offence into consideration
if the prosecution case is that the offences in indictment are a sample of a continuing course of conduct and the defence accept - D20.50
After prosecution summary of facts, the Court considers any reports that have been prepared on the offender. true or false?
True - D20.57
These include pre sentence reports, medical reports, psychiatric reports, etc
can the court accept a pre-sentence report made orally in court?
Yes - D20.64
who prepares adult pre sentence reports?
probation officers - D20.65
Who prepares the pre-sentence report of those aged under 13?
local authority social workers
who prepares the presentence report for those aged 13-16
it is shared between probation officers and social services
what are the two circumstances a PSR must be obtained?
- in determining whether a custodial sentence should be imposed (it is not obligatory where the court deems it unnecessary and the offender is over 18). a PSR is mandatory for children or young people unless the court has considered an existing PSR
- Before forming an opinion regarding the suitability of the offender for various types of sentence.
where it concerns sustainability of an offender under 18 the report should be in writing
how many medical practitioners must give the court a report regarding a mental disorder?
two medial practitioners - D20.70
A report from at least one medical practitioner is required before a custodial sentence is passed on a mentally disordered offender
who else must have a copy of the report?
the offender’s authorised person (usually counsel or solicitor) - D20.70
in the case of a young offender, their parent or guardian present in court
what is the final stage in the sentencing process?
mitigation of defence - D20.75
the plea in mitigation usually consists solely of a speech by defence counsel.
as a matter of discretion counsel may additionally call witnesses in relation to good character of the offender
what happens after the defence mitigation?
the judge pronounces sentence - D20.91
what must the judge do when passing sentence?
the judge must give reasons for, and explain the effects of, the sentence passed and the consequences of non compliance. This must be done in non-technical terms - D20.92
The judge must also say what degree of credit was being afforded for D’s guilty plea.
why does the court defer sentence?
to have regard to the offender’s conduct after conviction
to have regard to any change in circumstances
what is the maximum period the court must defer a sentence
six months. It may be deferred only once -D20.102
Deferment requires the offender’s consent and the court must be satisfied that exercising the power would be in the interest of justice
where the magistrates court defers sentence and then commits to crown court for sentence, the Crown court may also defer sentence. True or false?
true - D20.102
what is the maximum period for adjournment after conviction in the magistrates’ court?
four weeks on bail OR three weeks in custody - D23.2
The court does is not obliged to pass sentence at the end of the first adjournment, if necessary they may adjourn again
what is a common reason that the courts adjourn for?
a pre sentence report, especially if the court is considering a custodial sentence
how do the magistrates’ court handle matters that when there are two co-accused with different pleas?
like the Crown court, by dealing with the trial of the NG plea first before the G plea - D23.7
Decision to sentence in the magistrates’ court may be by majority of those sitting. what happens if there is an equal division?
the court should adjourn under s10 MCA 1980 for the matter to be reconsidered at the resumed hearing - D23.8
what is the maximum sentence the magistrates may impose on an offender?
six months imprisonment and a fine of any amount- D23.14
where the magistrates’ court is sentencing for two or more either way offences, what is the maximum aggregate them of imprisonment?
12 months - D23.17
where the offender is 18, what is the limit on the amount of compensation the magistrates’ court may order?
there is no limit -D23.19
What may the magistrates’ court impose on an offender aged 18-20?
a sentence of detention in a young offender institution - D23.20
Where the offender is under 18 at the date of conviction what may the youth court impose?
a detention and training order maximum 24 months ( 12 months custody and 12 months supervision in the community) - D23.20
when can an offence be joined?
they are related to each other if the charges for them could be joined in the same indictment.
The two charges must be founded on the same facts or be a part of or series of offences of the same or a similar character. - D23.42
when can the crown court exceed the sentencing power of the magistrates court?
where magistrates send the case to the CC under s14 of the SA 2020 and state their powers are inadequate to deal with the offender or where the offender is convicted by the CC of one or more of the related offences. - D23.42
when may the committal for sentence powers be used?
committal for sentence under s 14 - 19 of the SA 2020, committal for sentence in breach of a conditional discharge imposed by the CC and committal where the offender commits a further offence during the operational period of a suspended sentence imposed by the CC- D23.55
