Unit 22 Sentencing Principles Flashcards
What are the 5 general (statutory) purposes of sentencing?
a. the punishment of offenders,
b. the reduction of crime (including its reduction by deterrence),
c. the reform and rehabilitation of offenders,
d. the protection of the public, and
e. the making of reparation by offenders to persons affected by their offences
NB: no one purpose is greater than any other, and they may all be relevant
What are the purposes of the child sentencing rules?
The general purposes don’t apply. Instead:
(1) to prevent offending by children and young persons, and
(2) have regard to the welfare of the child or young person
When do the general, statutory sentencing purposes not apply?
- U18
- fixed penalty (eg murder)
- Offence has a prescribed minimum sentence
- Dangerous offenders
- Hospital orders
Must the sentencing guidelines always be followed?
Yes - unless it would be contrary to the interests of justice
What are the 10 stages for deciding on the sentence?
- Reach a provisional sentence taking into account the statutory maximum sentence, sentencing judgements of the CoA and definitive sentencing guidelines (culpability of the offender and then harm caused)
- Aggravating and Mitigating factors
- Consider factors which indicate a reduction for assistance to the prosecution
- Reduction for guilty pleas
- Dangerousness
- Terrorism
- Totality principle
- Compensation and Ancillary orders
-> Should be considered in all cases
-> Specific criteria for offences involving firearm/imitation firearm/offensive weapon - Reasons
-> Duty to give reasons for and explain effect of sentence - Consideration for time spent on bail
-> Must consider whether to give credit
How does a court determine an appropriate provisional sentence (i.e. step 1 of sentencing) if there is no definitive sentencing guideline applicable to that offence?
Takes account of:
(1) statutory max sentence (and, if appropriate, min)
(2) sentencing judgments of CoA (Crim)
(3) SGs for analogous offences – carefully, making adjustments for differences
- Court to be assisted by parties
- Court not to take into account any draft SGs
How do courts assess seriousness (this is for the purposes of step 1: provisional sentence)?
(1) culpability
(2) harm caused, intended to be caused or might foreseeably have been caused
N.B. Initial assessment of harm/culpability takes no account of plea or previous convictions
What are the rules applicable to cases where the court seeks to impose a fine?
In Blackstone’s this is under ‘step 2 - aggravating + mitigating factors’, but judging by the text I think these are just general rules on fines that apply across step 1 and step 1.
- Court must determine the level of fine using the guidelines (will lead to a fine band range);
- The fine must reflect (i) the seriousness of offence and (ii) the financial circumstances of the offender
- Where possible the fine should remove the economic benefit the offender has obtained through commission of offence including:
(i) avoided costs
(ii) operating savings
(iii) any gain made as direct result of offence
-> in doing this, court should avoid double recovery - Fine should meet objectives of punishment, deterrence, and removal of gain – should not be cheaper to offend than to comply w/ the law
- If offender’s means are limited, priority given to compensation over payment of other penalty
- Where can’t calculate/estimate economic benefit, court may draw on info from enforcing authorities about general costs of operating within the law
- When sentencing organisations, the fine must be sufficiently substantial to have economic impact – proportionate to gravity of offence
- Offender should disclose data to show court what they can reasonably pay
What kind of information can the court take into account in considering aggravating factors?
Any info about offender before it
List the 6 statutory aggravating factors
N.B. this is non-exhaustive: court can take into account any info before it
- Previous convictions
- Fact that offence was committed while A was on bail
- Racial or religious aggravation
- Terrorist connection
- Aggravation relating to disability, sexual orientation or transgender identity
- Offence committed against emergency worker acting in exercise of functions
What rules govern the court’s consideration of previous convictions?
- Can (i.e. just because A has a previous conviction does not necessarily mean that the court will increase sentence) be considered as an ‘aggravating factor’
- May be taken into account, having regard to:
(i) nature of offence and relevance to current offence, and
(ii) time elapsed since conviction - Does not count convictions accrued after instant offence committed
- If repeat offender, who cannot be rehabilitated, punishment and deterrence come to fore – but not inevitable that sentence must be longer each time, and still must be proportionate to offence itself
- Convictions are in UK or EU member state or other country if appropriate
What rules govern the court’s consideration of the fact that the offence was committed whilst A was on bail?
(1) Court must treat this as an aggravating factor
- Even more so if same type of offence
(2) Consecutive sentences appropriate where one offence committed while offender on bail re: another
- NB: these principles together may result in disproportionately severe sentence
- I.e. if A is sentenced more harshly for offence 1 taking into account the fact that offence 2 was committed whilst on bail and is then sentenced for offence 2 this might be a disproportionately severe sentence (but in principle this kind of thing is possible)
What rules govern the court’s consideration of racial or religious aggravation?
(1) Judge must state in open court that this was a factor
(2) Appropriate extension →
- Depends on all circumstances
- But +2 years to a 4.5-year sentence is reasonable)
(3) Does not apply for:
(i) offences w/ racially/religious aggravated forms w/ higher max penalties
(ii) conviction of basic offence where racially aggravated one exists, unless evidence emerges during trial
What must the judge do if they consider that the offence is aggravated by a terrorist connection?
- State this in open court
- Term must be aggregate of appropriate custodial term and a further 1 year for which offender subject to a license
What rules govern the court’s consideration of aggravation related to disability, sexual orientation or transgender identity?
(1) Judge must state in open court
(2) Immaterial whether hostility based on any other factor as well
N.B. an attack motivated by the fact that A believed V to be a paedophile is not aggravated by hostility towards sexual orientation
Give some (non-statutory) examples of aggravating factors and some examples of circumstances that do not constitute ‘aggravating factors’
Examples: Influence of alcohol/drugs, part of a group, use/threat of a weapon, planning, commission for financial gain, abuse of trust/dominant position, restraint/detention/degradation of V, vulnerable V, V providing public service or performing public duty at time, attempts to conceal evidence, domestic context, etc.
But not: Lies told at interview or during trial; Public protestations of innocence falling short of publicly denouncing V’s allegations (which could be an AF)
What are the general rules governing mitigating factors?
(1) Even if offence so serious that community sentence not normally justified, court may, after considering mitigation, pass a community sentence
(2) Weight to be given to MF is at discretion of court
-> but more serious offence → less weight
(3) Court can mitigate penalty in offender’s sentence by taking into account any other penalty included in that sentence
(4) Court must give A an opportunity to make representations and introduce evidence relevant to sentence. If A = U18, may give parent/guardian present such an opportunity.
What is a ‘victim personal statement’? What are the rules in relation to it?
- Statement from V or close family (if V dead)
- Vs must be informed that they may make a statement but no obligation
- Not an opportunity for V to suggest/discuss sentence to be imposed
- Judge must not assume that absence of a V statement = absence of harm
What are the factors indicating that it may be ok to suspend a custodial sentence?
- realistic prospect of rehabilitation
- strong personal mitigation
- immediate custody will result in significant harmful impact upon others
Give some examples of mitigating factors
No previous convictions, no relevant/recent convictions, good character, remorse, self-reporting, cooperation, no planning, subordinate role, coerced, limited awareness/understanding, no financial gain, delay since apprehension, activity originally legitimate, age/lack of maturity, carer for dependents, mental disorder, etc.
Is the reduction for a G plea the same thing as a reduction for mitigating factors or reduction for assisting P?
No -> it’s a distinct consideration
What must the judge do if they have decided to reduce the sentence by virtue of a G plea?
State that they will give credit and how much at the time of the plea (and at the time of sentencing)
What are the maximum levels of reduction of a custodial sentence for a G plea?
Depends on when G pleaded guilty:
- At first hearing at which a plea or indication of plea is sought → 1/3 (not if G plea is given at PTPH unless D has indicated G in Mags)
- After first hearing → 1/4 (no sliding scale from 1/3)
- First day of trial → 1/10
- Decreases further to zero throughout trial
Does the fact that minimum custodial sentence is imposed for (i) the third class A drug trafficking offence and (ii) the third domestic burglary mean that these sentences cannot be reduced by a G plea?
No - sentence can still be reduced up to 80% of required minimum sentence
BUT n.b. min. sentence under Firearms Act 1968 s. 51A does not permit reduction
Can a G plea reduce a custodial sentence to a community order?
Yes
Can a G plea reduce a community order to a fine?
Yes
Can a court suspend a custodial sentence to reflect a G plea?
No
What must the court consider in deciding the amount of reduction following a G plea? What must the court NOT take into account?
Consider:
(a) the stage in proceedings when G plea indicated
(b) the circumstances in which indication given
IGNORE: the strength of the evidence (i.e. the fact that G pleaded guilty bc the case against him was v strong)
What happens if A was unable to understand what was alleged or genuinely could not know whether he was G of offence charged and therefore did not plead G sooner?
Where - by virtue of these circumstances - it would have been unreasonable to expect A to plead guilty sooner the 1/3 reduction should still be made.
Should not be made where D merely delays G plea to assess strength of P evidence and prospect of conviction/acquittal
What is the position where D pleads guilty after a Newton hearing/on the day of such a hearing ?
Normally, the reduction which would have been available at the stage of proceedings G plea indicated should normally be halved
Basically the point is that the reduction for G plea is made is that is saves costs and time. Where A only pleads guilty after substantial costs have already been incurred, the reduction must be less than it would have been at an earlier point in time.
What is the position where D convicted of lesser/different offence from originally charged, and earlier pleaded G to lesser offence?
Appropriate reduction should be made. Will depend on things like whether A unequivocally indicated that they wanted to plead guilty vs just generally indicated willingness to plead guilty.
What is the court’s duty to follow sentencing guidelines subject to?
Any rule of law as to the totality of sentences (‘the totality principle’)
Can the court further penalise an offender bc the crime in question is particularly prevalent?
In general, no
But, there can be exceptional circumstances where local prevalence should influence sentence = particular crime prevalent in a specific area results in compelling need to treat the offence more seriously than elsewhere
Requirements for exception:
(1) Supporting evidence from external source needed (e.g. community impact statement or statement from local Criminal Justice Board)
(2) Must be just and proportionate to increase the sentence
What does the court do when it considers A’s ‘dangerousness’ (step 5)?
Consider whether it would be appropriate to impose life/extended sentence
The Totality Principle
Rule = total sentence should justly and proportionately reflect all the offending behaviour before the court
- usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences
- principle applies whether sentences are concurrent or consecutive
When will an indication of sentence be given?
ONLY if requested by the accused.
What happens if a plea is entered into involuntarily (i.e. A has no genuine choice)?
Plea is a nullity and conviction will be quashed
What is the name of the case in which the correct approach to judicial indications of sentence is set out?
Goodyear - pretty much all of the rules on indications come from that case (and have subsequently been endorsed in CrimPD, etc.)
