Sentencing Principles (W15) Flashcards
D12.60 - Plea bargaining
A plea of guilty must be entered voluntarily. If the accused is deprived of a genuine choice as to plea and in consequence purports to plead guilty, the plea is a nullity and conviction will be quashed.
D12.61 and 62 - The Goodyear approach to judicial indications of sentence
(1) A court should not give an indication of sentence unless one has been sought by the accused.
(2) However, the court remains entitled to exercise the power to indicate that 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. Where the sentence will vary according to plea, the court should only give an indication as to the sentence following a guilty plea. The court is also entitled to remind the defence advocate that the accused is entitled to seek an advance indication of sentence.
(3) Where an indication is sought, the court may refuse altogether to give an indication, or may postpone doing so, with or without reasons.
(4) Where the court has in mind to defer an indication, the probability is that the judge would explain the reasons and further indicate the circumstances in which, and when, they would be prepared to respond to a request for an indication.
(5) If the court refuses to give an indication, it remains open to the defence to make a further request for an indication at a later stage.
(6) Once an indication has been given, it is binding and remains binding on the judge who has given it, as well as binding any other judge who becomes responsible for a case, unless authority from the CoA or Sentencing Council alters the sentencing guidelines.
(7) If, after a reasonable opportunity to consider their position in the light of indication, the accused does not plead guilty, the indication will cease to have effect.
(8) Where appropriate, there must be an agreed, written basis of plea, otherwise the judge should refuse to give the indication.
D12.63 - Responsibilities of the defence
(1) Subject to the court’s power to give an appropriate reminder to the advocate for the accused, the process of seeking a sentence indication should normally be started by the defence.
(2) Whether or not such a reminder has been given, the accused’s advocate should not seek an indication without signed written authority that the client wishes to seek an indication.
(3) The advocate is responsible for ensuring that the client fully appreciates that (a) he or she should not plead guilty unless they are guilty, (b) any sentence indication given by the court remains subject to the entitlement of the A-G to refer an unduly lenient sentence to the CoA, (c) any indication given by the court reflects the situation at the time it is given and if a guilty plea is not tendered in light of the indication, the indication ceases to have effect, and (d) any indication which may be given relates only to matters about which an indication is sought.
(4) An indication should not be sought while there is any uncertainty between the prosecution and the defence about an acceptable plea, or the factual basis relating to any plea.
(5) Any agreed basis should be reduced into writing before an indication is sought.
(6) Where there is a dispute about a particular fact which counsel for the accused believes to be effectively immaterial to the sentencing decision, the difference should be recorded for the court to consider.
(7) The court should never be invited to indicate levels of sentence which depend on possible different pleas.
(8) In the unusual event that an accused is unrepresented, the accused would be entitled to seek a sentence indication of their own initiative, but it would be wrong for either the court or prosecuting counsel to take any initiative in that regard that might be too readily interpreted as improper pressure.
D12.64 - Responsibilities of the prosecution
(1) As the request for indication comes from the defence, the prosecution are obliged to react to, rather than initiate the process.
(2) If there is no final agreement about the plea to the indictment, or the basis of the plea, and the defence nevertheless seek an indication, prosecuting counsel should remind the court that an indication of plea should not normally be given until the basis of plea has been agreed, or the judge has concluded that it can be properly dealt with without a Newton hearing.
(3) If an indication is sought, the prosecution should normally inquire whether the court is in possession of or has access to all the evidence relied upon by the prosecution, including any personal impact statement from the victim, as well as any pre-cons of the accused.
(4) If the process has been properly followed, it should not normally be necessary for prosecution counsel to do more than (a) draw the court’s attention to any min or mandatory statutory sentencing requirements, and where applicable or where invited to do so, to any definitive sentencing guidelines or any relevant guideline cases, and (b) where it applies, remind the judge of the entitlement of the A-G to refer any eventual sentencing decision as unduly lenient.
(5) In any event, counsel should not say anything which might create the impression that the sentence indication has support or approval of the Crown.
D12.64 - discussion on plea and sentence in chambers
- Such discussions should only take place ‘in the most exceptional circumstances.’
(a) Where they do take place, the prosecution advocate should if necessary remind the judge of the desirability of an independent record, and should make a full note, recording all decisions and comments. This should be made available to the prosecuting authority.
(b) Where there is a discussion on plea and sentence and the prosecution advocate does not believe the circumstances are exceptional, they should remind the judge of the relevant decisions of the CoA and not take part in any discussion on sentence.
(c) The prosecution advocate should not do anything which might be taken to agree, expressly or by implication, with a particular sentence.
(d) In cases where s.35 CJA 1988 applies, the prosecution advocate should indicate that the A-G may refer any sentence as unduly lenient.
D12.65 - the indication process
(1) Any sentence indication would normally be sought at the plea and case management hearing, following a written application.
(2) A hearing involving an indication of sentence should normally take place in open court with a full recording of the entire proceedings, with both sides represented, in the presence of the accused.
(3) The court is most unlikely to be able to give an indication in complicated or difficult cases unless issues between pros. and defence have been addressed and resolved. Therefore, in such cases, no less than 7 days notice of an intention to seek an indication should normally be given in writing to the prosecution and the court.
(4) If an application is made without notice when it should have been given, the court may conclude that any inevitable adjournment should have been avoided and that the discount for the guilty plea should be reduced accordingly.
(5) There should be very little need for the court to be involved in discussion with advocates, save to seek better information on any troubling aspect of the case. An opening by the Crown or mitigation plea by the defence is not envisaged.
(6) The fact that notice has been given, and any reference to a request for indication, or the circumstances in which it was sought, would be inadmissible in any subsequent trial.
(7) Reporting restrictions should normally be imposed, to be lifted if and when the accused pleads or is found guilty.
D12.65 - Developments on Goodyear
- A sentencing judge who has given an indication in accordance with the Goodyear procedure is not required to further reduce the sentence to reflect personal mitigation advanced after the indication has been given; this is in the judge’s discretion.
- A court is entitled in an appropriate case to resile from an indication given even after an accused has then pleaded guilty, providing that the proceedings remain fair to the accused. If an accused did not take advantage of an indication within a reasonable period, the accused could not later complain if the judge considered that the indication had ceased to have effect.
