The law, procedure, and processes involved in MC and CC trials including sentencing and appeals Flashcards
Sentencing guidelines help make sure that?
judges and magistrates in courts across E&W take a consistent approach to sentencing.
Sentencing Code (part of the Sentencing Act 2020) states that?
the courts MUST follow any relevant sentencing guidelines UNLESS it is contrary to the interests of justice to do so.
Guidelines provide guidance on factors the court should take into account that…
can affect the sentence.
Set out different levels of sentence based on the harm caused to the victim and?
how blameworthy the offender is (culpability).
Sentencing guidelines are available for most of the significant offences sentenced in the MC and?
for a wide range of offences in the CC.
Sentencing council also produces?
overarching guidelines on general sentencing issues and principles such as sentencing children and young people.
Where no offence-specific sentencing guidelines exists, courts will refer to?
the general guideline – overarching principles.
Judges will also refer to CoA judgments to look at?
how sentences have been reached for similar cases.
General guideline can be used with offence-specific guidelines where?
some factors AREN’T covered, and overarching guidance is required.
Five purposes of sentencing the courts MUST bear in mind when dealing with the majority of adult offenders:
To punish the offender
Reduce crime
Reform and rehabilitate offenders
Protect the public
Make the offender give something back
To punish the offender?
prison, community service order, fine.
Reduce crime?
preventing the offender from committing more crime or to deter others.
Reform and rehabilitate offenders?
having treatment for drug addiction or alcohol abuse.
Make the offender give something back?
payment of compensation or through restorative justice.
Sentencing, court must determine?
the seriousness of the offence.
s.63, SA 2020 - court is considering the seriousness of any offence,
MUST consider:
Offender’s culpability in committing the offence,
AND any harm which the offence –
Caused,
Was intended to cause,
OR might foreseeably have caused.
Culpability?
blameworthiness of the offender.
Four levels of culpability in the sentencing guideline – overarching principles (sentencing council):
Highest level:
Lowest level:
Lowest level:
Lowest level:
Highest level:
Deliberate
Recklessness
Negligent
Deliberate – intentional act or omission.
Recklessness – acted or failed to act regardless of the foreseeable risk.
Negligent – failed to take steps to guard against the act or omission.
Low/no culpability – act or omission with none of the above features.
Lowest level:
Assessing the level of culpability, further factors the court will take into account are:
High level of planning/sophistication/leading role.
Some planning/significant role.
Little or no planning/minor role.
Lowest level:
Harm
In assessing harm
Guideline
etc.
Harm – includes actual physical harm, level of harm which was intended to be caused and harm which might foreseeably be caused.
In assessing harm – factors the court will identify the levels as set out in the sentencing guideline – overarching principles (sentencing council):
Very serious harm caused to the individual or the wider public/environment.
Serious harm caused or high risk of very serious harm.
Significant harm or high risk of serious harm.
Low or no harm caused or high risk of serious harm.
Lowest level:
Initial assessment -
Provisional sentence -
Initial assessment of harm and culpability should take no account of plea or previous convictions.
Provisional sentence arrived at the court should take into account factors that CAN make the offence more serious and factors which CAN reduce seriousness or reflect personal mitigation.
Statutory aggravating factors:
Previous convictions having regard to – nature of the offence to which the conviction relates and its relevance to the current offence
AND time that has elapsed since the conviction.
Offence committed whilst on bail.
Offence motivated by or demonstrating hostility based on the following characteristics or presumed characteristics of the victim:
Religion, race, disability, sexual orientation, or transgender identity.
Offence was committed against an emergency worker acting in the exercise of functions as a worker.
Other aggravating factors (non-exhaustive):
Under the influence of alcohol or drugs.
As part of a group
Involved use or threat of a weapon.
Planning of an offence.
Commission of the offence for financial gain.
Abuse of trust or dominant position.
Restraint, detention or additional degradation of the victim.
Vulnerable victim.
Victim was providing a public service or performing a public duty at the time of the offence.
Offence committed in the presence of others/children.
Actions after the event including but not limited to attempts to cover up/conceal evidence.
Blame wrongly placed on other(s).
Offence committed on license or while subject to court order(s).
Offence committed in custody.
Offence committed in a domestic context.
Offence committed in a terrorist context.
Factors reducing seriousness or reflecting person mitigation (non-exhaustion):
No previous convictions or no relevant/recent convictions.
Good character
Remorse
Self-reporting
Cooperation with the investigation/early admissions.
Little or no planning.
Offender was in a lesser or subordinate role if acting with others.
Involved through coercion, intimidation or exploitation.
Limited awareness or understanding of the offence.
Little or no financial gain.
Activity originally legitimate.
Age and/or lack of maturity.
Sole or primary carer for dependant relatives.
Physical disability or serious medical condition requiring urgent, intensive, or long-term treatment.
Mental disorder or learning disability.
Determination and/or demonstration of steps having been taken to address addiction OR offending behaviour.
Defendant is sentenced for two or more crimes; the judge or magistrate will state?
whether the prison sentences will be served concurrently or consecutively.
Sentences are concurrent?
defendant will serve them at the same time.
Sentences are consecutive?
defendant will serve on them one after the other.
Concurrent sentences are appropriate if?
the offences arise out of the same incident or facts.
Offences arise from unrelated facts or incidents, or the sentences DON’T reflect the overall level of criminality involved then….
consecutive sentences would be more appropriate.
Defendant’s advocate will use the plea in mitigation to?
persuade the court to impose a lenient sentence on the defendant.
Court CAN take mitigating factors into account when sentencing AND the court SHOULD take account of any potential reduction for a guilty plea in accordance with:
s.73 of the sentencing code
AND
The reduction in sentence for a guilty plea – definitive guideline.
A reduction to the sentence will be available depending at which the stage the guilty plea was entered:
Plea indicated at the 1st stage of proceedings – maximum 1/3 reduction
Plea indicated after the 1st stage of the proceedings – maximum 1/4 reduction.
Sliding scale of reduction thereafter.
1st stage is the first hearing at which a plea or indication of plea is sought and recorded by the court.
The reduction in sentence for a guilty plea can also be taken into account by?
and example?
imposing one type of sentence rather than another.
For example:
By reducing a custodial sentence to a community sentence
OR by reducing a community sentence to a fine.
Custody threshold (s.230 SA 2020):
Court must not pass a custodial sentence UNLESS it is of the opinion that –
The offence
OR combination of the offence and one or more offences associated with it,
Was so serious that neither a fine alone nor a community sentence can be justified for the offence.
Custody threshold is generally not applicable where?
mandatory sentence requirement applies.
Custodial term of imprisonment MUST be?
for the shortest term that is compatible with the seriousness of the offence (s.231 SA 2020).
Limited number of offences which carry a mandatory sentence or?
mandatory minimum term of imprisonment (e.g., murder).
Offender is convicted on more than one count; the court should?
impose separated sentences for each to run either concurrently or consecutively.
Sentencing judge is to take into account?
all relevant factors and calculate up or down from the starting point set by legislation.
