Unit 23 Non-Custodial Sentences Flashcards
In what circumstances does the court have a power to grant an absolute or conditional discharge?
(1) sentence is not fixed by law nor has mandatory minimum and
(2) having regard to the circumstances incl. nature of offence and character of offender, thinks it is inexpedient to inflict punishment
Which courts can grant absolute or conditional discharges
Any criminal court
Are there age restrictions regarding D for the power to grant absolute or conditional discharges?
No - can be granted regardless of D’s age
What is the condition that is imposed when a conditional discharge is granted?
Sole condition = offender should commit no further offence for a period of up to 3 years (precise period to be fixed by the court) - court cannot insert a different condition.
The court should specify the type of conduct from which D is to refrain.
When can a conditional discharge NOT be granted?
Any offence except:
(1) those fixed by law or w/ mandatory minimum
(2) D who received youth (conditional) caution + youth caution is convicted within 2 years of last caution (unless exceptional)
(3) D convicted of breaching a prohibition in a sexual harm prevention order
How can a conditional discharge order be breached?
ONLY by the conviction of the offender of a further offence committed in the period of the discharge.
What is the consequence of breaching a conditional discharge order?
- Court will sentence for subsequent offence
- Court may re-sentence for original offence in any manner in which it could have done if the offender had just been convicted before the court for that offence (but if case was originally dealt with in Mags and breach is now before the CC, CC’s sentencing powers are limited to those available to mags)
- Terminates the conditional discharge
- But any compensation or costs orders remain valid
Can one mags court deal with the breach of a conditional discharge imposed by another mags court?
Yes, but only with the original courts’ consent
What are the powers of the court if an offender who was under 18 at the time when they were convicted of the offence for which they got a conditional discharge is now over 18 (and is now before the court bc they breached the order)?
Can resentence within powers available at time of original sentencing
What can discharge orders be combined with and what can they not be combined with?
CANNOT
- Combine w/ penalty for same offence (unless permitted by statute)
–> But if 2+ offences, can discharge for one and sentence for others
CAN
(1) Impose disqualification (cannot ban from football if absolute discharge (but possible if it’s conditional)) - n.b. a disqualification is a punitive measure so this is an exception to the fact that generally a conditional discharge cannot be combined with a punitive order (I always forget this!)
(2) Make compensation order, deprivation order, or restitution order
(3) Make unlawful profit order
(4) Make costs order
(5) Make confiscation order
What can fines be combined with? What can’t they be combined with?
(1) They can be imposed alone or in combo with a custodial sentence
(2) Cannot be imposed alongside a hospital order
(3) They’re punitive, so they can’t be imposed alongside a discharge (conditional or absolute)
What are the differences between the rules applicable to the imposition of fines in the CC and the mags?
(1) In both, the amount is unlimited, but the mags are bound by a standard scale of maximum fines (CC is not):
- Level 1: £200;
- Level 2: £500;
- Level 3: £1000;
- Level 4: £2500;
- Level 5: unlimited
The statute nearly always specifies, but where it does not the option is to impose a level 3 fine (£1000).
(2) If the CC imposes a fine, it must fix a term of imprisonment to serve in default
- this is so even where its sentencing powers are those of the Mags on commital
- Failure to do this does not invalidate the fine
Will the court consider A’s financial circumstances in determining the sum that they are to be fined?
Yes - the court must take this into account
What is a financial circumstances order? Who can make it? What is the consequence of failing to comply with it? What is the consequence of making a false statement?
It’s an order requiring statement of A’s assets + financial circumstances
Failure to comply:
* W/o reasonable excuse (summary conviction) → fine up to level 3
* False statement → fine up to level 4
Can the court take into account the means of the offender’s family in determining the level of the fine?
No - it’s about the offender’s means only
Should a fine be imposed that is well beyond the offender’s means?
No - this is wrong in principle
Can a custodial sentence be substituted for a fine if (1) offender cannot afford or (2) offender can pay too easily?
No! Although if the offender can pay too easily, the fine can be raised slightly
What rules govern the length of time over which fines can be paid in installments?
- Normally should be capable of being paid within 12 months
- However max time not 12 months – 2 or 3 years OK
- Exception = corporate Ds, who can have longer times for payment
What should the level of a fine reflect?
The seriousness of the offence
This is why:
- Max fine = reserved for most serious instances
- Existence of serious mitigation (e.g. G plea) should preclude max fine
Can fines be combined with a prison sentence?
Yes
What are the criteria for the imposition of a community order?
(1) Offence must be punishable with imprisonment
(2) Court must be of the opinion that the offence or combo of offences is serious enough to warrant such an order
–> in reaching this view the court must take into account all available info about the circumstances of the offence including an AF or MF
–> pre-sentence report requirements apply (see previous flashcard on this)
