Topic 18- Sentencing Principles Flashcards
What code governs sentencing?
The Sentencing Code (Sentencing Act 2020, s57)
What are the five factors for in the Sentencing Code that the court must have regard to when looking at the PURPOSE of sentencing?
Punishment of offenders
Reduction of crime
Reform and rehabilitation
Protection of the public
Making of reparations by offenders
What three things does the Sentencing Code not apply to?
Mandatory sentence requirement
Hospital orders
Under 18 sentencing
What three things do the sentencing guidelines specify?
The offence range
The category range
Staring point
When may a court not follow the sentencing guidelines?
If it is in the interests of justice not to do so
What do the sentencing guidelines say about an acceptance of guilt by the offender?
Reduces the impact of the crime upon victims
Saves victims and witnesses from having to testify
Is in the public interest in that it saves time and money
What three reasons are given for why there is a reduction in sentence for a guilty plea?
Reduces the impact of the crime upon victims
Saves victims and witnesses from having to testify
Is in the public interest in that it saves time and money
What will the court look at in determining what sentence to pass on an offender where they induce a guilty plea?
The stage in proceedings where they indicated the guilty plea
AND
The circumstances in which the indication was given
Will the strength of evidence against an offender be considered where a guilty plea has been made?
No, it won’t be considered
What is the maximum level for a reduction of sentence for a guilty plea at first instance?
A third reduction
What is the maximum level for a reduction of sentence for a guilty plea after first instance?
One quarter
If an offender has not indicated a guilty plea sooner than was done, can a third reduction still be made?
Yes, if there were certain circumstances which reduced the defendant’s ability to understand what was alleged, etc
Eg, where they don’t known what they were charged with
If, during a Newton hearing, an offender’s version of events is rejected, what reduction will there be?
Their reduction available at the guilty plea should be halved
If witnesses have been called, it can be more
What two circumstances will the court look at when considering the seriousness of an offence committed whilst on bail?
The fact it was committed on bail as an aggravating factor
AND
State in open court that the offence is so aggravated
What is the most aggravating factor where an offence has been committed on bail?
Where the offence is similar to the one charged
Are offences committed on bail aggravating factors?
Yes
During sentencing, what will the court consider in terms of previous convictions?
The nature of the offence to which the previous conviction relates (whether they are similar)
The time that has elapsed since the previous conviction
Are convictions after the offence was committed classed as previous convictions?
No, they are not
How much weight is put on previous convictions when looking at sentencing?
Not a huge amount of weight
Cannot impose a sentence disproportionate to the seriousness of the latest offence
How is hostility treated as an aggravating factor in sentencing?
If the offence was aggravated by:
Racial, religious, disability, sexual orientation, transgender identity .. hostility
How much weight is put on hostility when sentencing?
A lot of weight
Racially or religiously aggravated offences carry higher maximum penalties
Where it is disputed that hostility was involved in an offence, what will happen?
Likely a Newton hearing will be held to resolve the matter
Are terrorist connections aggravating factors?
Yes
Are lies told by an offence an aggravating factor?
No
What mitigating factors may help mitigate a sentence?
Prospect of rehabilitation
Strong personal mitigation
Immediate custody may impact others
Good character/no previous convictions
What specific examples of personal mitigation are there?
Remorse
Youth/immaturity
Serious illness
Pressure on the offender to commit the offence
Provocation
If an offence occurs a lot in a local area, is this an aggravating factor?
No, it cannot be used to increase a sentence
However, there are some exceptional circumstances where they may increase it as a deterrent
What circumstances are there where a judge may pass a longer sentence due to local prevalence?
Deterrent sentences- it was just and proportionate to increase the sentence
When must a pre-sentence report be made?
Must be obtained unless it considers it is unnecessary
What is a pre-sentence report?
A report which is made to assist the court in determining an appropriate sentence for the offender
What are victim personal statements?
These are statements made by the victim or their families to provide for the court to show the impact the offender has had on them
It helps the court consider the evidence of the victim and the personal impact of the offence in their sentencing
What is the function of a victim personal statement?
It helps the court consider the evidence of the victim and the personal impact of the offence in their sentencing
Where an offender appears to be suffering from a mental disorder, what must be obtained before sentencing?
A medical report must be obtained before passing a custodial sentence
This is unless they feel it is unnecessary to do so
If an accused is deprived of a genuine choice as to plea, what may happen?
The plea is nulled, and the conviction will be quashed on appeal
What is the approach to indicating sentence called?
The Goodyear Approach
What are the responsibilities of the Court when indicating a sentence?
They should not indicate a sentence unless it has been sought by the accused
They can refuse to indicate a sentence without reasons
What are the responsibilities of the defence for indicating a sentence?
The process of seeking a sentence indication should normally be started by the defence
What are the responsibilities of the prosecution for indicating a sentence?
They prosecution are obliged to react, rather than initiate the indication process
What is the indication of sentence process?
The defence usually make a written application at a PCMH
Where a guilty plea has been entered, what are the first two steps that must be made?
Need to ascertain the basis of the facts
Need to consider the character of the offender, obtaining pre-sentence reports, and consider mitigation
Where the offender pleads guilty, what is the first stage of a sentencing hearing?
The prosecution will summarise the facts of the offence
this helps assist the court in sentencing
What are the duties of the prosecution in sentencing?
They adopt a neutral attitude at sentencing, not seeking to influence the court in favour of a heavy sentence
They can only provide evidence of the impact on the victim of the offence
Will assist the court to avoid any appealable errors
May prepare a plea and sentence document
What is a plea and sentence document?
This is a document prepared by the prosecution in sentencing
It identifies any aggravating and mitigating factors of the offence
Do victim personal statements assist with sentencing?
Yes, they can used by the court in passing sentence
The court will usually consider the psychological harm caused
What is the general duty of both counsel’s in assisting the court?
They must assist to ensure the court’s sentencing powers are appropriate
Where there is a dispute in the facts of what happened, which may impact sentencing, what should be done?
The defence may advance a written factual basis of the plea
If this is not accepted by the prosecution, a Newton hearing may be held
What is a Newton hearing?
Where there is a significant dispute in the facts, this can be resolved in a Newton hearing
This will help find an appropriate sentence
Where a basis of plea is made, what are three things it must be?
In writing
Unequivocal
Unambiguous
What is the duty of the prosecution where a factual basis is needed for plea?
They are under a duty to alert the court to the need to resolve the issue and make an appropriate sentence
What is the function of a Newton Hearing?
To establish a true and proper basis for sentence
When will a Newton hearing be unnecessary?
Where the dispute between the prosecution and defence is insignificant or manifestly absurd
What is the procedure in a Newton hearing?
The burden of proof is on the prosecution to satisfy the judge beyond reasonable doubt that their version of events is the correct one
The parties are then given the opportunity to call evidence and cross-examine witnesses
What is the role of the defence in a Newton hearing?
The defence don’t have to call evidence, and may simply observe
What is the role of the Court in a Newton hearing?
The judge must, as the tribunal of fact, observe the directions which would have been given to the jury fro their guidance
They must then consider the evidence and decide on the dispites
It is a basic principle of sentencing to sentence only for the crimes convicted and nothing else.
What are the three exceptions to this rule?
Taking into account a less serious secondary offence which has not been charged (may represent an aggravating feature)
If the offender expressly asks for the other offences to be taking into consideration
If the prosecution case is that the offences convicted are merely samples of a continuing course of conduct and the defence accept that
If there are other offences the offender has not been charged with, can they be considered in sentencing?
Yes, if the offender agrees
For example, to wipe the slate clean
Where an offender has committed a large number of similar offences, but has not been charged with them, can these be used in sentencing?
Yes, as samples of a continuing course of conduct
After the prosecution summarises the facts, what reports may the court look at before sentencing?
Pre-sentence reports
Medical and psychiatric reports
Assessments for community sentence
Who are pre-sentence reports on adults made by?
Probation officers
Who are pre-sentence reports on under 13s made by?
Local authority social workers
Who are pre-sentence reports on 13-16 year olds made by?
Shared between probation service and social services
What are the two circumstances where there is an obligation to obtain a pre-sentence report?
Determining whether a custodial sentence should be imposed
(unless unnecessary)
Before forming an opinion as to the suitability of an offender for various types of sentencing
What is the pre-condition of making a hospital order for sentencing?
The court must be satisfied on the evidence of two medical practitioners that the offender is suffering from a mental disorder
What is the pre-condition of making a custodial order for an offender who may be mentally disordered?
A report from at least one medical practitioner
What is the final stage in the sentencing process?
Defence mitigation
The court must give the defence an opportunity to make representations in order to mitigate their sentence
What is a plea in mitigation?
Usually a speech by defence counsel to mitigate sentence
May also call witnesses to speak to the offender’s good character, etc
What happens after the defence mitigation?
The judge will pronounce sentence
Is a judge under a duty to give reasons for sentence?
Yes
Must explain the reasons in non-technical terms
Must explain the effect of the sentence, and the consequences for non-compliance
What are the circumstances where a sentence may be deferred?
The offender’s conduct after conviction
Any change in the offender’s circumstances
What is the maximum period for deferring a sentence?
6 months
What does deferment of sentence require?
The offender’s consent
The court must also be satisfied it is in the interests of justice
What is the maximum time for adjournment for sentence in magistrates’?
4 weeks on bail
3 weeks in custody
What is the maximum sentence that magistrates may impose for an either-way offence summarily convicted?
6 months imprisonment
and/or
Fine of any amount
Can the maximum sentencing power of magistrates be increase?
For triable either-way offences, the Secretary of State may increase the limit to 12 months
Where a magistrates is sentencing for two or more either way offences, what is the maximum aggregate term available?
12 months
Where an offender is conviction of criminal damage, what is the maximum sentencing power in magistrates’?
Three months imprisonment
OR
Level 4 fine
What is the limit on compensation orders in magistrates’?
There is no limit
What is the maximum duration of a detention and training order for an under 18 by magistrates’?
24 months
(12 months custody and 12 months community)
If an offender has been convicted of one or more either way offences in magistrates, but feel their sentencing powers are inadequate, what can the magistrates’ do?
Commit them to the Crown Court for sentencing
