T22- Sentencing Flashcards
1
Q
What are the sentencing options after a conviction (following trial or guilty plea)?
A
The court MAY:
Sentence immediately, Adjourn for reports, Commit for sentence to the Crown Court (if in magistrates’ court), or Defer sentence.
2
Q
Can sentencing take place on the day of conviction?
A
Decision should be made as to sentencing immediately, BUT
often a PSR is needed first
3
Q
What is a PSR and why is it used?
A
A Pre-Sentence Report helps the court decide the most suitable sentence.
4
Q
When must a PSR be obtained for offenders under 18?
A
The court MUST OBTAIN AND CONSIDER A PSR when deciding whether or not to impose a custodial or community sentence, UNLESS a recent PSR exists and it’s deemed unnecessary based on that and case circumstances.
5
Q
When is a PSR not required before sentencing?
A
If a fine or discharge is clearly appropriate.
6
Q
Can sentencing still happen on the day of conviction for a community sentence?
A
Yes, if it’s at the lower end of the scale and a fast delivery or oral report is available.
6
Q
When must a PSR be requested?
A
If a community sentence is being considered—usually a full standard delivery report is needed (2–3 weeks adjournment).
6
Q
Is a PSR needed if custody is likely?
A
Yes, normally a full standard delivery report is required unless exceptional
(e.g. the offender is already in prison).
- its a report that requires an adjournment of about three weeks
6
Q
When will a court rarely sentence without a full PSR?
A
When custody is a realistic option.
6
Q
Who prepares the pre-sentence report (PSR)?
A
The probation service or youth offending team, depending on the age of the offender.
6
Q
Are there exceptions to needing a full PSR before custody?
A
Yes — e.g. if the offender is already a serving prisoner.
6
Q
Can a court impose a community sentence on the day of conviction?
A
Yes, if the sentence is at the lower end of the scale and a fast delivery or oral report is available from probation.
6
Q
What other types of reports might the court request?
A
Psychiatric or medical reports, especially if mental health issues are suspected.
6
Q
When is a medical report required before sentencing?
A
Under s232 Sentencing Act 2020, a medical report MUST be obtained before passing a custodial sentence if the offender has or appears to have a mental disorder, unless unnecessary.
6
Q
When must medical reports be obtained under the Mental Health Act 1983?
A
Before making a hospital order.
6
Q
Should the court provide reports to the parties in advance?
A
Yes, but in practice, reports are often received on the day of the hearing.
6
Q
What should the court do when adjourning for sentencing reports?
A
The COURT SHOULD Indicate the likely level of sentence or state that all sentencing options remain open.
6
Q
What must the court warn the defendant about during adjournment if relevant?
A
That committal for sentence to the Crown Court is a possibility, to avoid creating a legitimate expectation of being sentenced in the magistrates’ court.
6
Q
Is the court bound by the sentence recommended in a pre-sentence report?
A
No, the court is not obliged to follow the report’s recommendation.
6
Q
When can magistrates commit an offender to the Crown Court for sentence?
A
When they believe their sentencing powers are insufficient – under s.14 Sentencing Act 2020.
6
Q
What powers does the Crown Court have after committal for sentence?
A
The same sentencing powers as if the offender had been convicted on indictment.
6
Q
What does s.18 Sentencing Act 2020 allow regarding related offences?
A
So lets say where accused is sent to CC for trial on one or more matters, but also plead guilty to other EWA, the MC MAY commit for sentence in relation to those offences under s.18
“related” means that they could have been joined on the same indictment
6
Q
What qualifies offences as “related”?
A
They could have been joined on the same indictment.
6
Q
What limits the Crown Court’s powers when sentencing under s.18 Sentencing Act 2020?
A
-> The Crown Court is limited to magistrates’ sentencing powers unless:
a) The magistrates state their powers were inadequate, or
b) The accused is convicted in the Crown Court of one of the related offences sent for trial.
6
What does s.20 of the Sentencing Act 2020 allow?
It allows the court to commit an offender for sentence on any other offence before the court, "including summary-only offences", when the offender is already being committed for sentence under another provision (e.g., s.14).
7
What is a deferred sentence under the Powers of Criminal Courts (Sentencing) Act 2000?
It's when the court postpones sentencing for up to 6 months to allow the defendant to meet set goals that may positively affect their sentence.
7
When is a deferred sentence typically used?
In cases where the court believes the defendant could demonstrate improvement (e.g., rehabilitation), possibly avoiding custody.
8
What happens to bail/custody during a deferred sentence?
The defendant is no longer remanded in custody or on bail during the deferral period.
9
Who determines the facts for sentencing after a trial in the magistrates’ court?
The magistrates or district judge who heard the trial use the facts they found proved.
10
How are sentencing facts determined after a Crown Court trial?
Since the jury gives no reasons, the judge interprets the verdict and usually sentences based on the prosecution's case presented at trial.
It is the jury who will determine whether the D is innocent or guilty
If D is found guilty be jury, its the judge who interpret how the jury reached its decision
The judge will sentence based on the p case during the trial, unless they are any particular reasons not to do so
11
What is a Newton hearing?
A hearing held when a defendant pleads guilty but disputes key facts of the prosecution’s case that could materially affect the sentence.
12
When does a Newton hearing take place?
When a defendant pleads guilty but disputes the prosecution’s version of events in a way that may impact the sentence.
13
What is the purpose of a Newton hearing?
To resolve factual disputes between the prosecution and defence that could materially affect the sentence.
14
What is an example of when a Newton hearing might be needed?
When a defendant admits to assault but denies that the incident was as violent as alleged by the prosecution.
THERE MUST BE MATERIAL AFFECT OF THE ALLEGED FACTS THAT THE D DISAGREES
15
What is a written basis of plea?
A written statement by the defence proposing an alternative version of events for sentencing, often given to avoid a Newton hearing.
16
Can a Newton hearing be avoided?
Yes, if the prosecution accepts the defendant’s written basis of plea and the judge agrees it is fair and supported by evidence.
17
Who makes the final decision on accepting a basis of plea?
The judge.
18
When should the prosecution not accept a basis of plea?
If it contains factual disputes likely to affect sentencing
or
includes claims outside the prosecution's knowledge that require testing.
19
What happens if the basis of plea is not accepted?
A Newton hearing is held to determine the facts for sentencing.
20
What standard of proof applies at a Newton hearing?
he prosecution must prove beyond reasonable doubt that their version of the facts is correct.
21
What evidence is presented at a Newton hearing?
Evidence from both sides regarding the disputed facts and circumstances of the offence.
22
When is a Newton Hearing not necessary?
A:
1. If the factual difference wouldn’t materially affect the sentence.
2. If the defendant’s version is manifestly absurd. That no court would accept it
3. If the defendant refuses to participate in the Newton Hearing , e.g. declines to give evidence.
23
What happens if the court doesn’t hear evidence on a disputed matter?
It should usually accept the defence version unless it is manifestly absurd. ( RMBR THIS)
24
What is the consequence if the defendant loses a Newton Hearing?
The defendant will typically lose part of the guilty plea discount they would have received. ( lose all credit- EVEN IF PLEAD AT FIRST INSTANCE)
25
What are indications of sentence?
These are situations where the defence asks the judge to indicate the likely sentence if the defendant pleads guilty.
26
Why is caution needed when giving sentence indications?
Because it may pressure the defendant into pleading guilty.
That's why R v Goodyear set out clear guidelines as to when and how a JUDGE CAN PROVIDE AN INDICATION OF SENTENCE
27
What are the main guidelines for Goodyear indication? (Part 1)
1. The D shld request an indication, rather then judge indicate
2. The judge is entitled, however, to remind the D that such req can be made
3. The judge is entitled to refuse to provide an indication if one is requested
4, Before indication can be given, the facts of the offence will be USED FOR sentence MUST be agreed by P and D
5. The agreed facts shld be written and signed by both parties
6. An indication shld not be sought where there is any uncertainty about the acceptability of pleas/ basis of plea
28
What are the main guidelines for Goodyear indication? (Part 2)
7. Goodyear indication shld be in open court
8. If indication is given ITS BINRING ON THE JUDGE if the D enters a guilty pela as a result of the indication
9. If however, the D has been given reasonable amount of time to consider the indicating but don't plead guilty then,THE GOODYEAR CEASE TO BE BINDING.
10. The indication will be most severe sentence the D would receive if entered a guilty plea at time of indication
11. Summary: The sentence may reduce in severity from the indication given when the court has hear the MITIGATION but cant increase in severity
29
What is the sentencing procedure in the magistrates’ court and Crown Court?
The procedure is very similar in both courts. If the facts are not disputed, it follows these steps:
30
What does the prosecutor do during sentencing?
The prosecutor will outline the prosecution case (if the defendant was convicted after trial, this step is usually unnecessary), highlight any previous convictions, apply for any ancillary orders (e.g., costs), and bring attention to the relevant sentencing guidelines.
31
What does the defence do during sentencing?
he defence will provide mitigation, referencing the PSR (if available), and refer to relevant sentencing guidelines.
32
What does the court decide on the sentence?
The court will consider the prosecution case, defence mitigation, and relevant guidelines before deciding on the sentence.
33
What should the court do when delivering the sentence?
The court must explain its reasons for the sentence, outline the sentencing guidelines applied, and communicate the sentence and its factors clearly to the defendant in plain language.
34
What is the Sentencing Council and its role?
The Sentencing Council, created after the Sentencing Guidelines Council in 2010, issues sentencing guidelines to assist courts in England and Wales when sentencing offenders.
35
What does Section 59 of the Sentencing Act 2020 require regarding sentencing guidelines?
A: It requires the sentencing court to MUST follow any relevant sentencing guidelines UNLESS the court is satisfied that doing so would be contrary to the interests of justice.
36
Where can the definitive sentencing guidelines be found?
The definitive sentencing guidelines can be found on the Sentencing Council’s website.
37
What should the court refer to for offences without definitive guidelines?
For offences without definitive guidelines, the court can consult Court of Appeal guidance, which is compiled into a compendium by the Sentencing Council.
38
Is there any general guideline that applies to all cases?
Yes, there is an overarching principle guideline, which is applicable to all cases and can be found on the Sentencing Council’s website.
39
What are the purposes of sentencing under Section 57 of the Sentencing Act 2020? ( THE PUPOSE OF SENTENCING)
A: The purposes of sentencing include:
1. The punishment of offenders.
2. The reduction of crime, including deterrence.
3. The reform and rehabilitation of offenders.
4. The protection of the public.
5. The making of reparation by offenders to persons affected by their offences.
40
Are there any exceptions to the application of Section 57 of the Sentencing Act 2020?
Yes, Section 57 does not apply:
1. When the offender is under 18 at the time of conviction.
2. To an offence where the sentence is fixed by law.
41
What must the court consider when determining the seriousness of an offence under Section 63 of the Sentencing Act 2020?
A: The court MUST consider:
1. The offender's culpability in committing the offence.
2. Any harm the offence caused, was intended to cause, or might foreseeably have caused.
The determination of seriousness involves considering both CULPABILITY and HARM
42
What are the four levels of criminal culpability identified by the Sentencing Council?
1. Intention to cause harm: The highest culpability occurs when the offence is planned, and the more harm intended, the greater the seriousness.
2. Recklessness: The offender is reckless about whether harm will be caused, recognizing the risk but giving no thought to the consequences, even though the risk is obvious to most people.
3. Knowledge of specific risks: The offender knows the specific risks involved in their actions, even if they do not intend to cause harm.
4. Negligence: The offender is guilty of negligence, where they fail to take proper care or foresee harm in situations where they should have.
Summary:
1. Intention to cause harm ( highest culpability when offence is planned)
2. Reckless as to whether harm is caused
3. Has knowledge of specific risks
4. Guilty of negligence
43
What types of harm does the Sentencing Council identify?
A: The Sentencing Council identifies three types of harm:
1. Harm to individual victims: This includes physical injury or financial loss.
2. Harm to the community: This refers to interference with the administration of justice.
3. Other types of harm: This includes harm such as cruelty to animals.
44
What factors affect the assessment of culpability in sentencing
1. Culpability Factors:
a) Culpability is the initial factor in determining the seriousness of an offence.
b) Greater culpability is present if:
I) An offender deliberately causes more harm than necessary.
ii) The offender targets a vulnerable victim (e.g., due to age, disability, or occupation).
2. Aggravating factors indicating higher culpability:
a) Committing the offence while on bail.
b) Racially aggravated offence.
c) Planning the offence.
d) Use of a weapon.
45
What factors affect the assessment of harm in sentencing?
1. Harm is judged in light of the offender's culpability.
2. Aggravating factors indicating more serious harm:
I) Multiple victims.
ii) Especially serious physical or psychological injury.
iii) Additional degradation of the victim (e.g., taking photographs as part of the offence).
46
What mitigating factors court will consider when deciding for sentence
1. Mitigating factors reduce the seriousness of the offence, indicating:
a) Unusually low culpability of the offender.
b) Harm caused is less than usually serious.
2. Examples of mitigating factors:
a) Provocation of the defendant.
b) Playing a minor role in the offence.
47
What is the purpose of mitigation in sentencing?
The purpose of mitigation is to provide the court with information about the offender and the circumstances of the offence that may influence the sentence. This includes:
a) Information about the offender ( df character, such as calling character witness)
b) context of the offence ( mitigation give defence the opp to explain the circumstance surrounding the offence)
c) Explore sentencing options ( Mitgations allow the D to discuss and suggest which sentence app based on the circumstance)
Section 77 of the Sentencing Act 2020 allows the court to take account of any matters it considers relevant in mitigation of sentence. After assessing the seriousness of the offence (based on culpability and harm), the court must consider any mitigating factors.
48
What are offences "taken into consideration" (TICs)?
1. Offences not charged: These are offences that the defendant has not been formally charged with but is willing to admit to.
2. Defendant's admission: The defendant admits to these offences as part of their plea, often with the aim to "wipe the slate clean" for those offences.
3. Effect on sentencing: Although admitting these offences could lead to a heavier sentence than if they were not admitted, it is typically not as severe as if the defendant were convicted for each offence separately.
4. Impact of TICs: Once an offence is taken into consideration, the defendant cannot be prosecuted for it separately again in the future.
TICs allow the court to consider these offences when determining the appropriate sentence, often leading to a more lenient sentence overall compared to separate charges.
49
What is the role of the Victim Personal Statement (VPS) in sentencing?
- This is to take into account of the effect of the offence on the victim when determining sentence
- The victim can describe the impact of the offence has on them
50
Who can provide a VPS?
The victim can provide the VPS, or in certain cases, relatives of the victim (e.g., if the victim has died).
51
How does the VPS affect sentencing?
The VPS helps the court assess the seriousness of the offence by considering the victim's impact.
It can either increase or decrease the court's assessment of the offence's seriousness.
52
What is required for the form and procedure of a VPS?
The VPS must be a formal witness statement or expert's report and must be served to the defence.
How a VPS is taken: When police officer takes statement from victim, the victim given chance to MAKE A VPS THEN
53
When is the VPS considered?
The VPS is considered by the court BEFORE SENTENCING, along with other factors, to help determine the appropriate sentence.
54
What is the purpose of the VPS?
The purpose of the VPS is to provide information about how the offence has affected the victim, influencing the court’s understanding of the offence’s seriousness.
55
Can the VPS influence the actual sentence given?
No, the VPS does not express opinions about the sentence but may affect the seriousness of the offence as assessed by the court
56
How is the VPS presented in court?
The victim MAY read the VPS themselves, or it can be read on their behalf.
57
What is not allowed in a VPS?
The VPS is not an opportunity for the victim or their relatives to suggest what sentence should be imposed
58
How does a guilty plea affect sentencing?
A guilty plea usually results in a reduction in sentence, with discounts of up to one-third, depending on when the plea is entered.
59
What is the maximum reduction for a guilty plea at the first stage of proceedings?
The maximum reduction is one-third when the guilty plea is entered at the first stage of proceedings.
60
What are the reductions for a guilty plea when a trial date has been set or after the trial begins?
A guilty plea after the trial date is set results in a maximum of one-quarter reduction, while a guilty plea at the 'door of the court' or after the trial begins results in a maximum of one-tenth reduction
61
What constitutes the 'first stage of proceedings' for a guilty plea?
The first stage is usually the first hearing where the plea or indication of plea is sought and recorded by the court, typically in the magistrates’ court for either-way offences or indictable-only offences.
62
When is the full one-third reduction available?
The full one-third reduction is available only when the defendant admits guilt at the first stage of proceedings.
63
What is the early guilty plea scheme in Crown Court?
Many Crown Court centres offer an early guilty plea scheme, where a guilty plea entered at the Plea and Trial Preparation Hearing (PTPH) usually results in a 25% reduction rather than the full one-third.
64
Can there be exceptions for reducing a sentence if the plea is entered later than usual?
Yes, if there are circumstances that significantly reduced the defendant's ability to understand the charges or if it was unreasonable to expect a plea earlier, a reduction of one-third may still apply.
so where the D ability to understand what was alleged or its unreasonable to expect the D to indicate guilty plea sooner than was done, = the D can still make 1/3 reduction shld he plead guilty upon understanding
65
What are the exceptions to the standard reduction scheme?
A: - If an offender’s version of events is rejected at a Newton Hearing, the reduction is halved. ( IMP)
1. If an offender is convicted of a lesser offence after indicating a guilty plea to that lesser offence, the reduction depends on the stage at which the indication was made.
2. The sentence cannot be reduced below the minimum sentence (e.g., for offences involving prohibited firearms, Class A drug trafficking, or dwelling house burglary).
3. The min sentnece of 5 years for certain offence involving firrms - THE SENTENCE CANT BE REDUCED BELOW 5 YEARS.
66
What should the court state when pronouncing sentence after a guilty plea?
The court should state what the sentence would have been if no reduction had been applied due to the guilty plea.
67
What sentencing options can both the magistrates' court and Crown Court impose?
Both courts can impose absolute and conditional discharges, fines, community sentences, and custodial sentences.
68
What is the sentencing hierarchy based on the seriousness of the offence?
1. Least serious offences: Likely to attract a discharge or fine.
2. Medium gravity offences: Likely to receive a community sentence.
3. Most serious offences: Will usually warrant a custodial sentence.
69
What is the 'custody threshold' as per Section 230 Sentencing Act 2020?
The court MUST not pass a custodial sentence unless it determines the offence, or a combination of offences, is so serious that neither a fine nor a community sentence is justified.
70
What factors should the court consider when applying the custody threshold?
1. Custody is reserved for the most serious offences.
2. The court must assess the seriousness of the offence to decide if the threshold is met.
3. Passing the custody threshold doesn’t mean a custodial sentence is inevitable; personal mitigation may lead to an alternative sentence.
71
What approach does the Sentencing Council recommend when determining if a custodial sentence is applicable?
A: The court should ask:
1. Has the custody threshold been passed?
2. Is a custodial sentence unavoidable?
3. Can the sentence be suspended?
4. If not, impose a sentence of appropriate length based on the seriousness of the offence.
72
What does Section 231 of the Sentencing Act 2020 state about custodial sentences?
A custodial sentence MUST be for the shortest term that is commensurate with the seriousness of the offence or combination of offences.
73
What is the 'community sentence threshold' as per Section 204 Sentencing Act 2020?
The court must not pass a community sentence unless it determines the offence, or a combination of offences, is serious enough to warrant such a sentence.
74
What factors should the court consider when applying the community sentence threshold?
1. The court must assess the seriousness of the offence to decide if the v threshold is met.
2. Passing the threshold doesn’t mean a community sentence is inevitable; personal mitigation may lead to a different sentence.
75
