Unit 3 Sentencing Principles Flashcards
What is s57 of the Sentencing Act 2020?
s. 57
(2) The court 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.
‘The court should consider which of the five purposes of sentencing it is seeking to achieve through the sentence that is imposed. More than one purpose might be relevant and the importance of each must be weighed against the particular offence and offender characteristics when determining sentence’
Section 57(3) limits the scope of s57 of the Sentencing Act 2020. What does s57 not apply to?
S57 DOES NOT APPLY TO:
- an offence in relation to which a ‘mandatory sentence requirement’ applies (see s. 399)
- in relation to a hospital order (with or without a restriction order),
- an interim hospital order,
- a hospital direction or
- a limitation direction (orders under the Mental Health Act 1983).
- in relation to an offender who is aged under 18 at the time of conviction (CDA 1998, s. 37 applies to those aged under 18)
Note: s57 of the Sentencing Act 2020 is a list of purposes that the court must have regard to when sentencing
When sentencing, what should the court do when there are no definitive sentencing guideline for the offence?
The court should take account of all of the following (if they apply):
- the statutory maximum sentence (and if appropriate minimum sentence) for the offence;
- sentencing judgments of the Court of Appeal (Criminal Division) for the offence; and
- definitive sentencing guidelines for analogous offences.
Can the court consider any draft sentencing guidelines when there are no definitive sentencing guideline for the offence?
NO!
Sentencing guidelines considerations: what must the court taken into account when sentencing an offender?
STEPS
a. seriousness and threshold
b. aggravating and mitigating factors
c. sentencing threshold and guidelines
d. TICS (offences taken into consideration)
e. dangerousness
f. prevalence
g. credit for guilty plea
h. totality principle
How is the seriousness of an offence considered?
The culpability of the offender & the harm caused by the offending.
Once a provisional sentence is reached at the court, what factors which the court take into account which may make the offence more serious/reduce the sentence?
Aggravating and mitigating factors
Once sentencing, court should take into account factors that may make the offence more serious and factors which may reduce seriousness or reflect personal mitigation.
What are some aggravating factors that the court will consider?
- previous convictions
- offences committed whilst on bail
- racial/religious aggravation
- committed offence whilst under influence of alcohol/drugs
What are some mitigating factors that the court will consider?
- dependents
- good character
- no previous convictions
Does the court take into consideration a reduction for assistance to the prosecution?
Yes.
Under section 74 of the Sentencing Code, the court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
What is section 73 of the Sentencing Code?
Reduction for guilty pleas
The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code
Is reduction for plea a separate matter from remorse and other aspects of mitigation?
YES!
In S [2022] EWCA Crim 202, the Court of Appeal said that the judge had erred in conflating the reductions for guilty plea, and for matters of personal mitigation, into a single overall reduction.
What is the maximum level of reduction in sentence for a guilty plea at the first stage of proceedings?
1/3 reduction
This is at the first hearing.
What is it reduced to after the first stage of proceedings?
1/4 reduction
This only applies after the first stage of proceeding and before any trial day.
Maximum level of reduction for guilty plea on the first day of trial
1/10 reduction
This is only on the first day of trial and before any evidence is heard!
What is the maximum level of reduction after evidence on the day of trial is heard?
The reduction ‘should normally be decreased further, even to zero.
If the words ‘G indication’ are entered in the plea box on the Better Case Management form in the magistrates’ court, does that demonstrates the defendant’s intention to pled guilty, and entitles the defendant to a full reduction?
YES
If the words ‘G indication’ are entered in the plea box on the Better Case Management form in the magistrates’ court, that demonstrates the defendant’s intention, and entitles the defendant to a full reduction (Handley [2020] EWCA Crim 361).
If the words’ ‘G likely’ or ‘G likely on a basis’ are entered in the plea box on the Better Case Management form in the magistrates’ court, does that demonstrates the defendant’s intention to pled guilty, and entitles the defendant to a full reduction?
No!
If ‘G likely’ or ‘G likely on a basis’ is entered in the box then the defendant is keeping options open, and is not entitled to 1/3 reduction(Davids [2019] EWCA Crim 553, [2019] 2 Cr App R (S) 33 (243))
Where the court is ‘satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, should a reduction be made?
YES!
1/3 reduction
Where the court is ‘satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.
Cases about guilty plea
o said (at [10]) that ‘the proper application of the guideline, and fairness to those who do indicate a guilty plea at the first stage of the proceedings, demand that the distinction be observed’. This exception is designed to be limited to cases where D genuinely cannot know whether he or she is guilty of the offence charged.
- Such an exception was identified on the facts in Markham [2017] EWCA Crim 739, [2017] 2 Cr App R (S) 30 (249),
o where D1 and D2 (both aged 14) admitted in interview that they had intended to kill the victim, but in each case it was necessary to order psychiatric reports to determine whether a partial defence of diminished responsibility might be available.
o The Court of Appeal said that the case was very unusual and must not be taken as indicating that full credit would normally be appropriate where a defence of diminished responsibility was pursued.
- By contrast, in Paddon [2021] EWCA Crim 1485,
o D pleaded guilty to robbery after his PTPH, but on appeal argued that he should have been accorded full credit because he entered his plea as soon as the contents of a psychiatric report were made available to his legal advisers.
o The Court of Appeal upheld the judge’s decision not to accord full credit. There was here no issue of fitness to plead such that a report was necessary before proper legal advice could be given. The suggested mental health issue arose from duress, but these were circumstances in which legal advice could have been given without waiting for the report.
- In Reid [2017] EWCA Crim 1523, [2018] 1 Cr App R (S) 8 (45),
o D pleaded guilty 17 days before her trial and was given a reduction of 10 per cent.
o On appeal, defence counsel submitted a series of emails purporting to show that the plea had been delayed while awaiting legal advice, but the Court of Appeal said that the emails did not show a clear decision to accept guilt, and nothing had been communicated to the prosecution or to the court. That was well short of the situation contemplated in the guideline.
- Also, in West [2019] EWCA Crim 497, [2019] 2 Cr App (S) 27 (209),
o where D was charged with robbery but pleaded guilty to assault on the first day of trial, the judge gave a discount of 10 per cent.
o The Court of Appeal upheld that decision, noting that discussions had earlier taken place between counsel as to a plea of guilty to assault, but nothing had been said to the judge and no unconditional offer to admit guilt was made.
- By contrast, in Ball [2019] EWCA Crim 1260,
o a reduction of 25 per cent should have been given where D at the PTPH had clearly indicated an intention to plead guilty, but the plea was not formally entered because the prosecution required additional time to review the terms of the indictment.
o By para. F2, ‘[i]n circumstances where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction.’ This exception differs from earlier guidance by indicating an appropriate level of adjustment, rather than simply leaving the matter to the discretion of the sentencer.
- In Beckford [2018] EWCA Crim 2997, [2019] 1 Cr App R (S) 53 (449), however,
o the Court of Appeal upheld the judge’s decision to afford no credit at all to D who had pleaded guilty on the day of trial, where a Newton hearing with witnesses was required, and D’s version of the facts was ‘roundly disbelieved’.
- In Hodgin [2020] EWCA Crim 1388, [2021] 1 Cr App R (S) 50 (363),
o the Court of Appeal said that where a Newton hearing is set down and prepared for, but does not in the event proceed, it is a matter for the judge to decide what reduction, if any, should be made to the credit to which D would otherwise have been entitled. By para. F3, ‘if an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser offence or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication … was made …’.
- The Court of Appeal in Stickells [2020] EWCA Crim 1212
o summarised the position thus (at [27]): ‘the critical question is when and in what circumstances the defendant first indicates his intention to plead guilty to the offence in question, and the mere fact that it has not been charged does not mean that full credit will be preserved until it is. The position is most clear where there is a recognized alternative to the charged offence.’
- In Hussain [2020] EWCA Crim 1514, D was charged with wounding with intent.
o There was discussion between counsel as to a potential plea to unlawful wounding, but that was unacceptable to the Crown. A month later, on the day of trial, the Crown did accept a guilty plea to the lesser offence. The Court of Appeal upheld the judge’s decision to accord only a 10 per cent reduction for plea, stating that D could have retained a greater credit if he had made an earlier ‘unequivocal indication’ of guilt to the alternative offence (as the guideline required), irrespective of the Crown’s position at that time.
- See also Bannergee [2020] EWCA Crim 909, [2020] 2 Cr App R S 55 (387),
o where D was charged with OAPA 1861, s. 18 and s. 20, offences in the alternative. At the PTPH the extent of injury to V was unclear because of late service of the medical evidence. D pleaded not guilty to both charges, but it later transpired that V’s injury was superficial, and the Crown then accepted a plea of guilty to assault occasioning actual bodily harm.The Court of Appeal said that the judge had been correct to limit the reduction to 15 per cent; at the PTPH D should have entered pleas of not guilty to the matters charged, but guilty to s. 47. The fact that the plea would not have been acceptable to the Crown at that stage was ‘beside the point and irrelevant’.
- In Stickells itself, however, the issue was more difficult. In relation to an incident of domestic violence
o D pleaded guilty at the PTPH to two of the three matters charged, namely theft and taking a conveyance. He denied an offence of false imprisonment although conceding, initially at police interview, many of the underlying facts. A week later the parties agreed that a guilty plea would be entered to a new charge of controlling and coercive behaviour, and when the case was re-listed D pleaded guilty. The Court of Appeal said that the new charge was not a straightforward alternative to false imprisonment, and covered a number of incidents over a period of time while the earlier charge related to just one incident. In all the circumstances the credit for plea should have been 25 per cent.
- Another example is Hardy [2020] EWCA Crim 398, [2020] 2 Cr App R (S) 37 (261),
o where D was charged with conspiracy to supply heroin. The defence statement included a clear admission of conspiracy to apply amphetamine. On the day of trial a count to that effect was included for the first time, and D promptly pleaded guilty to it. He was acquitted by the jury of the heroin offence. The Court of Appeal said that since D had pleaded guilty to the amphetamine offence as soon as it was put, D was entitled to a 20 per cent reduction for plea rather than the 10 per cent normally applicable on the first day of trial. The decision in West (above) was distinguished.
- The fourth exception (para. F4)
o refers to the minimum five-year sentence for certain offences involving firearms that are prohibited weapons under the SA 2020, s. 311.
o The Court of Appeal decided in Jordan [2004] EWCA Crim 3291, [2005] 2 Cr App R (S) 44 (266), that s. 51A did not permit any reduction below that minimum to reflect a guilty plea (see further E18.16).
- The fifth exception (para. F5)
o refers to the special rule set out in s. 73(3) in relation to reduction for a guilty plea where a minimum sentence requirement listed in s. 73(4) applies and the offender is aged 18 or over when convicted.
o The reduction for guilty plea must not produce a final sentence which is less than 80 per cent of the minimum sentence (and see Gray [2007] EWCA Crim 979, [2007] 2 Cr App R (S) 78 (494)).
o It is clear from Darling [2009] EWCA Crim 1610, [2010] 1 Cr App R (S) 63 (420),
that if the judge has found that it would be unjust in all the circumstances to impose the minimum sentence, the limited reduction permissible under s. 73(3) no longer operates, and the normal principles in relation to reduction for a guilty plea apply
What impact does it have on plea in the circumstances where an offender’s version of events is rejected at a Newton hearing ?
the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved.
What impact does it have on plea if an offender is convicted of a lesser or different offence from that originally charged and has earlier made an unequivocal indication of a guilty plea to this lesser/difference offence?
The court should give the level reduction appropriate to the stage when that indication was made.
Can the reduction for guilty plea must not produce a final sentence which is less than 80 per cent of the minimum sentence?
NO!
- The reduction for guilty plea must not produce a final sentence which is less than 80 per cent of the minimum sentence (and see Gray [2007] EWCA Crim 979, [2007] 2 Cr App R (S) 78 (494)).
For certain offences involving firearms that are prohibited weapons under the SA 2020, s. 311, can the reduction for guilty plea reduce the minimum five-year sentence ?
NO!
The Court of Appeal decided in Jordan [2004] EWCA Crim 3291, [2005] 2 Cr App R (S) 44 (266), that s. 51A did not permit any reduction below that minimum to reflect a guilty plea (see further E18.16).
In considering the seriousness of an offence committed while the offender was on bail, the court must:
(a) treat the fact that it was committed in those circumstances as an aggravating factor, and
(b) state in open court that the offence is so aggravated.
When offence committed on bail: is the aggravation is particularly acute where the offence committed on bail is of the same type as the offence for which bail was granted
YES!
What does Sentencing Act 2020, s. 65 refer to?
Impact of relevant previous convictions where a court is considering the seriousness of an offence
Under Sentencing Act 2020, s. 65, what must the court consider?
The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to—
a. the nature of the offence to which the relevant previous conviction relates and its relevance to the current offence, and
b. the time that has elapsed since the relevant previous conviction.
cases about previous convictions
- In Chamberlin [2017] EWCA Crim 39, [2017] 1 Cr App R (S) 46 (369),
o a case of theft from a shop by a persistent offender, the Court of Appeal said that sentencers may, in the light of previous convictions, depart from the level of sentence indicated by the sentencing guideline.
o The Court referred to the Theft guideline, including the aggravating feature of ‘relevant recent convictions [which] may justify an upward adjustment, including outside the category range’ (see Supplement, SG33-3).
o In the case of a persistent offender, with whom the range of sentencing methods have been tried and failed, and where there is no current prospect of reform or rehabilitation, punishment and deterrence come to the fore. However, it is not inevitable that the sentence must be longer than the last sentence imposed, and the sentence length must still be proportionate to the offence itself, aggravated as it is by the previous convictions.
See also Brooks [2017] EWCA Crim 1066, where Chamberlin was followed and approved. - In Fothergill [2019] EWCA Crim 2236, [2020] 2 Cr App R (S) 4 (21), where D had stolen a small sum of money from a blind busker,
o the Court of Appeal approved the judge’s decision to move up one category within the Theft guideline to reflect D’s ‘extensive previous convictions for similar offending’ while also managing to keep the sentence proportionate to the offending. - In Marshall [2021] EWCA Crim 325,
o D admitted one offence of stalking and one of witness intimidation, and was sentenced to 44 months’ imprisonment.
o The Court of Appeal upheld the sentence, saying that the judge had been entitled to increase sentence by one guideline category to reflect D’s ‘abysmal record of threats and violence against women’, and that the sentence was proportionate and just.
Definition of previous conviction
a) A previous conviction by a court in the UK; or
b) A service offence within meaning or Armed Forces act 2006; or
c) A Previous Conviction of a ‘relevant offence’ in another EU
Member State.
- But court can also consider a previous conviction by a court outside the UK if it considers it appropriate.
- A clean record, or few convictions = often regarded as a significant mitigating factor.
What does Sentencing Act 2020, s. 66 refer to?
This section applies where a court is considering the seriousness of an offence which is aggravated by
Is the seriousness of an offence which is aggravated by hostility?
Yes!
Under Sentencing Act 2020, s. 66,:
This section applies where a court is considering the seriousness of an offence which is aggravated by—
(a) racial hostility,
(b) religious hostility,
(c) hostility related to disability,
(d) hostility related to sexual orientation, or
(e) hostility related to transgender identity. This is subject to subsection (3).
Under s66(4)(a) of Sentencing Act 2020, in regards to hostility/ seriousness of an offence, the hostility demonstrated by the offender must based on what?
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
i. the victim’s membership (or presumed membership) of a racial group,
ii. the victim’s membership (or presumed membership) of a religious group,
iii. a disability (or presumed disability) of the victim,
iv. the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)
v. the victim being (or being presumed to be) transgender, or
(b) the offence was motivated (wholly or partly) by—
i. hostility towards members of a racial group based on their membership of that group,
ii. hostility towards members of a religious group based on their membership of that group,
iii. hostility towards persons who have a disability or a particular disability,
iv. hostility towards persons who are of a particular sexual orientation, or (as the case may be)
v. hostility towards persons who are transgender. (5)
Does s66 of the Sentencing Act 2020 apply to general applications of sentencing?
Yes!
This is considered in all sentencing, except racially/religiously aggravated offences
Does s66 of the Sentencing Act 2020 apply to where the court is imposing sentence for one of the racially or religiously aggravated offences?
NO!
- Section 66 of the SA 2020 is of general application in sentencing, except that so far as it relates to racial and religious hostility it does not apply where the court is imposing sentence for one of the racially or religiously aggravated offences under the CDA 1998, ss. 29 to 32 (certain aggravated assaults, aggravated criminal damage, certain aggravated public order offences, or aggravated harassment).
When sentencing, must the court mention that the offence was aggravated by reason of race or religion?
YES!
The sentencer should state in open court that the offence was aggravated by reason of race or religion and should state what the sentence would have been without the presence of the aggravating feature:
Cases about racially or religiously aggravated offences
o In McGillivray [2005] EWCA Crim 604, [2005] 2 Cr App R (S) 60 (366),
D pleaded guilty to assault occasioning actual bodily harm. The racially aggravated version of that offence had originally been charged as well, but no evidence was adduced on that count and a verdict of not guilty was entered. The judge passed a sentence of three years’ imprisonment on the basis that the assault had been racially aggravated.
The Court of Appeal said that it had not been open to the judge to sentence on that basis, since D had not been convicted of the racially aggravated form of the offence. The sentence was reduced to two years, a sentence appropriate for the basic offence.
o However, in O’Leary [2015] EWCA Crim 1306, [2016] 1 Cr App R (S) 11 (66),
the Court of Appeal upheld the decision of the judge to treat an offence of unlawful wounding as racially aggravated even though the offence of unlawful wounding has a racially aggravated form which was not charged.
The Court distinguished McGillivray by pointing out that in O’Leary there had been a contested trial during which evidence had clearly emerged as to the racial motivation behind the offending. See also E2.16.
Cases in which s. 66 (Hostility) clearly does apply
DPP v Giles [2019] EWHC 2015 (Admin), [2020] 1 Cr App R (S) 20 (156), the Divisional Court held that in circumstances where, on the prosecution version of the facts, the offence is aggravated by hostility towards V based upon one or more of the factors listed in that section, it was difficult to think of circumstances in which a higher sentence would not thereby be justified. If the presence of the aggravating factor was disputed by the defence, a Newton hearing may well be necessary to resolve the matter but, even if this is considered to be unnecessary, the sentencing court would generally be bound to hold a hearing to determine whether the relevant circumstances existed at the time of the offence so that the required statement in open court that the offence was so aggravated could be made. To decline to make that finding would frustrate the purpose of what is now the SA 2020, s. 66(2). It is submitted that the reasoning in DPP v Giles, which was a case involving hostility based upon actual or presumed sexual orientation, must apply equally to the other hostility factors listed in s. 66, including racial or religious aggravation in relation to any offence not falling within the statutory racially or religiously aggravated offences, and to other statutory aggravating factors which contain the same wording, especially E2.13 (assaults on emergency workers) and E2.15 (terrorist connection).
- An illustrative case is White [2021] EWCA Crim 1511, [2022] 4 WLR 10, where D had subjected his neighbour, a trans bisexual woman, to a long-running campaign of harassment involving abuse, intimidation and death threats. D was convicted in the magistrates’ court of harassment putting a person in fear of violence (PHA 1997, s. 4(1)), and committed for sentence. D was bi-polar, and a drug addict, but had no previous convictions. The Crown Court judge imposed a community order with a restraining order, but on an application by the Solicitor-General the Court of Appeal said that the sentence was unduly lenient. The case had been correctly categorised as 2B within the relevant guideline, but a community penalty was insufficient to mark the seriousness of the offending, aggravated as it was by the transphobic and homophobic elements. A sentence of 12 months’ imprisonment was substituted, but was suspended to reflect D’s mental illness and other mitigation.
- It was held in B [2013] EWCA Crim 291, [2013] 2 Cr App R (S) 69 (443), that an assault committed because D believed V to be a paedophile was not an offence aggravated by hostility towards the ‘sexual orientation (or presumed sexual orientation) of the victim’; what is now s. 66 was not designed to cover such a case.
What does Sentencing Act 2020, s. 69 refer to?
Terrorist Connection
What must the court do if the offence has a terrorist connection?
Sentencing Act 2020, s. 69
(2) If the offence has a terrorist connection, the court—
(a) must treat that fact as an aggravating factor, and
(b) must state in open court that the offence is so aggravated.
Sentencing Act 2020, s. 69
(3) For the purposes of this section, an offence has a terrorist connection if the offence…
(a) is, or takes place in the course of, an act of terrorism, or
(b) is committed for the purposes of terrorism. For this purpose, ‘terrorism’ has the same meaning as in the Terrorism Act 2000 (see section 1 of that Act).
Terrorist Connection
Sentencing Act 2020, s. 69(4)
(4) An offence is within this subsection if it—
(a) was committed on or after the day on which section 1 of the Counter-Terrorism and Sentencing Act 2021 came into force, (b) is punishable on indictment with imprisonment for more than 2 years, and (c) is not specified in Schedule A1.
(5) An offence is within this subsection if it—
(a) was committed before the day on which section 1 of the Counter-Terrorism and Sentencing Act 2021 came into force, and
(b) is specified in Schedule 1
By the SA 2020, s. 70, where a court is considering the seriousness of an offence under the VCRA 2006, s. 28 (using someone to mind a weapon), and when the offence was committed the offender was aged 18 or over, and the person used was not, what must the court do?
(1) the court must treat the fact that the person used was under the age of 18 as an aggravating factor, and
(2) must state in open court that the offence is so aggravated.
By the SA 2020, s. 71, where a court is considering the seriousness of an offence under the MDA 1971, s. 4(3) (supplying controlled drug etc.), and the offender was aged 18 or over when the offence was committed, if either the offence was committed on or in the vicinity of school premises or the offender used a courier who was aged under 18 at the time of the offence, what must the court do?
(1) the court must treat the fact that the person used was under the age of 18 as an aggravating factor, and
(2) must state in open court that the offence is so aggravated.
By the SA 2020, s. 72, where a court is considering the seriousness of an offence under the PSA 2016, s. 5 (supplying psychoactive substance etc.), and the offender was aged 18 or over when the offence was committed, if the offence was committed on or in the vicinity of school premises, or the offender used a courier who was aged under 18 at the time of the offence, or the offence was committed in a custodial institution, what must the court do?
(1) the court must treat the fact that the person used was under the age of 18 as an aggravating factor, and
(2) must state in open court that the offence is so aggravated.
Other Statutory Aggravating Factors/situations when the court must:
(1) treat the fact that the person used was under the age of 18 as an aggravating factor, and
(2) state in open court that the offence is so aggravated.
1) - By the SA 2020, s. 70, where a court is considering the seriousness of an offence under the VCRA 2006, s. 28 (using someone to mind a weapon), and when the offence was committed the offender was aged 18 or over, and the person used was not
(2) - By the SA 2020, s. 71, where a court is considering the seriousness of an offence under the MDA 1971, s. 4(3) (supplying controlled drug etc.), and the offender was aged 18 or over when the offence was committed, if either the offence was committed on or in the vicinity of school premises or the offender used a courier who was aged under 18 at the time of the offence
(3) - By the SA 2020, s. 72, where a court is considering the seriousness of an offence under the PSA 2016, s. 5 (supplying psychoactive substance etc.), and the offender was aged 18 or over when the offence was committed, if the offence was committed on or in the vicinity of school premises, or the offender used a courier who was aged under 18 at the time of the offence, or the offence was committed in a custodial institution
Mitigating factors - does it reflect higher or lower culpability/serious harm?
The guideline sets out a list of mitigating factors: some reflect lower
culpability on part of D; some reflect less serious harm caused by
the offence than usually expected.
What are some examples of mitigating factors?
a) A greater degree of Provocation than normally expected
b) Mental illness or disability
c) Youth or age (where it affects the responsibility of the individual Defendant)
d) the fact that the offender played only a minor role in the offence
e) Any Personal Mitigation
s166(1) CJA: sentence can consider any matters that are ‘relevant in mitigation of sentence’.
f) no previous cons/good character
Who decides the weight to be given to mitigation factors when sentencing?
The court!
The weight to be given to mitigation is a matter within the discretion of the court and, in particular, the serious nature of the offence may mean that little weight can be given to what would otherwise be regarded as significant personal mitigation.
Can the court increase a sentence due to the prevalence of such an offence?
NO!
A court MUST not increase a sentence due to the prevalence of such an offence
UNLESS it has evidence from a local Criminal Justice Board or a “Community
Impact Statement”
- The seriousness of an individual case should be judged on its own
dimensions of harm and culpability, NOT as part of a collective social
harm.
In what exceptional circumstances where local prevalence may influence
sentencing levels?
o The issue in such cases is the harm being caused to the community.
o The sentencers must have supporting evidence from an external source to
justify claims that: a particular crime is prevalent in their area and that
there is a compelling need to treat the offence more seriously than
elsewhere. E.g., evidence from a local Crim Justice Board or a ‘Community
Impact Statement’.
- The key factor = the level of harm being caused in the locality.
- Enhanced sentences are exceptional, only in response to exceptional
circumstances.
Can a judge increase sentencing on the basis of prevalence based on his own opinion eg ‘too much of this sort of thing going on in this area’?
NO!
It was not open to a judge to increase a sentence for prevalence based on the judge’s personal view that there was
There has to be evidence provided by the court by a responsible body and even then, the judge would only be entitled to treat prevalence as an aggravating factor if the judge was satisfied that the level of harm caused in the particular locality was significantly higher than that caused elsewhere.
What is the totality principle?
The definitive Guideline on ‘Totality’ states:
When sentencing for more than 1 offence = court must consider what the total sentence should be and arrive at one sentence, to reflect all the offending, which is just and proportionate.
When considering the totality principle, should the judge be adding two sentences together when sentencing for more than 1 offence?
NO!
Guidance states:
(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
When considering the totality principle, instead of adding two sentences together when sentencing for more than 1 offence, what kind of sentence should the judge consider?
Judge will consider whether consecutive or concurrent sentences are more appropriate in the circumstances (considering the offending behaviour as a whole & personal factors to the offender)
Why are victim personal statements relevant?
Victim personal statements, can be relevant; they give info re the impact
the offence had on the victim, or (where victim had died) on his surviving
close family
When must a medical report be sought?
When offender is/or appears to be suffering from mental disorder.
The SA 2020, s. 232, states that in any case where an offender is or appears to be suffering from a mental disorder, the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law.
Is medical report the same as pre-sentence report?
NO!
A medical report is distinct from a PSR, and does not
displace the need to order under a PSR under s156
What will happen if the accused is deprived of a genuine choice as his plea?
If accused was deprived of his right and pled guilty, the plea is a nullity and the conviction will be quashed on appeal
Prior to deciding whether or not to plead guilty to an offence, can D can ask court for an indication of sentence he would receive if enters G plea?
Yes!
At what stage can D can ask court for an indication of sentence he would receive if enters G plea?
Can ask for an indication either:
a. before the PTPH;
b. or at any stage of proceedings before jury return their verdict.
Can the court give an indication of sentence if not sought by an accused?
NO!
(1) A court should not give an indication of sentence unless one has been sought by the accused
Is it mandatory for the court to give an indication of sentence?
NO!
The giving of an indication is discretionary AND it remains the decision of judge
whether to give.
Is the court obliged to give reasons if court refuses to give an indication of sentence?
NO!
If court refuses or postpones an indication, no obligation to give
reasons (although the judge will PROBABLY explain his reasons for
deferral, and indicate the circumstances in which, and when, he would
be prepared to respond to a request for an indication.
Will a judge explain reasons when it defers an indication of sentence?
Probably!
If court defers an indication, judge will probably explain his
reasons; and further indicate the circumstances in which, and
when, he would be prepared to respond to a request for an indication
If the court refuses to give indication, can this be re-requested by the defence?
Yes!
The defence can make a further request for an indication at a later stage.
However, in such circumstances the court should not normally initiate the process, except where appropriate to indicate that the circumstances have changed sufficiently to permit a renewed application for an indication.
If an indication of sentence is given, is the decision binding?
YES!
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.
When indication of sentence is given, when is the decision no longer binding?
1) Sentencing guidelines are changed
2) the Court of Appeal case law alters the appropriate
sentence in the case.
3) after a reasonable opportunity to consider his or her position in the light of the indication and the accused does not plead guilty
Does indication of sentence remains binding even where D subsequently absconds and falls to be sentenced also for his failure to attend?
Yes!
An indication remains binding even where D subsequently absconds and falls to be sentenced also for his failure to attend (Davies [2015] EWCA Crim 930, [2015] 2 Cr App R (S) 57 (404)).
Does indication of sentence remains binding even where D subsequently absconds and falls to be sentenced also for his failure to attend?
Yes!
An indication remains binding even where D subsequently absconds and falls to be sentenced also for his failure to attend (Davies [2015] EWCA Crim 930, [2015] 2 Cr App R (S) 57 (404)).
Who is responsible for requesting an indication of sentence?
Defence
(The process of seeking an indication)
When seeking indication of sentence, is it needed for the defence advocate to have a written authority, sighed by client?
YES!
the defence advocate should not seek an indication without written authority, signed by his client, that the client wishes to seek an indication.
In regards to indication of sentence, what is the defence advocate personally responsible for ensuring D fully appreciates that?
(a) he or she should not plead guilty unless he or she is guilty,
(b) any sentence indication given by the court remains subject to the entitlement of the A-G (where it arises) to refer an unduly lenient sentence to the Court of Appeal,
(c) any indication given by the court reflects the situation at the time when it is given and if a guilty plea is not tendered in the light of that indication, the indication ceases to have effect, and
(d) any indication which may be given relates only to the matters about which an indication is sought.
What are the responsibilities of the prosecution regarding an indication of sentence?
The prosecution are obliged to REACT, rather than initiate, the process.
If there is no final agreement about the plea to the indictment or the basis of plea and the defence nevertheless proceed to seek an indication of sentence (which the court is minded to give) , what should prosecution do?
Prosecuting counsel should remind the court that an indication of sentence should normally not be given until the basis of the plea has been agreed, or the judge has concluded that the case can be properly dealt with without the need for a Newton hearing
When indication of sentence is sought, does the prosecution have a role is in regards to ensuring the court has all the documents relied on by the prosecution?
Prosecution should normally inquire whether the court is in possession of/has access to all the evidence relied on by the prosecution, including any personal impact victim statement and info of relevant previous convictions.
If the process in regards to indication of sentence has been properly followed, what should the prosecution draw the judge’s attention to?
If the process has been properly followed, should not normally be necessary for
prosecution counsel, before court gives indication, to do more than:
(a) draw judge’s attention to any minimum or mandatory statutory sentencing requirements; and to any definitive sentencing guidelines of the Sentencing Council/relevant guidelines cases.
(b) where it applies to remind the judge that the entitlement of the AG to refer any eventual sentencing decision as unduly lenient is not affected
When indication of sentence is sought, can counsel for prosecution say anything which may create the impression that the sentence indication has the support or approval of the Crown?
NO!
In any event, counsel should not say anything which may create the impression that the sentence indication has the support or approval of the Crown
Regarding indication of sentence, do the prosecutors have any role in any discussion in chambers on plea and sentence?
NO!
This should take place only in exceptional circumstances
What should prosecution do in discussions regarding indication of sentence?
(a) where they do take place: if necessary, prosecution advocate should remind judge of desirability of an independent record; should himself make a full note recording all decisions & comments.
Note should be made available to the prosecuting authority.
(b) where there is a discussion on plea & sentence and the prosecution advocate does not believe the circumstances are ‘exceptional’, he should remind judge of the relevant CA decisions and disassociate himself from any discussion on sentence.
(c) he should not say or do anything which might be taken to agree (expressly or impliedly) with a particular sentence;
(d) where s35 CJA applies, he should indicate that the AG may seek leave to refer any sentence as unduly lenient.
Should a hearing involving an indication of sentence taken place in private?
NO!
A hearing involving an indication of sentence should normally take place in open court with a full recording of the entire proceedings, and both sides represented, in the presence of the accused (one of the exceptions is where an accused is unaware of being terminally ill).
In complicated/difficult cases, is the court is likely to be able to give an indication of sentence?
No!
In complicated/difficult cases, court is unlikely to be able to give an indication, unless issues between prosecution & defence have been resolved
When seeking indication of sentence in complicated/difficult cases, should notice be given?
In complex cases, no less than seven days’ notice of an intention to seek an indication should normally be given in writing to the prosecution and the court.
In cases regarding seeking an indication of sentence, what happens if an application is made without notice when it should have been given?
the court may conclude that any inevitable adjournment should have been avoided and that the discount for the guilty plea should be reduced accordingly.
The fact that notice has been given, and any reference to a request for a sentence indication, or the circumstances in which it was sought, would be inadmissible in any subsequent trial.
In cases where an indication of sentence is sought, what happens to reporting restrictions?
Reporting restrictions should normally be imposed, to be lifted if and when the accused pleads or is found guilty.
Goodyear did NOT envisage a process involving judge giving some
preliminary indication, followed by comments by counsel for prosecution and
defendant making submissions, leading to judge raising/reducing his
indication.
Cases following Goodyear where an indication of sentence is sought
The Court of Appeal revisited the Goodyear procedure in two recent cases. In Almilhin [2019] EWCA Crim 220, [2019] 2 Cr App R (S) 45 (373), the Court held that a sentencing judge who had given an indication in accordance with the Goodyear procedure, was not required to further reduce the sentence to reflect personal mitigation advanced after the indication had been given; it was a matter for the judge’s discretion.
In Utton [2019] EWCA Crim 1341, [2020] 1 Cr App R (S) 7 (61), the Court repeated that a court was entitled, in an appropriate case, to resile from an indication given even after an accused had then pleaded guilty, providing that the proceedings remained fair to the accused. Moreover, if an accused did not take advantage of an indication within a reasonable period (by reference to the circumstances of the case), the accused could not later complain if the judge considered that the indication had ceased to have effect
Tells me the stages in a sentencing hearing
STAGE 1: On what basis is D being sentenced
STAGE 2: Prosecution open facts, make submissions & applications
STAGE 3: Defence Mitigate
STAGE 4: Judge passes sentence
What happens at sentencing hearing if D is found G after trial?
At conclusion of trial, court will either:
i. Pass sentence immediately or;
ii. Adjourn for Production of a PSR.
if either way offence = can also send case to CC
What happens if there are disputes about the facts following a guilty verdict?
Where D is convicted following trial and there are disputed facts, it is for the judge to form his view as to to the facts of the offence established by the evidence, and to sentence accordingly.
What happens at sentencing hearing if D pled guilty on full fact basis?
If D does not dispute the facts of the offence. at conclusion of trial, court will either:
i. Pass sentence immediately or;
ii. Adjourn for Production of a PSR.
What must the defence do if D pleds G but on different facts as alleged by prosecution?
The duty is on the Defence to Raise the Issue!
The defence should set out the basis of the plea in a written form (Tolera [1999] 1 Cr App R 29).
(written basis of plea)
Is it important for the basis of plea to be in writing?
(what the defence do if D pleads G but on different facts as alleged by prosecution)
YES!
Court may be reluctant to accept a plea on a basis unless it is written.
When should the court be informed of the written basis of plea?
(if D pleads G but on different facts as alleged by prosecution)
- ideally in advance of the hearing
- LATEST during mitigation
D must inform court that not merely that there is a dispute but that the defence wish to see it resolved in a Newton hearing.
Can the court decline hear evidence at a Newton hearing where D’s version of events is absurd or clearly unreliable?
YES!
The judge should explain why that conclusion has been reached.
What should prosecution do when they have a sight of the written basis of plea?
(if D pleads G but on different facts as alleged by prosecution)
- reflect on document
- consult and consider their position and the interests of justice.
What should the prosecution do if they agree with D’s account of the disputed facts?
(if D pleads G but on different facts as alleged by prosecution)
- Agreement should be reduced to writing and signed by both advocates
- should be available to the judge in advance of sentencing hearing
What should the prosecution do if they disagree with D’s account of the disputed facts?
(if D pleads G but on different facts as alleged by prosecution)
The areas of dispute should be identified in a document that focuses the attention of the court on the precise facts which are in dispute.
In the basis of plea, can D engage in early mitigation?
(if D pleads G but on different facts as alleged by prosecution)
NO!
This is merely about the factual basis of guilty plea that is in dispute
Can the basis of plea include assertion that G is not guilty?
NO!
The basis of plea must amount to an admission of guilty to the offence and if D maintains his innocence, his plea should be a NG one.
List some limitations of a Newton Hearing
some issues require a verdict from a jury, e.g., intent (see D19.81);
(b) a judge cannot make findings of fact and then sentence on a basis that is 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 D’s account other than D’s own assertions, the judge is entitled to invite defence counsel to call their client.
What should the Judge do in a Newton hearing in regards to the the burden and standard of proof in accordance with ordinary principles?
The Judge should self-direct, just as the jury would have been directed, on e burden and standard of proof.
Does the principles in Newton (1982) 77 Cr App R 13, apply only where the dispute between prosecution and defence is ‘substantial’ ?
Yes!
where the judge’s sentence would be the same whichever version of the facts was accepted, there is no obligation on the judge to hear evidence but a decision can be made one way or the other simply on the basis of counsel’s representations.
In a Newton Hearing, which side does the burden of proof fall on?
PROSECUTION!
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.
In a Newton Hearing, where the basic facts are not in dispute, is the prosecution obliged to call any evidence?
No!
the prosecution are not obliged to call any evidence, and the judge is then entitled to draw any appropriate inferences, provided that any findings are expressed to be in accordance with the burden and standard of proof
In a Newton hearing, what is the court’s test?
whether the dispute is ‘substantial/significant’; whether it will make a material difference
In a Newton Hearing, are the prosecution required to participate, whether or not they have material to dispute the defence account?
YES!
Prosecution are required to participate.
In a Newton Hearing, are the defence required to participate, whether or not they have material to dispute the defence account?
NO!
Defence are not required to participate.
In a Newton Hearing, can the defence refuse to give evidence?
NO!
D cannot:
- by declining to give evidence, frustrate the exercise which the judge has undertaken so as to ground a subsequent complaint that there has been no Newton hearing
In a Newton Hearing, should the Judge should wait until the accused has been examined by own counsel & prosecution before questioning him?
Yes!
This is to avoid giving the impression of having come to conclusions in advance
In a Newton Hearing, should the judge observe the directions which would have been given to the jury for their guidance?
YES!
In assessing the evidence, the judge must, as the tribunal of fact, observe the directions which would have been given to the jury for their guidance.
As established by the case of Gandy, where Newton hearing was held to determine ID evidence, what are the appropriate steps for the judge to take?
1) going through turnbull steps required for judge when directing the jury;
2) considering the the admissibility of identification evidence which breached the PACE codes of practice; and
3) considering the reliability of other aspects of the evidence
As established by the case of Gandy, where Newton hearing was held to determine ID evidence, what are the appropriate steps for the judge to take?
1) going through turnbull steps required for judge when directing the jury;
2) considering the the admissibility of identification evidence which breached the PACE codes of practice; and
3) considering the reliability of other aspects of the evidence (eg discrepancies between the contemporaneous descriptions and D’s appearance)
Does the credit for guilty plea reduce if issues on a Newton hearing are resolved in D’s favour?
NO!
If issues on a Newton hearing are resolved in D’s favour, the credit due for a guilty plea should not be reduced.
Does the credit for guilty plea reduce if D
is disbelieved on a Newton hearing ?
YES
if D is disbelieved (especially if the prosecution has been obliged to call evidence from a witness causing unnecessary and inappropriate distress), and the judge concludes that D has no insight into the consequences of the offence and no genuine remorse for it, the discount for a guilty plea may be significantly reduced, particularly if it has been tendered at a very late stage.
(could be even to zero)
Is there a Jury at the CC during a Newton hearing?
NO!
one of the few occasions that CC judge acts as both tribunal of fact & law
If D is convicted following a trial, is it for the judge or jury to form a view as to the facts of the offence established by the evidence, and to sentence accordingly?
(disputes about the facts following a verdict of guilty)
Judge!
Where D is convicted following a trial, it is for the sentencer to form a view as to the facts of the offence established by the evidence, and to sentence accordingly.
Where the offender pleads guilty, what must the prosecution do?
First stage of sentencing hearing
- Summarise the facts of the offence
DOES NOT APPLY WHEN SENTENCE HAPPENS STRAIGHT AFTER GUILTY VERDICT AT TRIAL
If the sentence occurs straight after a guilty verdict at trial, is there a need for the prosecution to remind courts of the facts?
NO!
if one of the offenders pleaded guilty in an event that there is split pleas by co-defendants, does the offender who plead guilty get sentenced straight away?
NO!
in the event of split pleas by co-defendants, the sentencing of the offender who pleaded guilty will normally be adjourned until the conclusion of the trial of the accused who pleaded not guilty
Should the prosecution seek to influence the court in favour of a heavy sentence?
NO!
the prosecution adopt a neutral attitude at the sentencing stage
List the duties of a prosecutor to remind the court/address at a sentencing hearing
a. Summarise Facts
b. any Previous Convictions court need be aware of (often, simply hands up a full document and then draws attention of court to the relevant entries).
c. any Ancillary Orders that prosecution seeks (eg costs, compensation, restraining order, confiscation of proceeds of crime, forfeiture of prohibited articles eg drugs/offensive weapons);
d. any Victim Impact Statement which has been produced (can only provide if it accords with the relevant guidelines
e. Prosecution counsel is under a general duty to assist the court to avoid appealable error. According to the standards applicable to criminal cases, this goes beyond ensuring that the judge does not exceed the court’s maximum powers and extends to ensuring the court is aware of all relevant statutory provisions, sentencing guidelines and additional guidance from the Court of Appeal
why are victim personal statement relevant?
The court is frequently provided with an account from the victim of the offence for which the offender is to be sentenced, which can then be taken into account by the court when it passes sentence.
Can the victim suggest the level/type of sentence in the victim personal statement?
NO!
In sentencing hearings, do counsels have the duty to assist the court in ensuring that no order is made which the court has no power to make?
YES
Although it is for the judge to impose a lawful sentence, due to time restrains, the judge may rely on advocates to assist him with sentencing
Which party is responsible for adducing evidence about the offender’s character and antecedents in a sentencing hearing?
Prosecution!
– After the Prosecution Summary of the Facts (or immediately after
jury’s verdict of guilty if there was a not guilty plea) -> it is responsibility
of Prosecution to adduce evidence about the offender’s character &
antecedents
- this is normally based on a written Copy of Antecedents prepared in advance
by the police.
What is a PSR (Pre-sentence report)?
“PSR” defined (s158(1) CJA) as a report which:
1. is made or submitted by an appropriate officer with a view to assisting the court in determining the most suitable method of dealing with an offender; and
- contains info as to such matters as may be prescribed by rules made by SoS.
When must a PSR be obtained?
before passing a custodial or community sentence,
S156 CJA
When does obtaining a PSR is discretionary?
- IF D IS OVER 18 = where the court is of the opinion that it is unnecessary
- IF D IS UNDER 18 = the court considers it unnecessary and in reaching that decision it has considered any existing pre-sentence report relating to the offender and takes account of the information therein
Who is in charge of preparing PSR for children under 13?
local authority social workers.
Who is in charge of preparing PSR for children aged 13-16?
Responsibility is shared between the probation service and social services, precise arrangements varying from area to area
What must the court receive if considering a sentence (hospital order or interim hospital order) pursuant to Mental Health Act 1983?
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
is it a must for the court to have sight of a report from at least one medical practitioner when passing a custodial sentence on a mentally disordered offender?
YES!
A report from at least one medical practitioner is required before a custodial sentence is passed on a mentally disordered offender
Who should have sight of a medical report that is tendered in evidence under the provisions of the Mental Health Act 1983, s. 54(3)(a) ?
Where a medical report is to be tendered in evidence under Mental Health Act, a copy must be given to the offender’s ‘authorised person’ (normally counsel or solicitor).
o If accused is unrepresented = the gist of the report should be disclosed to him although he is not entitled to a copy;
o In the case of a juvenile, the substance of the report must be disclosed to any parent or guardian present in court.
o The medical practitioners who made the report may be required to attend court for cross-examination.
What is the final stage in the sentencing process before the sentence is pronounced?
Presentation of defence mitigation.
What is the defence mitigation?
Before passing sentence the court must give the offender an opportunity to make representations and introduce evidence relevant to sentence
CrimPR 25.16(6)
During the defence mitigation, what can a D under 18 do?
Where the offender is under 18, the court may give parents, guardians or other supporting adults, if present, such an opportunity as well.
What happens during defence mitigation?
- Counsel may call witnesses to speak on offender’s good character
- character evidence through live/written evidence
Must the judge pass the sentence straight away?
NO.
- normally does
- but can adjourn briefly to consider decision
What are the purpose of sentencing that the court must have regard to in
sentencing?
1) The punishment of offenders;
2) The reduction of crime (including reduction by deterrence)
3) The reform and rehabilitation of offenders
4) The protection of the public
5) The making of reparation by offenders to persons affected by their
offence.
When does S142(1) (purpose of sentencing) does NOT apply where:
S142(1) does NOT apply where:
a. the offence is Fixed by Law (murder),
b. under various Statutory Minimum Sentences;
c. under Dangerous Offender Provisions;
d. Making a Hospital Order/interim hospital order.
e. Offender under 18 at time of conviction
Is it mandatory for the Judge to give reasons for sentencing?
YES
Section 52 of the SA 2020 (see E2.20 for the full text) creates an obligation on the judge to give reasons for, and explain the effects of, the sentence passed, save where the sentence is fixed by law or is otherwise mandatory
Judge to give reasons for sentencing?
(a) The court must explain in non-technical terms its reasons for deciding on the sentence passed.
(b) The court must explain the effect of the sentence, and the consequences of non-compliance.
How long can the court defer a sentence?
The court may defer a sentence for up to 6 months & the court must fix the date to which sentence is deferred
What is the purpose of deferring a sentence?
To enable the court to have regard to:
(a) the offender’s conduct after conviction (including, where appropriate, the offender’s making reparation for the offence), or
(b) any change in the offender’s circumstances.
Does deferment require the offender’s consent?
Yes!
Deferment requires the offender’s consent AND the court must be satisfied that exercise of the power would be in the interests of justice
What can the court dealing with the sentencing after the deferment is over do?
- exercise any power that the original court had
in the MC, what is the period for adjournment after conviction on bail and in custody?
on bail = 4 weeks
in custody = 3 weeks
What should the court do in an event of equal division of magistrates when making a sentencing decision?
In the event of an equal division, the court should adjourn under the MCA 1980, s. 10
What is the maximum sentence that magistrates can impose for a Offences Triable Either Way?
12 months’ imprisonment and/or a fine of any amount
What is the maximum sentence that magistrates can impose for Summary offences?
The maximum sentence of imprisonment (if any) for a summary offence is six months or that prescribed by the statute creating the offence, whichever is the less
What is the maximum fine that magistrates can impose for Summary offences?
whatever the offence-creating provision specifies!
Can magistrates aggregate prison terms?
YES
If MC is sentencing for several offences and imposing imprisonment for 2+
offences, MC can pass an aggregate term not exceeding 6 months
MC - maximum aggregate prison terms?
For summary, 6 months MAX
for either way offence, 12 months MAX
but can order that aggregate term to run consecutively to another sentence imposed by another court
Where magistrates have power to deal with an offender for suspected breach
of a suspended sentence, when may they make the sentence run to which terms?
they may (if they choose to active part or all of the suspended sentence) make it run consecutively to any term of imprisonment they impose for the offences that put the offender in breach.
In such a case, the aggregate of the suspended term and the terms for the present
offences may exceed the normal 12 month aggregate
What is the limit on the amount of compensation that the magistrates may order?
NO limit
- as long as D is over the age of 18.
When may a Detention in a Young Offender Institution be appropriate?
- whenan offender aged 18 to 20
Who may impose a detention and training order to a youth under the age of 18?
- a youth court
- maximum duration is 24 months (12 months’ custody and 12 months’ supervision in the community).
When may committal under the Sentencing Act 2020 be appropriate?
(1) When MC takes views that sentencing powers are inadequate
(2) the either-way matter is linked to another charge, or
(3) there is another reason for sending D to Crown Court
What happens if MC deems committal under the Sentencing Act 2020, s. 14 to be appropriate
- the magistrates’ court may commit the offender to CC
- CC will pass sentence as if convicted on indictment
When may committal under the Sentencing Act 2020, s14 be appropriate?
(1) When MC takes views that sentencing powers are inadequate
When may committal under the Sentencing Act 2020, s18 be appropriate?
- where the accused has indicated a guilty plea to an either way offence and is also sent for trial for one or more related offences, the magistrates may commit the offender to the Crown Court for sentence in respect of the either way offence to which he or she has pleaded guilty.
- two charges MUST be founded on the same facts/ form part of series of offences
When trying D for more than one offence on the same indictment, is it important for the charges to be related?
YES
- The charges MUST be founded on the same facts/ form part of series of offences
What is Committal under the Sentencing Act 2020, s. 20?
- gives power to MC to supplement a committal under the provisions listed in s. 20(1):
this includes:
- committal for sentence under ss. 14 to 19;
- committal for sentence in respect of the breach of a conditional discharge imposed by the Crown Court
- committal where the offender commits a further offence during the operational period of a suspended sentence imposed by the Crown Court
What is Committal under the Sentencing Act 2020, s. 20?
- gives power to MC to supplement a committal under the provisions listed in s. 20(1):
this includes:
- committal for sentence under ss. 14 to 19;
- committal for sentence in respect of the breach of a conditional discharge imposed by the Crown Court
-
Who can impose an absolute discharge?
- All courts
- whatever the age of the offender
apart from the exceptional cases referred to in the SA 2020, s. 80(2)(b) (offences where sentence is fixed by law or there is a mandatory minimum sentence)
What is an absolute discharge?
- No punishment at all
- there is nothing the D
must, or must not, do to
comply; - it cannot be breached;
- there are no conditions attached;
- it is ‘spent’ immediately (for purposes of Rehabilitation of Offenders Act).
- No surcharge is payable
what is an Absolute Discharge usually imposed to reflect?
- the triviality of the offence
- the circumstances in which an offender came to be Prosecuted; OR
- Special factors relating to the
offender
Can an absolute discharge be breached?
NO!
If an an offender is given an absolute discharge for one of a number of offences, can the court exercise its normal powers of sentence with respect to the other offences
YES!
- an offender is given an absolute 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
Does the wording of s. 79(4)(a) permits the combination of an absolute discharge with ‘any disqualification’?
Yes, any disqualification such as:
-driving
- disqualify a person from acting as a company director,
-
Can the court combine the discharge with a punitive measure (custody,
community order, fine)?
NO!
except where permitted by
statute
Which courts can impose a conditional discharge?
MC + CC
What is a conditional discharge?
A discharge (no actual
punishment) but with a condition attached.
What is the sole condition that can be attached to a condtional discharge?
- the offender should commit no further offence during the period of the conditional discharge
What is the max specified period for a conditional discharge?
3 years!
When can a conditional discharge not be imposed?
Can be imposed on any offence, EXCEPT
FOR:
1) Those set out in s12(1) PCC(S)A 2000
(offences where sentence is fixed by law or there is a mandatory minimum
sentence
2) Breach of a Sexual Offenders Prevention
Order (pre 8 March 2015) / Sexual Harm
Prevention (post 8 March 2015). [[these
are the same orders, they changed name]]
3) Breach of an Anti-social behaviour order
(pre 8 March 2015 name) / Criminal
behaviour order (post 8 March 2015).
YOUTH ORDERS WHERE:
(a) a person who has received 2+ youth cautions is convicted of an offence committed within 2 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 2 years of the date of the youth caution
How can a conditional discharge be breached?
only by the conviction of the offender of a further offence committed during the period of the discharge
Can another MC deal with a conditional discharge imposed by a different MC?
only with the consent of the original magistrates’ court
What happens if D is conditionally discharged (when under 18) and turns over the age of 18 and commits an offence?
Where an offender aged under 18 has
been conditionally discharged by a
MC in respect of an indictable-only
offence and has now turned 18:
- the court may resentence that offender in any way in which it could deal with the offender if he or she were the same age as when convicted
when imposing a fine, what is the amount that the MC can impose?
Fines are set on a Standard scale from Level 1 (£200) to Level 5 (unlimited).
when imposing a fine, what is the amount that the CC can impose?
Any amount with no Upper Limit.
What is a fine?
A fine is a financial penalty that requires a D to pay a certain sum of money to the court
on conviction
When imposing a fine, is the amount due immediately?
YES
- can only be paid in instalments with
agreement of the court - court can allow time for payment
When can a fine be imposed?
Can be imposed on conviction (plea or verdict) of any offence, unless
specifically prohibited by statute (e.g. an offence with a mandatory minimum
sentence)
Should the court inquire into the offender’s financial circumstances before imposing a fine?
YES
- normally fill out a means form
What is a Financial Circumstances
Order?
CC & MC can order this which formally requires a D to report their assets and financial circumstances to court within a prescribed period of time
What is the consequences of failing to comply with a financial circumstances order?
- this is an offence!
- D can be summarily convicted to a fine not exceeding level 3 (£1,000).
Can the MC make a financial circumstances order where court has
been notified under s12(4) MCA that an individual wishes to plead guilty
without appearing before the court?
YES
is a fine is an appropriate penalty where the seriousness of the offence requires an immediate custodial sentence?
NO!
- The use of a fine as a sentence, and its amount, should reflect the seriousness
of the offence, considering aggravating/mitigating factors
When should the maximum available fine be imposed?
- The imposition of the maximum available fine should be reserved for the
most serious instances of the offence.
Can the effect of a guilty plea may be to reduce a community sentence to a fine?
YES!
Where an offender had spent time on remand in custody, but then received a
fine as the sentence for the offence, should the fine be reduced accordingly?
Some credit should normally be given
for the time spent in custody.
Can the court imprison D instead of a fine, where a fine would suffice but D lacks the means?
NO!
Can the court impose a prison sentence only because the D is rich?
no!
Can the court increase the fine because D is rich?
YES!
although there must remain proportionality between the offence and fine.
When should fines normally be paid within?
within 12 months
but there are exceptions!
For corporate defendants, can the fine be payable over a substantially longer period than for an individual ?
Yes, this is possible!
the fine may be payable over a substantially longer period than for an individual (Rollco Screw and Rivet Co. [1999] 2 Cr App R (S) 436).
Can the fine be combited with other sentences/ordes?
A fine can be imposed alongside any other sentence EXCEPT for:
a) a hospital order;
b) a discharge (conditional or absolute) when sentencing for a single
offence [remember a discharge cannot be combined with a punitive measure].
Can fines be combited with improsonments?
Should be avoided.
Although there is no general prohibition, it is generally accepted as undesirable to impose a fine with imprisonment: since incarceration may well deprive the offender of the means to pay.
What is a community order?
a sentence that consists of or includes a ‘Community Order’ or a ‘Youth Rehabilitation Order’.
Can a community order be made in combination with a hospital order or guardianship order in respect of the same offence (s. 202(2))?
NO!
How many hours of unpaid work ( community order) be ordered by the court ?
Between 40 to 300 hours.
If the court makes community orders on the offender in respect of two or more offences of which the offender has been convicted on the same occasion and includes unpaid work requirements in each of them, the court may direct that the hours of work run concurrently or consecutively, but the total number of hours must not exceed 300
A community order with a single requirement of unpaid work is always a community order for 12 months
Unless revoked, a community order imposing an unpaid work requirement remains in force until the offender has worked under it for the number of hours specified
Can the time-limit be extended?
YES.
It is submitted that the effect of this provision is that a failure to complete the required number of hours within the normal 12 months places the offender in breach of the community order, and the probation service may then apply to the court either to initiate breach or to extend the 12-month period.
Before inserting an unpaid work requirement into a community order, the court must, if it thinks necessary, hear from an appropriate officer that the offender is a suitable person to perform work under the requirement and that local arrangements exist for the requirement to be carried out (para. 3(1)). The appropriate officer is an officer of the local probation board or an officer of a provider of probation services
What is a Rehabilitation Activity Requirement?
A rehabilitation activity requirement is a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both
What is the ‘relevant period’ for a rehabilitation activity requirement?
(i) in relation to a community order, the period for which the community order is in force, and
(ii) in relation to a suspended sentence, the supervision period.
Can the number of activities be determined by the court for Rehabilitation Activity Requirement?
No but the court must specify the maximum number of days the offender must complete
Examples of activities for Rehabilitation Activity Requirement?
- ‘Restorative justice’ activities
For ‘Restorative justice’ activities, the responsible officer must obtain the agreement of who?
- any person other than the offender whose co-operation is necessary to comply with the requirement
What is a Programme Requirement?
Offender must participate in an accredited programme, at a specified place, on a certain number of days
What are some examples of “programme” for the Programme Requirement?
Such programmes include those which address offending behaviour relating to anger management, domestic violence, sex offending, substance misuse and so on.
What is Prohibited Activity Requirement?
Offender required to
refrain from doing a
certain thing as defined
by the court
What can a Prohibited Activity
Requirement include?
- forbidding the offender to contact a certain person,
- may be that the offender does not possess, use or carry a firearm (para. 7(3))
Who should the court consult before inserting a prohibited activity requirement into a community sentence?
- an officer of a local probation board or an officer of a provider of probation services
What is the primary purpose of a prohibited activity requirement
To prevent or reduce the risk of further offending, so the requirement should address, and be proportionate to, that risk
What is the Curfew Requirement?
the offender must remain at a place specified by the court for certain periods of time (curfew periods)
Can the Curfew Requirement specify different locations and time for different days?
Yes
What is the min/max time for curfew requirements?
These periods of time must be not less than two hours and not more than 16 hours in any given day
For a Curfew Requirement: How long can the
requirements last for?
Must not exceed 12 months
Before inserting a curfew requirement into a community order, the court must obtain and consider information about the place(s) proposed to be specified in the order, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender
When making a curfew requirement, what is normally imposed alongside it?
It must normally also impose an electronic monitoring requirement unless the court considers it inappropriate to do so
What must the court consider when determining the duration of a curfew requirement?
Duration must be related to culpability and need!
Does the responsible officer have power to vary the time/place of the curfew requirement?
YES
only with the consent of the offender
What is an Exclusion Requirement?
prohibits an offender from entering a specified prohibited place, or places, or area (such as a specified town centre), during a period specified in the order
What is the maximum period of an Exclusion Requirement?
2 years
When making a Exclusion Requirement, what is normally imposed alongside it?
It must normally also impose an electronic monitoring requirement unless the court considers it inappropriate to do so
Can the court expel an offender from the UK by way of an exclusion requirement within a community order?
NO
this is unlawful!
What is the primary purpose of an exclusion requirement?
Prevent, or at least reduce the risk of, further offending, such a requirement should be proportionate to the risk of further offending
What is a Residence Requirement?
Offender must reside at a
place specified, for a
specified period of time.
For a Residence Requirement, who must the court consult before specifying residence at a hostel, or other institution?
Only on the recommendation of an officer of a local probation board or an officer of a provider of probation services
Does the court have to consider the home surroundings of the offender before making a residence requirement?
YES!
What is the Mental Health Treatment Requirement?
Offender must, during period(s)s specified,
undergo mental health treatment (by or under a registered medical practitioner or registered psychologist).
What must the court ensure before inserting a mental health treatment requirement?
- it must be satisfied that the mental condition of the offender is such as requires and may be susceptible to treatment
- that they are willing to undergo treatment
- that hospital order is not required
For mental health treatment requirement, where can the treatment take place?
- The in-patient treatment may take place in a hospital (but not a special hospital) or care home within the meaning of the Care Standards Act 2000.
For the mental health treatment requirement, the court must also be satisfied that arrangements have been made or can be made for the treatment to be specified in the order, and that the offender has expressed willingness to comply with such an order
If the location for the mental health treatment requirement changes, what must the registered medical practitioner or chartered psychologist do?
- must notify in writing the responsible officer in advance, and the offender must consent to any such change.
What is a Drug Rehabilitation Requirement?
It requires that, during a period specified in the order (the treatment and testing period), the offender must submit to treatment by or under the direction of a specified person having the necessary qualifications or experience and must provide samples, at such times and in such circumstances as are requested, to determine whether the offender has any drug in his or her body during that period.
What must the court ensure before imposing a drug rehabilitation requirement?
the court must be satisfied that the offender is dependent on, or has a propensity to misuse, any controlled drug (as defined by the MDA 1971, s. 2) and that the dependency or propensity is such as requires and may be susceptible to treatment
The court must also be satisfied that arrangements have been made or can be made for the proposed treatment (para. 20(3)), and that the insertion of a drug rehabilitation requirement has been recommended to the court as being suitable for the offender by an officer of a provider of probation services
Court must ensure before imposing a drug rehabilitation requirement:
- offender dependent on drugs
- arrangements made for proposed treatment
- recommended as suitable by officer of probation services
- express willingness to comply with the requirement
Is there a minimum period for the treatment and testing requirement when imposing a drug rehabilitation requirement?
NO!
Where can a drug rehabilitation requirement take place?
. It may take the form of treatment as a resident in a specified institution or place, or treatment as a non-resident
What is a Alcohol Treatment Requirement?
It requires that, during a period specified in the order, the offender must submit to treatment by or under the direction of a specified person having the necessary qualifications or experience with a view to the reduction or elimination of the offender’s dependency on alcohol
Before imposing an alcohol treatment requirement, what must the court ensure?
- offender is dependent on alcohol and that the dependency is such as requires and may be susceptible to treatment
- arrangements made for proposed treatment
- The offender must express willingness to comply with the requirement
Is there a minimum period for the treatment and testing requirement when imposing a alcohol rehabilitation requirement?
NO!
Where can a alcohol rehabilitation requirement take place?
It may take the form of treatment as a resident in a specified institution or place, or treatment as a non-resident
NOTE alcohol & drug rehabilitation requirements = practically the same info on it just drug/alcohol is diff
What is the Attendance Centre Requirement minimum/maximum?
must be not less than 12 nor more than 36 hours
must not be required to attend more than once on any single day or for more than three hours on any occasion
What is Attendance Centre Requirement?
the offender must attend at an attendance centre specified in the relevant order for a specified number of hours which must be not less than 12 nor more than 36
- ONLY AVAILABLE IF U ARE OVER THE AGE 25.
Is Attendance Centre Requirement available to all ages?
NO!
- only for offenders aged under 25 years
What must the court ensure when ordering a Attendance Centre Requirement?
- there is an attendance centre available locally
- that the attendance centre order specified is reasonably accessible to the offender
Who is responsible for informing the offender the date/time required for first attendance and subsequent hours when attending Attendance Centre Requirement?
The responsible officer
What is Electronic Monitoring Requirement?
Tag which monitor compliance with any of the other requirements in the sentence
When must the court impose a Electronic Monitoring Requirement?
When passing an order which require the electronic monitoring of the offender’s compliance
What must the court ensure when imposing a Electronic Monitoring Requirement?
- electronic monitoring arrangements are available in the local area
If there is another person (other than the
offender) whose cooperation is required to make it practicable to secure the monitoring = that other person’s consent is required.
Who can set the the periods of electronic monitoring for an Electronic Monitoring Requirement?
The periods of electronic monitoring can be specified by the court in the order, or set by the responsible officer.
What is the Electronic Monitoring Requirement be included in the order for the purposes of monitoring compliance with an alcohol abstinence and monitoring requirement?
NO!
Unless the electronic monitoring requirement is in place for the purpose of monitoring compliance with a different requirement in the order (para. 29(4) and (5)).
What is the Whereabouts Monitoring Requirement?
order the electronic monitoring of the offender’s whereabouts, otherwise than for the purpose of securing compliance with any other requirement in the order.
Can the electronic monitoring be ordered as a free-standing requirement of a community order?
yes!
through Whereabouts Monitoring Requirement?
For the Whereabouts Monitoring Requirement, te court must specify the duration of the period of electronic monitoring within the term of the order, and if there is a person, other than the offender, without whose co-operation it will not be practicable to secure the monitoring, the requirement cannot be included without that person’s consent (para. 33).
What must the court ensure when imposing a Whereabouts Monitoring Requirement?
The court must ensure that electronic monitoring arrangements are available in the local area and that the necessary provisions can be made under those arrangements (para. 35).
Who deals with the Breach of a Community Order?
- CC
- unless CC included in the community order that any breach of the order is to be dealt with by the magistrates’ court
Does the breach of a community order needs to be proven?
Breach must be admitted or proved!
if the breach is denied, who must prove the breach of a community order?
Prosecution!
-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
What must the court do if the offender has breached community order?
1) fining offender to pay a fine not exceeding £2,500;
2) By revoking the Community Order and re-sentencing for the original offence to anything that the court could have sentenced him to originally (only if MC made community order)
3) by amending the terms of the community order so as to impose more onerous requirements
What should the responsible officer do if the offender has breached community order without reasonable excuse?
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 or she again fails to comply with any requirement of the order, he or she will be brought back before the court.
What should the responsible officer do if a warning for a breach of the community order has been given and there is a further breach without reasonable excuse?
The responsible officer must refer the matter to an enforcement officer.
Must the matter come back before the court if there is a further breach after the warning has been issued?
Breach of the community order
Yes!
Does an appeal against conviction or against sentence does amount to a reasonable excuse for non-compliance with a community order?
NO!
Can the court just ignore the breach/take no action?
NO!
When the court is dealing with a breach of community order, the offender must be sentenced on the basis of his or her age when the original order was made.
In regards to breach of community order, does the court have the power to commit the offender to prison?
YES!
if the community order qualifies for special procedures for the purposes of this paragraph, by ordering the offender to be committed to prison for such period not exceeding 28 days as the court considers appropriate (but see also paragraph 13A);
Further, where the offender has wilfully and persistently breached the requirements of the community order and the court is dealing with the offender under para. 10(5)(c), the court may impose a custodial sentence (para. 10(9)). For powers to resentence generally, see the SA 2020, s. 402. For the court’s powers to take enforcement action where an order qualifies for special procedures, see E12.29.
When dealing with breach of community order, can the court extend the duration of the order for up to six months beyond the original end date even if that involves the total duration of the order exceeding three years?
YES!
But it only be exercised once!
What must the court always consider when dealing with the breach?
- must always consider the nature of the breach
- the extent of compliance with the order
- If the breach report indicated that the probation service wished to continue working with the offender, that should be given considerable weight.
Revocation of a community order
Where, on application by the offender or by probation officer, having regard to changed circumstances since the order was made, it is in the interests of justice to revoke the orde or deal with the offender for the offence in some other way.
What are some circumstances which may be suitable for revocation of a community order?
where the offender is making good
progress under the order; or responding satisfactorily to the
requirements.
Can the MC and CC revoke a community order that has expired?
no!
- you cannot revoke an order that has expired,
- even if the additional offence was committed while it was not expired
if the community order was made by the CC can the MC amend it when dealing with the revocation of the same order?
MC may:
- commit the offender in custody or release the offender on bail to appear before the Crown Court (para. 24), but if that course is taken the magistrates should ensure that the offender is also committed in respect of the new offence
Who can apply for the Revocation of Community Order?
-offender
- an officer of a provider of probation services
What powers do the MC have when dealing with a revocation of a community order that was ordered by the MC?
(a) revoke the community order, or
(b) both revoke the order and resentence the offender for the offence in respect of which the order was made.
When dealing with revocation of a community order and considering resentence , what must the court take into account?
it must take into account the extent to which the offender has complied with the requirements of the order
what powers do the CC have when dealing with a revocation of a community order?
the Crown Court may
(a) revoke the community order, or
(b) revoke it and resentence the offender for the offence in respect of which the order was made
the Crown Court may (a) revoke the community order, or (b) revoke it and resentence the offender for the offence in respect of which the order was made
- Paragraphs 16 to 21 of sch. 10 to the SA 2020 deal with various forms of amendment to requirements in a community order which may be made by an appropriate court, on application by the offender or an officer of a provider of probation services:
(a) because of a change in the offender’s residence (paras. 16 and 17), or
(b) for amendment of requirements in the order (para. 18), or
(c) to change a treatment requirement on the report of a medical practitioner (para. 19), or
(d) for amending the order by substituting a later end date than that originally specified, which may have the effect of extending the order beyond the normal maximum of three years but not so as to extend the order by more than six months from the end date originally specified (para. 20), and
(e) to extend the period of 12 months for completion of an unpaid work requirement (para. 21).
Although the Court can adjust any fine to match the defendant’s means (R v Olliver (1989), if D can afford to pay the fine if given time and so the Court is most likely to allow him that time.
