sentencing (week 8) Flashcards
what is the 5 key purposes for sentencing adults?
- Punishment of offenders
- The reduction of crime (including its reduction by deterrence)
- The reform and rehabilitation of offenders
- The protection of the public
- The making of reparation by offenders to persons affected by their offences
when does sentencing happen?
Sentencing happens after a D is convicted – either pleading guilty or found guilty after trial
what are the 3 courts who are all of 1st instance with powers to sentence?
magistrates court
crown court
youth court
what is a Newton hearing?
Where a D pleads guilty on a basis that will make a material difference to the sentence, the court must hold a Newton hearing to decide the factual basis upon which it should pass sentence
what are the 2 key differences to sentencing in different courts?
- the availability of certain sentences; and
- the limits to the powers of the magistrates’ and youth court
how does a Newton hearing take place in the magistrates court?
A Newton hearing is presided over by magistrates or a District Judge much like a regular trial
how does a Newton hearing take place in the crown court?
In the Crown Court a Newton hearing takes place without a jury
when is one of the limited number of occasions where a crown court judge acts as the arbiter of both law and fact?
In a Newton hearing
At the conclusion of the Newton hearing the court must decide whether the prosecution has proved its version of the facts beyond reasonable doubt. If it has, the defendant will be sentenced on…..
on the prosecution version of the facts
At the conclusion of the hearing the court must decide whether the prosecution has proved its version of the facts beyond reasonable doubt. If it has failed to prove their factual basis to that standard, the D will be sentenced on….
on the defence version of the facts
if a D is sentenced to more than one offence what must the total sentence be?
just and proportionate
how long can a court defer a sentence for?
up to 6 months
When can deferral period be extended?
If magistrates’ court defers sentence for a period, at the end of which they commit to the crown court for sentence. CC then has the option to defer for a further 6 months.
how does indication of sentence work in the magistrates court?
if offence is either-way and magistrates has accepted jurisdiction then D can ask for indication on their sentence if they were to plead guilty. Court doesn’t have to give indication but if it does just say whether sentence would be custodial or non-custodial. It ONLY binds if D pleads guilty
what must the D do for an indication of sentence in the crown court? (there are 2 things)
(A) Either accept the prosecution facts, or a written basis of plea must be agreed by the parties and the court; and
(B) Give clear instructions to their counsel that they wish to ask for an advance indication of sentence
what are the two things that the court need to consider when determining the seriousness of the offence for sentencing?
culpability and harm
a) the offender’s culpability in committing the offence, and
b) any harm which the offence
(i) caused,
(ii) was intended to cause, or
(iii) might foreseeably have caused.
what is the threshold for a custodial sentence?
Court must not pass a custodial sentence unless the offence was so serious that neither a fine nor a community sentence can be justified.
so serious
what is the threshold for a community order?
serious enough to warrant the making of such an order
what is culpability?
essentially blameworthiness and is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning.
what is harm?
the assessment of the damage caused to the victim
what should the courts do if there is no offence-specific sentencing guidelines that exist?
the Court will refer to the general guidelines: overarching principles
does a court need to obtain a pre-sentence report before passing a custodial or community sentence?
yes, they must obtain a pre-sentence report unless it considers it unnecessary to do so
what is the purpose of a pre-sentence report?
the report is to assist the court in determining the most suitable method of dealing with an offender
what are the 3 levels/ categories of offences? eg, level 1, level 2, and level 3
- Greater culpability and greater harm.
- Greater culpability and lesser harm, or greater harm and lesser culpability.
- Lesser culpability and lesser harm.
The highest level of offence category would be 1, the lowest 3, and the middle category 2. The guideline will then provide a sentence starting point and range for each category.
what is the effect of evidence of remorse or no evidence of remorse?
evidence of remorse: mitigating factor
no evidence of remorse: not an aggravating factor
if a D pleads guilty at first stage of proceedings - what credit on their sentence can be given if they plead guilty?
maximum 30% reduction on the sentence
if a D pleads guilty after the 1st stage of proceedings what credit can be given on their sentence?
maximum 25% reduction
if a D pleads guilty on the first day of trial what credit can be given on their sentence?
maximum 10% reduction
what is bind over?
it is a non-custodial sentence which is imposed on someone instead of them entering a guilty plea or being tried for an offence.
imposed by the court to ‘keep the peace’ for a sum of money that they forfeit if they fail to do so. if hey breach the peace then they are liable to pay the monetary sum that they are bound over for
what is an absolute discharge?
non-custodial sentence = essentially no punishment as D doesnt need to do anything
what is a conditional discharge?
discharge with conditions attached to it. if they commit another offence during specified period then they can be re-sentenced fro the original offence and sentenced with a new offence
max 3 years (specified time)
how long is the specified time for a conditional discharge?
maximum 3 years
what is the limit of the fine in the crown court?
there is no maximum amount (no upper limit)
what is the limit of the fine in the magistrates court?
level 1 = £200
level 5 = unlimited
what happens if D fails to pay the fine they are imposed with?
can be brought back before magistrates court (doesnt matter if they were fined in the crown court) and as a last resort D can be sentenced to a period of imprisonment for defaulting
what is a community order sentence?
requires D to comply with one or more requirements to punish and/or rehabilitate a D in the community
max length of sentence is 3 years
what is a determinate custodial sentence?
prison sentence for a defined period
how does the court determine seriousness of an offence?
they consider culpability and harm
what is another way of saying indeterminate sentence>
