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)
