Unit 19 Custodial Sentences

Question 1

What age does an offender have to be to be sentenced to imprisonment?

Answer 1

Over 21. Offenders aged under 21 at the date of conviction cannot be sentenced to imprisonment

Question 2

Can someone under 21 be committed to imprisonment for any reason?

Answer 2

No. Those under 21 cannot be committed to prison for any reason, such as non-payment of a fine, but this does not prevent the committal to prison of a person aged under 21 who is remanded in custody, committed in custody for sentence, or sent in custody for trial under a s51 sending.

Question 3

What is the maximum custodial sentence if a person is convicted on indictment of an offence against any enactment punishable with imprisonment but the sentence is not limited to a specified term or life by any enactment?

Answer 3

2 years. Where a person is convicted on indictment of an offence against any enactment punishable with imprisonment, but the sentence is not limited to a specified term or life by any enactment, the maximum prison sentence available is two years.
(It seems that this provision does not apply to common-law offences, for which the penalty which may be imposed by the Crown Court is not subject to any limitation except that it must not be disproportionate to the actual offence committed).

Question 4

What is the minimum custodial sentence that can be imposed by the Mags?

Answer 4

5 days

Question 5

What is the maximum custodial sentence a magistrate can impose for a single offence?

Answer 5

6 months (unless a shorter maximum term is provided for a particular offence by statute.)

Question 6

What is the maximum aggregate custodial sentence a Magistrate can impose?

Answer 6

The maximum aggregate term which magistrates can impose is six months, unless two of the terms are imposed for offences triable either way, in which case the maximum aggregate term is 12 months.

Question 7

What maximum custodial sentence can the crown court give for common assault?

Answer 7

The Crown Court is limited to a maximum of six months’ imprisonment for common assault

Question 8

What maximum custodial sentence can the crown court give for criminal damage?

Answer 8

Three months’ imprisonment for criminal damage, to a maximum aggregate custodial sentence of six months, less any appropriate reduction for a guilty plea.

Question 9

How does a suspended sentence effect the maximum custodial sentencing power? (Mags/Summary in Crown)

Answer 9

The judge is entitled to activate the suspended sentence for six months consecutively, making a total of 12 months. 

Question 10

What restrictions do the Mags have on ordering detention within the precincts of the court house or police station?

Answer 10

Until such hour, not later than 8pm. Such order shall not operate to deprive the person of a reasonable opportunity of returning home on the same day.
(A magistrates’ court having power to imprison a person may instead order detention within the precincts of the court-house or at any police station until such hour, not later than 8 p.m. on the day on which the order is made, as the court directs).

Question 11

The court must NOT pass a custodial sentence unless?…

What is the custody threshold?

Answer 11

The court must not pass a custodial sentence unless it is of the opinion that—
a. the offence, or
b. the 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.
(The definitive sentencing guideline, Imposition of Community and Custodial Sentences, states that the clear intention of this ‘threshold test’ is to reserve custodial sentences as a punishment for the most serious offences, but that there is no general definition of where the custody threshold lies.)

Question 12

If the custody threshold is passed, does that mean one must be imposed?

Answer 12

No. ‘Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable’
The custody threshold:
The court must not pass a custodial sentence unless it is of the opinion that—
b. the offence, or
c. the 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.

Question 13

Under s400, when are offences deemed to be “associated”

Answer 13

a. the offender—
i. is convicted of it in the proceedings in which the offender is convicted of the other offence, or
ii. (although convicted of it in earlier proceedings) is sentenced for it at the same time as being sentenced for that offence, or
b. in the proceedings in which the offender is sentenced for the other offence, the offender—
i. admits having committed it, and
ii. asks the court to take it into consideration in sentencing for that other offence.

Question 14

What is the principle of length of sentencing?

Answer 14

when it is necessary to impose a custodial sentence, that sentence should be as short as possible to achieve the goals of that sentence.
S231(2) SA, The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of—
a. the offence, or
b. the combination of the offence and one or more offences associated with it.

Question 15

What should the court NOT take into account when deciding length of sentence?

Answer 15

The definitive guideline, Imposition of Community and Custodial Sentences , says that when assessing what is the shortest term commensurate with the seriousness of the offence, the court should not take into account any licence or post-sentence supervision requirements which may be imposed upon the offender’s release.

Question 16

Should the courts sentence several associated offences consecutively?

Answer 16

They should ensure that the offender doesn’t end up with a sentence that is disproportionate to the overall seriousness of the offending behaviour. Nothing shall prevent a court ‘in a case of an offender who is convicted of one or more other offences, from mitigating the offender’s sentence by applying any rule of law as to the totality of sentences’.

Question 17

What is Lord Woolf’s principle on considering shorter periods of imprisonment?

Answer 17

‘imprisonment only when necessary and for no longer than necessary’

Question 18

What are the rules with a day in prison counting as time served?

Answer 18

A day counts as time served—
a. in relation to only one sentence, and
b. only once in relation to that sentence.
(If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served.)

Question 19

What does the “time served” principle (s240ZA) not apply to?

Answer 19

s. 240ZA does not apply to the detention and training order, so it remains necessary when imposing a detention and training order to take into account any period spent in custody on remand. Otherwise s240ZA h as the effect of crediting periods of remand in custody automatically, so that it is not necessary for sentencers to give any direction that time served on remand in custody should count towards sentence.

Question 20

How should the court approach taking into account “time served”?

Answer 20

Sentence should be awarded in full so as to ensure the sentencing record is accurate (s240ZA does the function of removing time served from this total.
E.g. If the appropriate sentence is one of six months’ imprisonment and D has spent three months on remand, the sentence of six months should be imposed but no further punishment (whether by way of immediate custody or a suspended sentence) is necessary. To this extent, at least, it remains important for accurate information to be before the court as to the number of days spent on remand, so that an explanation can be given in open court as to the sentence passed and its practical effect. For offences committed on or after 1 February 2015, where a custodial sentence of more than one day but less than two years is imposed, D will be subject to supervision and licence requirements.
Also, where a court imposes an immediate custodial sentence and disqualifies D from driving for the same offence, the court is required to add an extension period to the discretionary period of disqualification.

Question 21

What is “Crediting periods of remand on Bail”?

Answer 21

The CJA 2003, s. 240A, states that, where an offender has been remanded on bail and that bail was subject both to a ‘qualifying curfew condition’ (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an ‘electronic monitoring condition’, the court must normally direct that the ‘credit period’ is to count as time served by the offender as part of the sentence.
It is the responsibility of the court to make this direction, unlike the adjustment for time spent on remand in custody, which under s. 240ZA does not require an order of the court.

Question 22

How is the Credit for Periods of remand on bail calculated? (5 steps)

Answer 22

1. Step 1 is to add
   (a) the day on which the offender’s bail was first subject to the relevant conditions (and for this purpose a condition is not prevented from being a relevant condition by the fact that it does not apply for the whole of the day in question), and
   (b) the number of other days on which the offender’s bail was subject to these conditions (but exclude the last of those days if the offender spends the last part of it in custody).
2. Step 2 is to deduct the number of days on which the offender, whilst on bail subject to the relevant conditions, was also
   (a) subject to any requirement of securing the electronic monitoring of the offender’s compliance with a curfew requirement, or
   (b) on temporary release under rules made under the Prison Act 1952, s. 47.
3. Step 3 is to deduct from the remainder the number of days during that remainder on which the offender has broken either or both of the conditions.
4. Step 4 is to divide the result by two, and
5. Step 5 is, if necessary, to round up to the nearest whole number.
   The sentencer should state in open court the number of days on which the offender was subject to the conditions and the number of days which the court deducted under each of Steps 2 and 3.

Question 23

Can a judge pass a sentence partly concurrent and partly consecutive to another sentence?

Answer 23

No. It is unlawful to pass a sentence partly concurrent with and partly consecutive to another sentence

Question 24

When are consecutive sentences appropriate under the Totality sentencing guideline?

Answer 24

The guideline states that consecutive sentences will ordinarily be appropriate where:
a. offences arise out of unrelated facts or incidents.
b. offences are of the same or similar kind, but the overall criminality will not sufficiently be reflected by concurrent sentences;
c. one or more offence(s) qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum.
The guideline states that it is not permissible to impose consecutive sentences for offences committed at the same time in order to evade the statutory maximum penalty. Where consecutive sentences are to be passed, the judge should add up the sentences for each offence and consider if the aggregate length is just and appropriate.

Question 25

From what date did the amendment to the early release provision have effect?

Answer 25

1st April 2020 - amends the automatic release point from one-half to two-thirds of the sentence

Question 26

What was the amendment made to the early release provisions as of April 1st 20?

Answer 26

Amends the automatic release point from one-half to two-thirds of the sentence

Question 27

What is the sentence for Murder for 21+?

Answer 27

Mandatory life imprisonment

Question 28

What is the sentence for Murder for 18-21?

Answer 28

Custody for life

Question 29

What is the sentence for Murder for under 18?

Answer 29

If the offender who is convicted of murder was aged under 18 when the offence was committed, irrespective of age on the date of conviction, the sentence is one of detention at Her Majesty’s pleasure

Question 30

Can the early release provisions apply to murder charges?

Answer 30

Yes, the court must normally make an order that the early release provisions are to apply to the offender as soon as the part of the sentence which is specified in the order has been served. If the offender was aged 21 or over when the offence was committed, the court may, however, because of the seriousness of the offence, or the combination of the offence and one or more offences associated with it, order that the early release provisions are not to apply (“whole life minimum term”)

Question 31

What must the court take into account in deciding the early release term of a mandatory life sentence?

Answer 31

a. the seriousness of the offence, or the combination of the offence and any one or more offences associated with it, and
b. the effect that the following provisions would have if the court had sentenced the offender to a term of imprisonment: crediting periods of remand in custody, and crediting periods on bail subject to certain restrictions

Question 32

In fixing a minimum term for murder should the judge be concerned with the seriousness of the offence itself OR the dangerousness of the offender?

Answer 32

A judge fixing the minimum term to be served as part of the mandatory life sentence for murder is concerned with the seriousness of the offence itself, and not the dangerousness of the offender. The element of public protection is provided by the indeterminate nature of the life sentence and becomes the responsibility of the Parole Board once the minimum term has been served.

Question 33

Must the court state its reasons in granting a minimum term or a whole life order?

Answer 33

Yes. Where the court makes a minimum term order or a whole life order the court has a duty to state its reasons for deciding on the order made in open court, in ordinary language, its reasons; in particular, which of the starting points in sch. 21 it has chosen and its reasons for doing so and for any departure from that starting point (SA 2020, s. 322(4)).

Question 34

What is the minimum custodial sentence for a THIRD class A drug offence?

Answer 34

The court must impose an appropriate custodial sentence for a term of at least 7 years unless the court is of the opinion that there are particular circumstances which—

a. relate to any of the offences or to the offender, and 
b. would make it unjust to do so in all the circumstances.

Question 35

What are does the statute say about awarding a minimum custodial sentence for a THIRD class A drug offence?

Answer 35

(1) This section applies where—
a. a person is convicted of a class A drug trafficking offence (‘the index offence’) committed on or after 1 October 1997,
b. when the index offence was committed, the offender—
i. was aged 18 or over, and
ii. had 2 other relevant drug convictions, and
c. one of the offences to which those other relevant drug convictions related was committed after the offender had been convicted of the other.
(2) The court must impose an appropriate custodial sentence for a term of at least 7 years unless the court is of the opinion that there are particular circumstances which—
a. relate to any of the offences or to the offender, and 
b. would make it unjust to do so in all the circumstances.

Question 36

If a defendant pleads guilty to a third Class A drug offence, how does this affect the minimum sentence?

Answer 36

The court may not impose a sentence which would be less than 80 per cent of the minimum sentence specified.
Eighty per cent of seven years produces a sentence slightly less than five years and eight months. If the sentencer has taken a starting point which is higher than the minimum sentence, a sentence reduction of one third to reflect a timely guilty plea may be perfectly appropriate, always provided that the final sentence is not less than 80 per cent of the minimum sentence.

Question 37

What is the minimum custodial sentence for a THIRD domestic burglary conviction?

Answer 37

The court must impose an appropriate custodial sentence for a term of at least 3 years except where the court is of the opinion that there are particular circumstances which—

a. relate to any of the offences or to the offender, and
b. would make it unjust to do so in all the circumstances.

Question 38

If a defendant pleads guilty to a third domestic burglary offence, how does this affect the minimum sentence?

Answer 38

the court may not impose a sentence which would be less than 80 per cent of the minimum sentence specified.
Eighty per cent of three years produces a sentence of just less than two years and five months. If the sentencer has taken a starting point which is higher than the minimum sentence, a sentence reduction of one third to reflect a timely guilty plea may be perfectly appropriate, always provided that the final sentence is not less than 80 per cent of the minimum sentence.

Question 39

What is the minimum and maximum length of a sentence that may be suspended?

Answer 39

Sentences of more than 14 days and less than 2 years may be suspended.
(21 days = minimum for young offenders so 21 days-2years can be suspended there).

Question 40

What is the minimum sentence of detention in a young offender institution?

Answer 40

21days

Question 41

Can detention and training orders be suspended?

Answer 41

No.

Question 42

What must be satisfied for a suspended sentence to be passed?

Answer 42

A suspended sentence cannot be ordered unless all the statutory provisions as to the imposition of a sentence of immediate imprisonment (or detention in a young offender institution) have been observed. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available.

Question 43

Can you suspend consecutive terms?

Answer 43

Where two or more sentences imposed on the same occasion are to be served consecutively, the power to suspend sentence is not exercisable in relation to any of the sentences unless the aggregate of the terms does not exceed two years.

Question 44

Can a suspended sentence be combined with other orders?

Answer 44

A fine, yes, if just. And there is no restriction on imposing ancillary provisions such as compensation orders, restitution orders, or deprivation orders, at the same time as a suspended sentence.
An immediate prison sentence and a suspended sentence should not be imposed on the same occasion, nor should a suspended sentence be imposed on an offender currently serving a term of imprisonment. A court which passes a suspended sentence on an offender must not on the same occasion impose a community order in respect of that offence or any other offence for which the offender is dealt with by the court.
It is submitted that a suspended sentence cannot be combined with a discharge when sentencing for a single offence but a discharge could be given for one offence when a suspended sentence was passed in respect of another offence sentenced on the same occasion. A fine may be combined with a suspended sentence, but it is improper to combine them when a fine standing alone would have been the proper sentence.

Question 45

What requirements are available for the court to impose during the supervision period (e.g. of a suspended sentence) if it choses to do so, or ordered as part of a community order?

Answer 45

a. unpaid work requirement;
b. rehabilitation activity requirement;
c. programme requirement;
d. prohibited activity requirement;
e. curfew requirement;
f. exclusion requirement; 
g. residence requirement;
i. foreign travel prohibition order requirement;
j. mental health treatment requirement;
j. drug rehabilitation requirement;
k. alcohol treatment requirement;
l. alcohol abstinence and monitoring requirement; 
m. attendance centre requirement;
n. electronic compliance monitoring;
o. electronic whereabouts monitoring requirement.

Question 46

Must the Crown Court supervise any community orders it makes?

Answer 46

No. Where the Crown Court makes a suspended sentence order which imposes any community requirement it may direct that the order is to be subject to magistrates’ court supervision.

Question 47

What are the limitations on imposing a requirement? (read)

Answer 47

It should be noted that the alcohol abstinence and monitoring requirement is not available unless regulations are in force under para. 25(7) of sch. 9, an attendance centre order is not available unless the offender is aged under 25 when convicted of the offence, and an electronic compliance monitoring requirement is not available unless the community order imposes at least one requirement other than an alcohol abstinence and monitoring requirement or an electronic whereabouts monitoring requirement

Question 48

Where an offender is before the court for a breach of a suspended sentence, what are the court’s options?

Answer 48

Where a court deals with a case under this paragraph, the court must deal with the offender in one of the following ways—
a. the court may order that the suspended sentence is to take effect with its original term unaltered;
b. the court may order that the suspended sentence is to take effect with the substitution for the original term of a lesser term; 
c. the court may order the offender to pay a fine of an amount not exceeding £2,500;
d. in the case of a suspended sentence order that imposes one or more community requirements, the court may amend the order by doing any one or more of the following—
I. imposing more onerous community requirements which the court could include if the offender had just been convicted by or before it of the offence in respect of which the order was made and it were then making the order,
II. subject to section 288(4), extending the supervision period, or
III. subject to section 288(2), extending the operational period;
e. in the case of a suspended sentence order that does not impose any community requirement, the court may, subject to section 288(2), amend the order by extending the operational period.

Question 49

Can a suspended sentence be activated in part?

Answer 49

Yes, if it is unjust to activate it in whole. If it is activated in part then that takes the place of the whole sentence (e.g. a judge cannot, of an 18 months suspended sentence, order 3 months for the breach and leave the other 15 months hanging over the accused).

Question 50

If a suspended sentence is breached, will the two terms run concurrent or consecutive?

Answer 50

If the suspended sentence is activated it may be ordered to run consecutively or concurrently to any custodial sentence imposed for the offence which has triggered the breach.
The usual approach is to pass a consecutive sentence, but subject to the restriction on imposing a custodial sentence to commence on the expiration of a prison sentence from which the offender has been released on licence.

Question 51

Can a court extend a suspended sentence when it is activated?

Answer 51

No. There is no power for the court dealing with a breach to impose a custodial term longer than that originally suspended.

Question 52

What are the guidelines for dealing with: conviction for a further offence committed during the operational period of the suspended sentence?

Answer 52

The facts/nature of the new offence is the primary consideration. Relevant factors include any strong personal mitigation, whether there is a realistic prospect of rehabilitation, or whether immediate custody will result in significant impact on others. The guideline states that in considering this question ‘only new and exceptional factors/ circumstances, not present at the time the suspended sentence order was imposed should be taken into account’. Apart from the most serious cases, the court should apply an appropriate reduction to the activated sentence to reflect unpaid work or curfew requirements completed.

Question 53

What are the guidelines for dealing with: failure to comply with a community requirement during the supervision period.

Answer 53

The court must take into account ‘the extent to which the offender has complied’ with the suspended sentence order, and sets out three categories of breach and the approach which may be taken, subject to the question whether activation of the sentence in whole or in part would be unjust in all the circumstances. The relevant factors listed above are repeated, as is the need to take into account only ‘new and exceptional’ matters.

Question 54

How should a court decide on a sum payable for the prosecution costs by the defendant or unsuccessful appellant?

Answer 54

It orders the payment of an amount that it considers ‘just and reasonable’. That sum must be specified in the order. The court may not delegate (e.g., to a justices’ clerk or Crown Court officer) the duty of determining what the accused should pay, although it may seek assistance from the Criminal Cases Unit of the Legal Aid Authority or Registrar of Criminal Appeals.

Question 55

What is the proper approach to ordering the accused to pay the prosecution costs? (ex parte Dove)

Answer 55

1. The order to pay costs should never exceed the sum which the offender is able to pay, and which it is reasonable to expect the offender to pay, having regard to his or her means and any other financial order imposed.
2. Nor should it exceed the sum which the prosecutor has actually and reasonably incurred.
3. The purpose of such an order is to compensate the prosecutor and not to punish the offender, e.g., for exercising the constitutional right to defend him or herself.
4. Any costs ordered should not in the ordinary way be grossly disproportionate to any fine imposed. Where the fine and the costs exceeded the sum which the offender could reasonably be ordered to pay, the costs should be reduced, rather than the fine.
5. An offender facing a fine or an order as to costs should disclose to the magistrates the data relevant to his or her financial position, so that they can assess what the offender can reasonably afford to pay. Failure to make such disclosure could lead the court to draw reasonable inferences as to the offender’s means.
6. The court should give the offender a fair opportunity to adduce any relevant financial information and make submissions prior to the determination of any financial order.

Question 56

When is a surcharge considered?

Answer 56

A court when dealing with an offender for one or more offences committed on or after 1 April 2007 must also order the offender to pay a surcharge

Question 57

When may a surcharge be reduced?

Answer 57

Where a court dealing with an offender considers—
a. that it would be appropriate to make one or more of—
i. a compensation order,
ii. an unlawful profit order, and
iii. a slavery and trafficking reparation order, but
iv. that the offender has insufficient means to pay both the surcharge and appropriate amounts under such of those orders as it would be appropriate to make,
the court must reduce the surcharge accordingly (if necessary to nil). But the court not to take confiscation order into account.

Question 58

What must the court NOT take into account in any necessary reductions to a surcharge?

Answer 58

A confiscation order cannot reduce a surcharge.

Question 59

How does the accused being aged under 18 affect the surcharge?

Answer 59

Where an offender aged under 18 is convicted of an offence and, but for this subsection, a court would order the offender to pay a surcharge—

a. section 380 (orders for payment by parent or guardian) applies to the surcharge, and
b. for the purposes of any order under that section in respect of the surcharge, any reference to the offender’s means were to the means of the offender’s parent or guardian.

Question 60

What are the requirements of a compensation order?

Answer 60

In this Code ‘compensation order’ means an order under this Chapter made in respect of an offender for an offence that requires the offender—

a. to pay compensation for any personal injury, loss or damage resulting from—
i. the offence, or
ii. any other offence which is taken into consideration by the court in determining the sentence for the offence, or
b. to make payments for—
i. funeral expenses, or
ii. bereavement, in respect of a death resulting from any such offence.

Question 61

Can a magistrate deal with a compensation order on guilty plea, despite sending the accused to the crown for sentencing?

Answer 61

Presumably yes. 134(2) “Where a compensation order is available, the court may make such an order whether or not it also deals with the offender for the offence in any other way.”

Question 62

What takes precedence, a fine or compensation? (if the accused does not have the means for both?

Answer 62

Compensation. Where the court considers—
a. that it would be appropriate both to impose a fine and to make a compensation order, but
b. that the offender has insufficient means to pay both an appropriate fine and appropriate compensation,
the court must give preference to compensation (though it may impose a fine as well).

Question 63

Can compensation orders be combined with any other order?

Answer 63

Compensation orders may be imposed on an offender ‘instead of or in addition to dealing with him in any other way’. It is expressly provided that a compensation order may be combined with a discharge.

Question 64

Can a compensation order be combined with custody?

Answer 64

A compensation order may be combined with a sentence of immediate custody where the offender is clearly able to pay or has good prospects of employment on release from custody. It may, however, be undesirable for a compensation order to be hanging over the offender’s head after release, and the order may be ‘counterproductive, and force him back into crime to find the money.’ But there are exceptions, such as where the sentence is a short one and the offender’s job will still be open upon release, or where there is clear evidence that the offender has sufficient assets to pay the compensation.
While it is not wrong to combine a compensation order with a suspended sentence, regard should be had to the fact that if the offender is in breach of the suspended sentence, its activation may bring to an end any prospect of the payment of compensation. It is contrary to principle to suspend a custodial sentence merely because of the offender’s ability to pay compensation.

Question 65

What is a Deprivation Order?

Answer 65

The main power of the courts to order the deprivation of property connected with the commission of an offence.

Question 66

What is the effect of a deprivation order?

Answer 66

The effect of an order under these provisions is to deprive the offender of any rights in the property to which it relates (s. 152), but it does not affect the rights of any other person, who may apply for recovery of the property.

Question 67

What is a Confiscation Order?

Answer 67

The purpose of a confiscation order is to recover from a defendant a sum of money not exceeding the value of his proceeds of crime. A confiscation hearing is mandatory in all cases if the prosecution apply for a determination (and do not withdraw their application). The parties may be required to exchange pleadings. The purpose of the confiscation hearing is to determine whether a defendant has benefited from criminal conduct and, if so, the value of that benefit. In determining these questions the court must, if the defendant has a ‘criminal lifestyle’, as defined, apply certain assumptions that property held or obtained (both currently and historically) should count as his benefit from criminal conduct (unless it would be unjust for those assumptions to be applied). If the court finds that the defendant has benefited in a particular sum, there is a duty to make a confiscation order in that sum, unless the defendant shows that the amount available to him is less than that sum. The duty to make a confiscation order is subject to exceptions, including where civil proceedings are anticipated and where to make the order would be ‘disproportionate’.

Question 68

Can Magistrates make a confiscation order?

Answer 68

No, they must commit to the crown court for specific consideration of a confiscation order.

Question 69

When can a confiscation order be made? (read)

Answer 69

The confiscation order may be made before sentence. Alternatively, the court may postpone the confiscation hearing for up to two years from the date of conviction and proceed first to sentence the defendant, but must not impose any financial orders or penalties in that period, such as a compensation order or fine. In ‘exceptional circumstances’ longer postponements are possible.

Question 70

Overview of the Dangerous Offender Provisions (read)

Answer 70

These sentences require, inter alia, a finding by the court that the offender is ‘dangerous’, in that the offender poses a ‘significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences’. There are two other closely related sentences, the ‘life sentence for the second listed offence’ and the custodial sentence for ‘certain offenders of particular concern’, although for neither of these sentences must the ‘dangerousness test’ be passed. The practical operation of all these sentences requires an understanding of the criteria of eligibility for each, as well as an understanding of the different early release provisions which apply.

Question 71

What is a “specified offence” for the purpose of a the dangerous offender provisions?

Answer 71

‘Specified offences’ are those violent, sexual, or terrorism offences which are listed in the SA 2020, sch. 18. All the offences listed in sch. 18 carry a maximum penalty of two years’ imprisonment or more. In the Sentencing Code a ‘schedule 19 offence’ means a specified offence listed in that schedule which carries a maximum sentence of imprisonment for life (SA 2020, s. 307).

Question 72

What is “serious harm” for the purpose of a the dangerous offender provisions?

Answer 72

‘Serious harm’ means death or serious personal injury, whether physical or psychological

Question 73

To what standard is an assessment of dangerousness made?

Answer 73

The evidence base for the assessment of dangerousness required for the court to establish whether the offender poses a ‘significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences’.

Question 74

What must the court take into account in an assessment of dangerousness?

Answer 74

In making that assessment, the court—
a. must take into account all the information that is available to it about the nature and circumstances of the offence,
b. may take into account all the information that is available to it about the nature and circumstances of any other offences of which the offender has been convicted by a court anywhere in the world,
c. may take into account any information which is before it about any pattern of behaviour of which any of the offences mentioned in paragraph (a) or (b) forms part, and
d. may take into account any information about the offender which is before it.
The reference in s. 308(2)(b) to a conviction by a court includes a reference to a conviction in listed military proceedings and service offences (see s. 308(3)).

Question 75

What does “significant” mean for the purpose of

Answer 75

The requirement that a risk be ‘significant’ means more than a possibility — it must be ‘noteworthy, of considerable amount or importance’.

Question 76

Can dangerousness be found on the basis of a single incident?

Answer 76

Yes. As it can with previous “non-specified” offences.