T23 Non -Custodial Sentence Flashcards
What is an absolute discharge in criminal law? ( think carefully)
An absolute discharge is when a defendant is convicted but receives no punishment because the offence is very minor.
No fines or penalties are imposed, and CANNOT BE COMBINED WITH PUNITIVE ORDERS FOR THE SAME OFFENECE, EX: FINE
BUT ancillary orders such as disqualification from driving can be combined, but cant be combined with a football banning order
What is a conditional discharge?
A conditional discharge means a defendant is released without punishment but must not commit another offence within a set period (up to 3 years).
It is commonly used for minor offences or first-time offenders when punishment is deemed unnecessary. ( often the type of sentence used by MC and for minor offence/ first time offenders
Can a conditional discharge be combined with other penalties?
No, a conditional discharge cannot be combined with “fines or other punitive orders”.
However, it can be combined with “ancillary orders”, including football banning orders.
What happens if a defendant reoffends during a conditional discharge?
If a defendant commits another offence during the conditional discharge period, they can be re-sentenced for both the original and new offences
Can the Crown Court handle breaches of a conditional discharge imposed by a magistrates’ court?
Yes, the Crown Court can deal with such breaches without a committal.
However, it is restricted to the sentencing powers of the magistrates’ court.
What happens to a conditional discharge if the defendant is re-sentenced?
Re-sentencing for the original offence ends the conditional discharge, but any compensation or cost orders remain valid.
Fines In MC
How are fines imposed in the magistrates’ court?
Fines are the most common penalty. The maximum amount is usually set by statute.
If a law only mentions imprisonment, a fine can be imposed instead under s119 Sentencing Act 2020, unless specifically prohibited
Fines in CC
Can the Crown Court impose fines?
Yes, the Crown Court can impose fines as a main or additional penalty. However, fines cannot be combined with certain sentences (e.g., hospital orders or discharges).
For offenders over 18, a prison term must be set in default.
Fines are less common in the Crown Court due to the seriousness of offences and the likelihood of imprisonment.
Principles for setting amount of fine
How is the amount of a fine determined?
- The fine should reflect the seriousness of the offence, with maximum fines for the most severe cases without “mitigation”.
- IMPORTANT
“Fines are not used when immediate custody is required,” and “inability to pay should not result in imprisonment”.
Can the court adjust the fine for a wealthy offender?
Yes, the court can increase the fine for a wealthy offender to ensure a greater impact, but it must still “maintain proportionality with the seriousness of the offence.”
FINE MUST BE PROPORTIONAL TO THE OFFENCE
What does the court consider when imposing a fine under s125 Sentencing Act 2020?
- Before fixing the amount of any fine to be imposed on an offender,
1) The court must inquire into the offender’s “financial circumstances”
2) set a fine that reflects the seriousness of the offence
3) It must also consider the “overall circumstances of the case”, including the offender’s known or apparent financial situation.
Financial Circumstance, Seriousness, Overall circumstance
What is a financial circumstances order?
The court may make this “financial order” at what instance?
A financial circumstances order requires the defendant to provide details of their financial situation and assets.
Failing to comply or providing false information is an offence, punishable by a fine.
How are fines paid?
Fines are usually payable immediately, but the court can allow payment in instalments, typically aiming for payment within 12 months.
For those with low incomes or in corporate cases, longer payment periods may be set, often in weekly or monthly amounts.
What are community orders and when can they be imposed?
Community orders allow the defendant to remain in the community instead of being imprisoned.
The court MUST NOT MAKE a community order if the offence or combination of the offence is serious enough to warrant it
The court will consider all available information, including aggravating or mitigating factors.
When can a community order be imposed?
A community order can be imposed when the offence is punishable by imprisonment and the offender is at least 18 ( there is another type of order for youths ( Youth Rehabilitation Order).
- A community order can last for up to “three years”.
- Both magistrates’ and Crown Courts have the same powers regarding community orders.
What restrictions apply to community orders?
A community order cannot be combined with a hospital order, guardianship order, or a suspended sentence for the same offence.
THE COURT MUST NORMALLY OBTAIN A PSR BEFORE IMPOSING A COMMUNITY ORDER
What are the two main goals of a community order?
A community order aims to provide punishment proportional to the crime and to promote the rehabilitation of the offender or reparation to the community.
What does Section 201 of the Sentencing Act 2020 provide?
Section 201 of the Sentencing Act 2020 provides a “community requirements table” that lists the requirements that can be attached to community orders.
What does Section 208 of the Sentencing Act 2020 require when passing a community order?
Section 208 requires that the requirements of a community order must be
-suitable for the offender and proportionate to the seriousness of the offence or any associated offences.
What are the particular requirements in forming part of the community order
The court must ensure that the requirements are the most suitable for the offender and that any restrictions on liberty are proportionate to the seriousness of the offence or related offences.
(Requirements are suitable to the offender and that the restriction on liberty is proportionate )
What are the requirements that can be imposed as part of a community order?
A: The court can impose one or a combination of the following requirements under a community order:
1.Unpaid Work: Between “40 to 300 hours” (Sentencing Act 2020, Schedule 9, part 1).
2.Rehabilitation Activity: Directed activities for a specified number of days (Sentencing Act 2020, Schedule 9, part 2).
- Programme Requirement: Participation in an accredited programme (Sentencing Act 2020, Schedule 9, part 3).
- Prohibited Activity: Refraining from specified activities, e.g., attending football matches (Sentencing Act 2020, Schedule 9, part 4).
- Curfew Requirement: Imposing a curfew of 2 to 20 hours (up to 112 hours in a week) for up to 2 years, monitored by electronic tagging (Sentencing Act 2020, Schedule 9, part 5).
- Exclusion Requirement: “Excluding the offender from certain areas or places for up to 2 years”,
-> monitored by electronic tagging (Sentencing Act 2020, Schedule 9, part 6). - Residence Requirement: Requires the offender to reside in a specific place (Sentencing Act 2020, Schedule 9, part 7).
- Foreign Travel Prohibition: Prohibiting travel to a specified country on certain days (Sentencing Act 2020, Schedule 9, part 8).
What are the other type requirment can the court impose under a community order
- Mental Health Treatment: “Requires consent for treatment from a medical practitioner” (Sentencing Act 2020, Schedule 9, part 9).
- Drug Rehabilitation: Consent to treatment and testing for drug misuse (Sentencing Act 2020, Schedule 9, part 10).
- Drug Testing: Requires the offender to provide drug samples (Sentencing Act 2020, Schedule 9, part 10A).
- Alcohol Treatment: “Consent to treatment for alcohol misuse “(Sentencing Act 2020, Schedule 9, part 11).
- Alcohol Abstinence & Monitoring: Monitoring alcohol levels with an electronic tag (Sentencing Act 2020, Schedule 9, part 12).
**IMPORTANT
14. Attendance Centre: For offenders under 25, between 12 to 36 hours of attendance (only for offences committed before 28th June 2022) (Sentencing Act 2020, Schedule 9, part 13).
IMPORTANT
- Electronic Compliance Monitoring: Monitoring compliance with other requirements electronically (Sentencing Act 2020, Schedule 9, part 14).
- Electronic Whereabouts Monitoring: Monitoring the offender’s location electronically (Sentencing Act 2020, Schedule 9, part 14).
What happens if an offender breaches a community order requirement?
If a responsible officer believes the offender has failed to comply without a reasonable excuse, they must warn the offender that further non-compliance within 12 months will result in the offender being brought back to court.
Typically, the court that made the order handles the breach, but the Crown Court can direct that breaches be dealt with by the magistrates’ court.
sUMMARY: give warning first, that if fails again then within 12 months be brought back to court, if the order given in the cc they can order that any breach of community order be dealt in mc
What happens if a defendant fails to comply with a community order requirement?
If a defendant fails to comply without a reasonable excuse, the court can take action as outlined in Schedule 10 of the Sentencing Act 2020.
The breach must be either admitted by the defendant or proven beyond a reasonable doubt.
If the court finds that the defendant has breached the community order without reasonable excuse then the court MUST do one of the following?
- Amend the order to make the requirements more onerous.
- Fine the defendant up to £2,500.
- Revoke the order and deal with the original offence differently, potentially including a custodial sentence for persistent breaches
- If the order qualifies for ***“special procedures,” *impose “imprisonment for up to 28 days.”
What else can the court do if a defendant breaches a community order?
- The court can extend the order by up to 6 months (once only, even if it exceeds 3 years) (IMP)
- revoke the original order if re-sentencing occurs, but the court must consider how much the defendant has complied with the order.
