Unit 3 Sentencing and non-custodial sentences in the magistrates’ court

Question 1

The 5 purposes of sentencing under s142 CJA

Answer 1

(1)      Any court dealing with an offender in respect of his offence must have regard to the following 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.

Question 2

Purpose of sentencing of Child defendants (under 18)

Answer 2

S142(2) CJA limits the scope to exclude offenders under the age of 18 at the time of conviction. Relevant provisions for children are s37 CDA 1998 which states that the principal purpose of the youth justice system ‘is to prevent offending by children and young persons’, and the statutory duty under the CYPA 1933, s. 44, to ‘have regard to the welfare of the child or young person’.

Question 3

When does 142(1) [the sentencing purposes] not apply?

Answer 3

When there is a fixed penalty. Section 142(1) does not apply where the offence is fixed by law (murder); where the sentence falls to be imposed under a statutory prescribed minimum sentence.

Question 4

Stages for deciding sentence (10)

Answer 4

1. 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)
2. Aggravating and Mitigating factors
3. Consider factors which indicate a reduction for assistance to the prosecution
4. Reduction for guilty pleas
5. Dangerousness – Sch15 CJA (is it appropriate to impose a life sentence?
6. Any special custodial sentence - Where the offence is listed in Schedule 18A of the Criminal Justice Act 2003 and the court does not impose a sentence of imprisonment for life or an extended sentence, but does impose a period of imprisonment, the term of the sentence must be equal to the aggregate of the appropriate custodial term and a further period of 1 year for which the offender is to be subject to a licence.
7. Totality principle
8. Compensation and Ancillary orders
9. Reasons
10. Consideration for time spent on bail

Question 5

How do courts assess seriousness?

Answer 5

In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused. (s143 CJA)

Question 6

How much reduction is awarded for guilty plea?

Answer 6

‘the maximum level of reduction is one-quarter’ (subject to exceptions) The reduction ‘should be decreased from one-quarter to a maximum of one-tenth on the first day of trial’, and the reduction ‘should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial’. It should be noted that in the Crown Court the one third reduction should not normally be given at the PTPH, unless the defendant has indicated his guilt in the magistrates’ court.

Question 7

The rule on a reduction for guilty plea in cases of prescribed minimum custodial sentences

Answer 7

The reduction for guilty plea must not produce a final sentence which is less than 80 per cent of the required minimum sentence.

Question 8

What must the court do if the crime was racially, religiously, homophobically (etc) motivated? (inc. disabilities)

Answer 8

The court must treat the fact that the offence was committed in any of those circumstances as an aggravating factor and must state in open court that the offence was committed in such circumstances.

Question 9

Does an offence committed against a paedophile constitute a crime against sexual orientation?

Answer 9

No. It was held in B [2013] EWCA Crim 291, [2013] 2 Cr App R (S) 69 (443) that an assault committed because the offender believed the victim to be a paedophile was not an offence aggravated by hostility towards the ‘sexual orientation (or presumed sexual orientation) of the victim’; s. 146 was not designed to cover such a case.

Question 10

What is the court’s duty to follow sentencing guidelines subject too?

Answer 10

The CAJA 2009, s. 125(5)(c), states that the duty on a court to follow sentencing guidelines is ‘subject to any rule of law as to the totality of sentences’.

Question 11

Prevalence and sentencing

Answer 11

The seriousness of an individual case should be judged on its own dimensions of harm and culpability, rather than as part of a collective social harm. It is legitimate for the overall approach to sentencing levels for particular offences to be guided by their cumulative effect. However, it would be wrong to further penalise individual offenders by increasing sentence length for committing an individual offence of that type. The sentencing guidelines already take the collective social harm into account, a judge cannot increase a sentence based on their being “too much of it going on in the area” (drug dealing).

Question 12

The Totality Principle

Answer 12

a. All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it, and is just and proportionate. That is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence.
b. It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole.

Question 13

An indication of sentence

Answer 13

Will not be given unless requested by the accused. Once an indication has been given, it is binding and remains binding on the judge who has given it, and it also binds any other judge who becomes responsible for the case. An indication may cease to be binding where guideline authority from the Court of Appeal alters the appropriate sentencing level, or where a new definitive sentencing guideline is issued by the Sentencing Council. However, an indication remains binding even where the accused subsequently absconds and falls to be sentenced also for his failure to attend.

Question 14

The power to seek an indication of sentence.

Answer 14

The accused’s advocate should not seek an indication without written authority, signed by his client, that he, the client, wishes to seek an indication.

Question 15

Goodyear – Key Case – indication of sentence

Answer 15

It is clear from Goodyear [2005] EWCA Crim 888, [2005] 2 Cr App R 20 (281) that the Court of Appeal did not envisage a process by which the judge should give some kind of preliminary indication, leading to comments on it by counsel for the Crown, with the judge then reconsidering his indication, and perhaps raising it to a higher level, with counsel for the accused then making further submissions to persuade the judge, after all, to reduce his indication. Any indication which has been given lapses if the accused does not then plead guilty and cannot later bind the court

Question 16

What must the prosecution prepare for sentencing in the crown court?

Answer 16

Prosecution counsel must prepare a ‘plea and sentence document’ which identifies the aggravating and mitigating factors of the offence and the relevant statutory provisions and sentencing guidelines.

Question 17

In what circumstances is a Newton Hearing appropriate?

Answer 17

Where an accused pleads guilty on a specific basis that the prosecution may not accept. Applies only where the dispute between prosecution and defence is ‘substantial’.

Question 18

Features of a Newton Hearing

Answer 18

1. The prosecution and defence should call any relevant evidence. Where the issue arises from facts that are within the exclusive knowledge of the accused, the defence should be willing to call him. If he does not give evidence, the judge may draw such inferences as he thinks fit, subject to any explanation put forward.
2. An adjournment for these purposes is often unnecessary.
3. The judge should direct himself on the burden and standard of proof in accordance with ordinary principles.

Question 19

Limitations of a Newton Hearing

Answer 19

14. A Newton hearing has the following limitations:
    a. some issues require a verdict from a jury, e.g., intent (see D19.81);
    b. a judge cannot make findings of fact and sentence that are inconsistent with the pleas to the counts on the indictment;
    c. where a number of persons are charged with a joint enterprise, the seriousness and context are always relevant;
    d. matters of mitigation are not normally dealt with in a Newton hearing, but where there is no evidence to support an accused’s account other than his contention, the judge is entitled to invite defence counsel to call his client;
    e. where the impact of the dispute on the eventual sentencing decision is minimal, a Newton hearing is unnecessary — the judge will rarely be concerned with minute differences about events on the periphery (see also D20.18);
    f. the judge is entitled to decline to hear evidence about disputed facts if the accused’s case is absurd or obviously untenable, but he should explain why he has reached that conclusion (see also D20.20).

Question 20

The impact of a Newton hearing on the reduction for a guilty plea

Answer 20

If issues on a Newton hearing are resolved in the accused’s favour, the credit due to him for a guilty plea should not be reduced.
If the accused is disbelieved or obliges the prosecution to call evidence from a witness causing unnecessary and inappropriate distress, and conveys to the judge that he has no insight into the consequences of his offence and no genuine remorse for it, the judge may reduce the discount for a guilty plea, particularly if it has been tendered at a very late stage.
There might be an exceptional case in which the normal entitlement to credit for a guilty plea is wholly dissipated by the Newton hearing, in which case the judge should explain his reasons.

Question 21

Burden of Proof in a Newton hearing

Answer 21

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.

Question 22

Structure of a Newton hearing

Answer 22

Once the judge has decreed that there should be a Newton hearing, the hearing itself follows normal adversarial lines. The parties are given the opportunity to call such evidence as they wish and to cross-examine the witnesses called by the other side. The roles of the parties, and the court, do require consideration.

Question 23

The general rule for taking other offences into consideration

Answer 23

It is a basic principle of sentencing that the offender should be sentenced only for those crimes of which he has been convicted and not for anything else which the court may consider him to have done.

Question 24

The exceptions to the general rule for taking other offences into consideration

Answer 24

There are three identifiable exceptions to this principle where a sentencer may properly be influenced by other offences not officially before the court. These are as follows:
A. taking into account a less serious secondary offence which has not been charged but the commission of which is implicit in, and represents an aggravating feature of, the more serious primary offence;
B. if the offender expressly asks for the other offences to be taken into consideration; and
C. if the prosecution case is that the offences on the indictment are merely samples of a continuing course of conduct and the defence accept that to be so.
This is a common practice. It is based upon convention rather than statute or common law.

Question 25

Circumstances in which a pre-sentence report MUST be obtained

Answer 25

The CJA 2003 places an obligation on the court to obtain a pre-sentence report in two circumstances.

a. Under s. 156(3)(a), the court ‘shall obtain and consider a pre-sentence report’ in determining whether a custodial sentence should be imposed. 
b. Under s. 156(3)(b), the court is required to obtain and consider a pre-sentence report before forming an opinion as to the suitability of an offender for various types of community sentence

Question 26

Pre-conditions for sentencing mentally disordered offenders

Answer 26

It is a precondition of the making of a hospital order under the Mental Health Act, that the court be satisfied on the written or oral evidence of two medical practitioners that the offender is suffering from a mental disorder within the meaning of the Act such as to warrant the making of an order. Equally, a report from at least one medical practitioner is required before a custodial sentence is passed on a mentally disordered offender.
Where a medical report is to be tendered in evidence under the provisions of the MHA requires that a copy be given to the offender’s ‘authorised person’ (normally his counsel or solicitor).

Question 27

Purpose for deferring sentencing

Answer 27

The purpose for which sentence may be deferred is to enable the court, when it does deal with the offender, to have regard to:
a. his conduct after conviction (including, where appropriate, the making by him of reparation for his offence), or (b) any change in his circumstances (s. 1(1)).
b. any change in his circumstances (s. 1(1)).
The court must fix the date to which sentence is deferred, the maximum period allowed being six months (s. 1(4)). Subject to an exception mentioned below, sentence may be deferred only once (s. 1(4)).

Question 28

Can the courts defer passing sentence on a young offender?

Answer 28

No.

Question 29

Maximum Sentence a Magistrate can impose

Answer 29

The maximum sentence that magistrates may currently impose upon an offender summarily convicted of an either-way offence, is six months’ imprisonment and/or a fine of any amount

Question 30

Can statute override the Magistrates’ maximum sentence?

Answer 30

The six-month ceiling on magistrates’ powers of imprisonment contained in s. 78(1) may be expressly excluded. Thus, if an offence-creating enactment simply provides that the maximum term on summary conviction for an offence triable either way shall be nine months’ imprisonment, the effect of s. 78(1) is to reduce the maximum to six months, but, if it provides that ‘notwithstanding anything in section 78(1) of the PCC(S)A 2000, the maximum term shall be nine months’, then s. 78(1) is overridden and the maximum is indeed nine months.

Question 31

What is the Magistrates maximum aggregate sentencing powers?

Answer 31

The maximum aggregate term that a magistrates’ court may impose on one occasion for several offences is six months, unless it is sentencing for two or more either-way offences, in which case it is 12 months. (if dealing with a breach of suspended sentence then the aggregate of the suspended term and the terms for the present offences may exceed the aggregate normally permitted.

Question 32

How much compensation can a Magistrate order?

Answer 32

Where the offender has attained the age of 18, there is no limit on the amount of compensation that a magistrates’ court may order in respect of each offence.

Question 33

Absolute Discharge

Answer 33

The power to grant an absolute discharge is available to all criminal courts whatever the age of the offender and, apart from the exceptional cases in which the PCC(S)A 2000, s. 12(1) or (1A), applies, whatever the offence committed. Its imposition may reflect the triviality of the offence, the circumstances in which it came to be prosecuted, or special factors relating to the offender. Where an offence is dealt with by way of an absolute discharge, no surcharge is payable.

Question 34

Conditional Discharge

Answer 34

The power to grant a conditional discharge is available to all criminal courts whatever the age of the offender. When a discharge is conditional, the sole condition is that the offender should commit no further offence during the period of the conditional discharge. No other condition or requirement may be inserted. The period of the conditional discharge is fixed by the court but must not exceed three years.

Question 35

When is a conditional discharge not allowed?

Answer 35

The conditional discharge cannot be used in any of the cases set out in the PCC(S) A 2000, s. 12(1) or (1A). By the CDA 1998, s. 66ZB(5) and (6), where
a. a person who has received two or more youth cautions is convicted of an offence committed within two years of the date of the last of those cautions or
b. a person who has received a youth conditional caution followed by a youth caution is convicted of an offence within two years of the date of the youth caution, the court must not deal with the offence by way of conditional discharge unless it is of the opinion that there are exceptional circumstances relating to the offence or the person that justify its doing so.
A person convicted of breaching a prohibition in a sexual harm prevention order (SHPO) cannot be dealt with by way of a conditional discharge (SOA 2003, s. 103I(4)).

Question 36

Can a discharge be combined with any other sentences or orders?

Answer 36

A discharge cannot be combined with a punitive measure for the same offence except where permitted by statute. Thus, a discharge cannot be combined with a custodial sentence, a community order or a fine.
If, however, an offender is given a discharge for one of a number of offences, the court is free to exercise its normal powers of sentence with respect to the other offences.

Question 37

Breach of a conditional order

Answer 37

A conditional discharge can be breached only by the conviction of the offender of a further offence committed during the period of the discharge (PCC(S)A 2000, s. 13(1)).
A court dealing with the breach may sentence the offender for the original offence in any manner in which it could have dealt with him if he had just been convicted before the court for that offence (s.13(6)), but the Crown Court dealing with a person conditionally discharged by a magistrates’ court is limited to the lower court’s powers (s. 13(7)). 
Sentencing for the original offence always terminates the conditional discharge itself, but any order for compensation or costs made at the time of the discharge remains valid.

Question 38

What can a fine not be combined with?

Answer 38

In general, the Crown Court can impose a fine on an offender either instead of, or in addition to, dealing with him in any other way. There are some sentences which cannot be combined with a fine. A fine cannot be combined with a hospital order, nor with a discharge when sentencing for a single offence. A fine may be combined with an immediate custodial sentence, such as where the fine is being used as a means of removing an offender’s profit from his offending.

Question 39

How many hours can be ordered in an unpaid work requirement? (min and max)

Answer 39

The number of hours of unpaid work which may be ordered by the court, must be not less than 40 and not more than 300. The work required should normally be completed within 12 months (s. 200(2)).

Question 40

What are the limits on the number of hours available to the court to impose a curfew? (per day)

Answer 40

A curfew requirement is a requirement that the offender remain at a place specified by the court for certain periods of time. These periods of time must be not less than two hours and not more than 16 hours in any given day.

Question 41

When MUST the court impose electronic monitoring?

Answer 41

Where the court makes a community order which includes a curfew requirement or an exclusion requirement, it must also impose an electronic monitoring requirement, unless the court considers it inappropriate to do so, and it may do so in respect of any other requirement. 

Question 42

Will the defendant get a warning for breach of a community order?

Answer 42

Yes. if the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a community order, the officer must give a warning describing the circumstances of the failure, stating that the failure is unacceptable, and informing the offender that if within the next 12 months he again fails to comply with any requirement of the order, he will be brought back before the court.
Provision of a probation officer means discretion can be exercised just once.

Question 43

How does the defendant’s age impact a breach of a community order?

Answer 43

The offender must be sentenced on the basis of his age when the original order was made. Any breach should either be admitted by the offender or be formally proved to the criminal standard of proof and the prosecution should be in a position to put before the court the facts of the original offence, at least in outline, as well as the facts of the breach.

Question 44

The proper approach to an order that the accused pay prosecution costs (ex p Dove)

Answer 44

In ex parte Dove (1999) 163 JP 657, the Divisional Court gave the following series of guidelines on the imposition of costs.

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 him to pay, having regard to his 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 his constitutional right to defend himself.
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 financial position, so that they can assess what he can reasonably afford to pay. Failure to make such disclosure could lead the court to draw reasonable inferences as to his 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 45

Compensation Orders

Answer 45

Where there has been no damage or loss (e.g., where a stolen article is recovered and returned undamaged), no compensation order can be made; the issue is the loss to the victim rather than the benefit to the offender.
Conversely, where there has been damage or loss to the victim, a compensation order is not precluded by the fact that the offender has made no profit from the offence. The amount of the victim’s loss should either be agreed by the offender or established by evidence.
Compensation orders are designed to be used only in clear, straightforward cases.

Question 46

Confiscation orders

Answer 46

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.
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. (only considered in the Crown Court)
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 47

Simple Cautions

Answer 47

Simple cautions (BCP 2020 D2.25 to D2.28) are available only in respect of persons who are 18 or over. Although a caution is not a criminal conviction it will be noted on the offender’s PNC record and it may be referred to in court in any future hearings (D2.28).
Normally, a person cannot be prosecuted for an offence in respect of which he has been cautioned, although he may be prosecuted if new evidence comes to light, which suggests that that the offence committed was more serious than appeared at the time the decision to offer a caution was made.
The fact that a simple caution has been administered may not preclude a private prosecution.
A simple caution can be given for an indictable only offence, but only in exceptional circumstances and with the consent of the DPP (Director of Public Prosecutions). (BCP D2.25)