Unit 3 Sentencing Principles

Question 1

What is s57 of the Sentencing Act 2020?

Answer 1

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’

Question 2

Section 57(3) limits the scope of s57 of the Sentencing Act 2020. What does s57 not apply to?

Answer 2

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

Question 3

When sentencing, what should the court do when there are no definitive sentencing guideline for the offence?

Answer 3

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.

Question 4

Can the court consider any draft sentencing guidelines when there are no definitive sentencing guideline for the offence?

Answer 4

NO!

Question 5

Sentencing guidelines considerations: what must the court taken into account when sentencing an offender?

Answer 5

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

Question 6

How is the seriousness of an offence considered?

Answer 6

The culpability of the offender & the harm caused by the offending.

Question 7

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?

Answer 7

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.

Question 8

What are some aggravating factors that the court will consider?

Answer 8

• previous convictions
• offences committed whilst on bail
• racial/religious aggravation
• committed offence whilst under influence of alcohol/drugs

Question 9

What are some mitigating factors that the court will consider?

Answer 9

• dependents
• good character
• no previous convictions

Question 10

Does the court take into consideration a reduction for assistance to the prosecution?

Answer 10

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.

Question 11

What is section 73 of the Sentencing Code?

Answer 11

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

Question 12

Is reduction for plea a separate matter from remorse and other aspects of mitigation?

Answer 12

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.

Question 13

What is the maximum level of reduction in sentence for a guilty plea at the first stage of proceedings?

Answer 13

1/3 reduction
This is at the first hearing.

Question 14

What is it reduced to after the first stage of proceedings?

Answer 14

1/4 reduction
This only applies after the first stage of proceeding and before any trial day.

Question 15

Maximum level of reduction for guilty plea on the first day of trial

Answer 15

1/10 reduction
This is only on the first day of trial and before any evidence is heard!

Question 16

What is the maximum level of reduction after evidence on the day of trial is heard?

Answer 16

The reduction ‘should normally be decreased further, even to zero.

Question 17

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?

Answer 17

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).

Question 18

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?

Answer 18

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))

Question 19

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?

Answer 19

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.

Question 20

Cases about guilty plea

Answer 20

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

Question 21

What impact does it have on plea in the circumstances where an offender’s version of events is rejected at a Newton hearing ?

Answer 21

the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved.

Question 22

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?

Answer 22

The court should give the level reduction appropriate to the stage when that indication was made.

Question 23

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

Answer 23

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)).

Question 24

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 ?

Answer 24

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).

Question 25

In considering the seriousness of an offence committed while the offender was on bail, the court must:

Answer 25

(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.

Question 26

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

Answer 26

YES!

Question 27

What does Sentencing Act 2020, s. 65 refer to?

Answer 27

Impact of relevant previous convictions where a court is considering the seriousness of an offence

Question 28

Under Sentencing Act 2020, s. 65, what must the court consider?

Answer 28

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.

Question 29

cases about previous convictions

Answer 29

- 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.

Question 30

Definition of previous conviction

Answer 30

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.

Question 31

What does Sentencing Act 2020, s. 66 refer to?

Answer 31

This section applies where a court is considering the seriousness of an offence which is aggravated by

Question 32

Is the seriousness of an offence which is aggravated by hostility?

Answer 32

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).

Question 33

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?

Answer 33

(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)

Question 34

Does s66 of the Sentencing Act 2020 apply to general applications of sentencing?

Answer 34

Yes! This is considered in all sentencing, except racially/religiously aggravated offences

Question 35

Does s66 of the Sentencing Act 2020 apply to where the court is imposing sentence for one of the racially or religiously aggravated offences?

Answer 35

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).

Question 36

When sentencing, must the court mention that the offence was aggravated by reason of race or religion?

Answer 36

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:

Question 37

Cases about racially or religiously aggravated offences

Answer 37

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.

Question 38

Cases in which s. 66 (Hostility) clearly does apply

Answer 38

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.

Question 39

What does Sentencing Act 2020, s. 69 refer to?

Answer 39

Terrorist Connection

Question 40

What must the court do if the offence has a terrorist connection?

Answer 40

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.

Question 41

Sentencing Act 2020, s. 69 (3) For the purposes of this section, an offence has a terrorist connection if the offence...

Answer 41

(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).

Question 42

Terrorist Connection Sentencing Act 2020, s. 69(4)

Answer 42

(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

Question 43

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?

Answer 43

(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.

Question 44

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?

Answer 44

(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.

Question 45

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?

Answer 45

(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.

Question 46

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.

Answer 46

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

Question 47

Mitigating factors - does it reflect higher or lower culpability/serious harm?

Answer 47

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.

Question 48

What are some examples of mitigating factors?

Answer 48

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

Question 49

Who decides the weight to be given to mitigation factors when sentencing?

Answer 49

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.

Question 50

Can the court increase a sentence due to the prevalence of such an offence?

Answer 50

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.

Question 51

In what exceptional circumstances where local prevalence may influence sentencing levels?

Answer 51

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.

Question 52

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’?

Answer 52

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.

Question 53

What is the totality principle?

Answer 53

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.

Question 54

When considering the totality principle, should the judge be adding two sentences together when sentencing for more than 1 offence?

Answer 54

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

Question 55

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?

Answer 55

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)

Question 56

Why are victim personal statements relevant?

Answer 56

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

Question 57

When must a medical report be sought?

Answer 57

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.

Question 58

Is medical report the same as pre-sentence report?

Answer 58

NO! A medical report is distinct from a PSR, and does not displace the need to order under a PSR under s156

Question 59

What will happen if the accused is deprived of a genuine choice as his plea?

Answer 59

If accused was deprived of his right and pled guilty, the plea is a nullity and the conviction will be quashed on appeal

Question 60

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?

Answer 60

Yes!

Question 61

At what stage can D can ask court for an indication of sentence he would receive if enters G plea?

Answer 61

Can ask for an indication either: a. before the PTPH; b. or at any stage of proceedings before jury return their verdict.

Question 62

Can the court give an indication of sentence if not sought by an accused?

Answer 62

NO! (1) A court should not give an indication of sentence unless one has been sought by the accused

Question 63

Is it mandatory for the court to give an indication of sentence?

Answer 63

NO! The giving of an indication is discretionary AND it remains the decision of judge whether to give.

Question 64

Is the court obliged to give reasons if court refuses to give an indication of sentence?

Answer 64

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.

Question 65

Will a judge explain reasons when it defers an indication of sentence?

Answer 65

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

Question 66

If the court refuses to give indication, can this be re-requested by the defence?

Answer 66

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.

Question 67

If an indication of sentence is given, is the decision binding?

Answer 67

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.

Question 68

When indication of sentence is given, when is the decision no longer binding?

Answer 68

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

Question 69

Does indication of sentence remains binding even where D subsequently absconds and falls to be sentenced also for his failure to attend?

Answer 69

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)).

Question 70

Does indication of sentence remains binding even where D subsequently absconds and falls to be sentenced also for his failure to attend?

Answer 70

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)).

Question 71

Who is responsible for requesting an indication of sentence?

Answer 71

Defence (The process of seeking an indication)

Question 72

When seeking indication of sentence, is it needed for the defence advocate to have a written authority, sighed by client?

Answer 72

YES! the defence advocate should not seek an indication without written authority, signed by his client, that the client wishes to seek an indication.

Question 73

In regards to indication of sentence, what is the defence advocate personally responsible for ensuring D fully appreciates that?

Answer 73

(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.

Question 74

What are the responsibilities of the prosecution regarding an indication of sentence?

Answer 74

The prosecution are obliged to REACT, rather than initiate, the process.

Question 75

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?

Answer 75

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

Question 76

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?

Answer 76

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.

Question 77

If the process in regards to indication of sentence has been properly followed, what should the prosecution draw the judge's attention to?

Answer 77

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

Question 78

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?

Answer 78

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

Question 79

Regarding indication of sentence, do the prosecutors have any role in any discussion in chambers on plea and sentence?

Answer 79

NO! This should take place only in exceptional circumstances

Question 80

What should prosecution do in discussions regarding indication of sentence?

Answer 80

(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.

Question 81

Should a hearing involving an indication of sentence taken place in private?

Answer 81

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).

Question 82

In complicated/difficult cases, is the court is likely to be able to give an indication of sentence?

Answer 82

No! In complicated/difficult cases, court is unlikely to be able to give an indication, unless issues between prosecution & defence have been resolved

Question 83

When seeking indication of sentence in complicated/difficult cases, should notice be given?

Answer 83

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.

Question 84

In cases regarding seeking an indication of sentence, what happens if an application is made without notice when it should have been given?

Answer 84

the court may conclude that any inevitable adjournment should have been avoided and that the discount for the guilty plea should be reduced accordingly.

Question 85

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.

Question 86

In cases where an indication of sentence is sought, what happens to reporting restrictions?

Answer 86

Reporting restrictions should normally be imposed, to be lifted if and when the accused pleads or is found guilty.

Question 87

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.

Question 88

Cases following Goodyear where an indication of sentence is sought

Answer 88

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

Question 89

Tells me the stages in a sentencing hearing

Answer 89

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

Question 90

What happens at sentencing hearing if D is found G after trial?

Answer 90

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

Question 91

What happens if there are disputes about the facts following a guilty verdict?

Answer 91

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.

Question 92

What happens at sentencing hearing if D pled guilty on full fact basis?

Answer 92

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.

Question 93

What must the defence do if D pleds G but on different facts as alleged by prosecution?

Answer 93

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)

Question 94

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)

Answer 94

YES! Court may be reluctant to accept a plea on a basis unless it is written.

Question 95

When should the court be informed of the written basis of plea? (if D pleads G but on different facts as alleged by prosecution)

Answer 95

- 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.

Question 96

Can the court decline hear evidence at a Newton hearing where D’s version of events is absurd or clearly unreliable?

Answer 96

YES! The judge should explain why that conclusion has been reached.

Question 97

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)

Answer 97

- reflect on document - consult and consider their position and the interests of justice.

Question 98

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)

Answer 98

- Agreement should be reduced to writing and signed by both advocates - should be available to the judge in advance of sentencing hearing

Question 99

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)

Answer 99

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.

Question 100

In the basis of plea, can D engage in early mitigation? (if D pleads G but on different facts as alleged by prosecution)

Answer 100

NO! This is merely about the factual basis of guilty plea that is in dispute

Question 101

Can the basis of plea include assertion that G is not guilty?

Answer 101

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.

Question 102

List some limitations of a Newton Hearing

Answer 102

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.

Question 103

What should the Judge do in a Newton hearing in regards to the the burden and standard of proof in accordance with ordinary principles?

Answer 103

The Judge should self-direct, just as the jury would have been directed, on e burden and standard of proof.

Question 104

Does the principles in Newton (1982) 77 Cr App R 13, apply only where the dispute between prosecution and defence is ‘substantial’ ?

Answer 104

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.

Question 105

In a Newton Hearing, which side does the burden of proof fall on?

Answer 105

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.

Question 106

In a Newton Hearing, where the basic facts are not in dispute, is the prosecution obliged to call any evidence?

Answer 106

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

Question 107

In a Newton hearing, what is the court's test?

Answer 107

whether the dispute is ‘substantial/significant’; whether it will make a material difference

Question 108

In a Newton Hearing, are the prosecution required to participate, whether or not they have material to dispute the defence account?

Answer 108

YES! Prosecution are required to participate.

Question 109

In a Newton Hearing, are the defence required to participate, whether or not they have material to dispute the defence account?

Answer 109

NO! Defence are not required to participate.

Question 110

In a Newton Hearing, can the defence refuse to give evidence?

Answer 110

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

Question 111

In a Newton Hearing, should the Judge should wait until the accused has been examined by own counsel & prosecution before questioning him?

Answer 111

Yes! This is to avoid giving the impression of having come to conclusions in advance

Question 112

In a Newton Hearing, should the judge observe the directions which would have been given to the jury for their guidance?

Answer 112

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.

Question 113

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?

Answer 113

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

Question 114

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?

Answer 114

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)

Question 115

Does the credit for guilty plea reduce if issues on a Newton hearing are resolved in D’s favour?

Answer 115

NO! If issues on a Newton hearing are resolved in D’s favour, the credit due for a guilty plea should not be reduced.

Question 116

Does the credit for guilty plea reduce if D is disbelieved on a Newton hearing ?

Answer 116

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)

Question 117

Is there a Jury at the CC during a Newton hearing?

Answer 117

NO! one of the few occasions that CC judge acts as both tribunal of fact & law

Question 118

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)

Answer 118

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.

Question 119

Where the offender pleads guilty, what must the prosecution do? First stage of sentencing hearing

Answer 119

- Summarise the facts of the offence *DOES NOT APPLY WHEN SENTENCE HAPPENS STRAIGHT AFTER GUILTY VERDICT AT TRIAL*

Question 120

If the sentence occurs straight after a guilty verdict at trial, is there a need for the prosecution to remind courts of the facts?

Answer 120

NO!

Question 121

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?

Answer 121

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

Question 122

Should the prosecution seek to influence the court in favour of a heavy sentence?

Answer 122

NO! the prosecution adopt a neutral attitude at the sentencing stage

Question 123

List the duties of a prosecutor to remind the court/address at a sentencing hearing

Answer 123

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

Question 124

why are victim personal statement relevant?

Answer 124

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.

Question 125

Can the victim suggest the level/type of sentence in the victim personal statement?

Answer 125

NO!

Question 126

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?

Answer 126

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

Question 127

Which party is responsible for adducing evidence about the offender's character and antecedents in a sentencing hearing?

Answer 127

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.

Question 128

What is a PSR (Pre-sentence report)?

Answer 128

“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 2. contains info as to such matters as may be prescribed by rules made by SoS.

Question 129

When must a PSR be obtained?

Answer 129

before passing a custodial or community sentence, S156 CJA

Question 130

When does obtaining a PSR is discretionary?

Answer 130

- 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

Question 131

Who is in charge of preparing PSR for children under 13?

Answer 131

local authority social workers.

Question 132

Who is in charge of preparing PSR for children aged 13-16?

Answer 132

Responsibility is shared between the probation service and social services, precise arrangements varying from area to area

Question 133

What must the court receive if considering a sentence (hospital order or interim hospital order) pursuant to Mental Health Act 1983?

Answer 133

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

Question 134

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?

Answer 134

YES! A report from at least one medical practitioner is required before a custodial sentence is passed on a mentally disordered offender

Question 135

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) ?

Answer 135

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.

Question 136

What is the final stage in the sentencing process before the sentence is pronounced?

Answer 136

Presentation of defence mitigation.

Question 137

What is the defence mitigation?

Answer 137

Before passing sentence the court must give the offender an opportunity to make representations and introduce evidence relevant to sentence CrimPR 25.16(6)

Question 138

During the defence mitigation, what can a D under 18 do?

Answer 138

Where the offender is under 18, the court may give parents, guardians or other supporting adults, if present, such an opportunity as well.

Question 139

What happens during defence mitigation?

Answer 139

- Counsel may call witnesses to speak on offender's good character - character evidence through live/written evidence

Question 140

Must the judge pass the sentence straight away?

Answer 140

NO. - normally does - but can adjourn briefly to consider decision

Question 141

What are the purpose of sentencing that the court must have regard to in sentencing?

Answer 141

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.

Question 142

When does S142(1) (purpose of sentencing) does NOT apply where:

Answer 142

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

Question 143

Is it mandatory for the Judge to give reasons for sentencing?

Answer 143

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

Question 144

Judge to give reasons for sentencing?

Answer 144

(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.

Question 145

How long can the court defer a sentence?

Answer 145

The court may defer a sentence for up to 6 months & the court must fix the date to which sentence is deferred

Question 146

What is the purpose of deferring a sentence?

Answer 146

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.

Question 147

Does deferment require the offender's consent?

Answer 147

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

Question 148

What can the court dealing with the sentencing after the deferment is over do?

Answer 148

- exercise any power that the original court had

Question 149

in the MC, what is the period for adjournment after conviction on bail and in custody?

Answer 149

on bail = 4 weeks in custody = 3 weeks

Question 150

What should the court do in an event of equal division of magistrates when making a sentencing decision?

Answer 150

In the event of an equal division, the court should adjourn under the MCA 1980, s. 10

Question 151

What is the maximum sentence that magistrates can impose for a Offences Triable Either Way?

Answer 151

12 months’ imprisonment and/or a fine of any amount

Question 152

What is the maximum sentence that magistrates can impose for Summary offences?

Answer 152

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

Question 153

What is the maximum fine that magistrates can impose for Summary offences?

Answer 153

whatever the offence-creating provision specifies!

Question 154

Can magistrates aggregate prison terms?

Answer 154

YES If MC is sentencing for several offences and imposing imprisonment for 2+ offences, MC can pass an aggregate term not exceeding 6 months

Question 155

MC - maximum aggregate prison terms?

Answer 155

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

Question 156

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?

Answer 156

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

Question 157

What is the limit on the amount of compensation that the magistrates may order?

Answer 157

NO limit - as long as D is over the age of 18.

Question 158

When may a Detention in a Young Offender Institution be appropriate?

Answer 158

- whenan offender aged 18 to 20

Question 159

Who may impose a detention and training order to a youth under the age of 18?

Answer 159

- a youth court - maximum duration is 24 months (12 months’ custody and 12 months’ supervision in the community).

Question 160

When may committal under the Sentencing Act 2020 be appropriate?

Answer 160

(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

Question 161

What happens if MC deems committal under the Sentencing Act 2020, s. 14 to be appropriate

Answer 161

- the magistrates’ court may commit the offender to CC - CC will pass sentence as if convicted on indictment

Question 162

When may committal under the Sentencing Act 2020, s14 be appropriate?

Answer 162

(1) When MC takes views that sentencing powers are inadequate

Question 163

When may committal under the Sentencing Act 2020, s18 be appropriate?

Answer 163

- 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

Question 164

When trying D for more than one offence on the same indictment, is it important for the charges to be related?

Answer 164

YES - The charges MUST be founded on the same facts/ form part of series of offences

Question 165

What is Committal under the Sentencing Act 2020, s. 20?

Answer 165

- 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

Question 166

What is Committal under the Sentencing Act 2020, s. 20?

Answer 166

- 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 -

Question 167

Who can impose an absolute discharge?

Answer 167

- 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)

Question 168

What is an absolute discharge?

Answer 168

- 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

Question 169

what is an Absolute Discharge usually imposed to reflect?

Answer 169

- the triviality of the offence - the circumstances in which an offender came to be Prosecuted; OR - Special factors relating to the offender

Question 170

Can an absolute discharge be breached?

Answer 170

NO!

Question 171

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

Answer 171

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

Question 172

Does the wording of s. 79(4)(a) permits the combination of an absolute discharge with ‘any disqualification’?

Answer 172

Yes, any disqualification such as: -driving - disqualify a person from acting as a company director, -

Question 173

Can the court combine the discharge with a punitive measure (custody, community order, fine)?

Answer 173

NO! except where permitted by statute

Question 174

Which courts can impose a conditional discharge?

Answer 174

MC + CC

Question 175

What is a conditional discharge?

Answer 175

A discharge (no actual punishment) but with a condition attached.

Question 176

What is the sole condition that can be attached to a condtional discharge?

Answer 176

- the offender should commit no further offence during the period of the conditional discharge

Question 177

What is the max specified period for a conditional discharge?

Answer 177

3 years!

Question 178

When can a conditional discharge not be imposed?

Answer 178

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

Question 179

How can a conditional discharge be breached?

Answer 179

only by the conviction of the offender of a further offence committed during the period of the discharge

Question 180

Can another MC deal with a conditional discharge imposed by a different MC?

Answer 180

only with the consent of the original magistrates’ court

Question 181

What happens if D is conditionally discharged (when under 18) and turns over the age of 18 and commits an offence?

Answer 181

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

Question 182

when imposing a fine, what is the amount that the MC can impose?

Answer 182

Fines are set on a Standard scale from Level 1 (£200) to Level 5 (unlimited).

Question 183

when imposing a fine, what is the amount that the CC can impose?

Answer 183

Any amount with no Upper Limit.

Question 184

What is a fine?

Answer 184

A fine is a financial penalty that requires a D to pay a certain sum of money to the court on conviction

Question 185

When imposing a fine, is the amount due immediately?

Answer 185

YES - can only be paid in instalments with agreement of the court - court can allow time for payment

Question 186

When can a fine be imposed?

Answer 186

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)

Question 187

Should the court inquire into the offender’s financial circumstances before imposing a fine?

Answer 187

YES - normally fill out a means form

Question 188

What is a Financial Circumstances Order?

Answer 188

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

Question 189

What is the consequences of failing to comply with a financial circumstances order?

Answer 189

- this is an offence! - D can be summarily convicted to a fine not exceeding level 3 (£1,000).

Question 190

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?

Answer 190

YES

Question 191

is a fine is an appropriate penalty where the seriousness of the offence requires an immediate custodial sentence?

Answer 191

NO! - The use of a fine as a sentence, and its amount, should reflect the seriousness of the offence, considering aggravating/mitigating factors

Question 192

When should the maximum available fine be imposed?

Answer 192

- The imposition of the maximum available fine should be reserved for the most serious instances of the offence.

Question 193

Can the effect of a guilty plea may be to reduce a community sentence to a fine?

Answer 193

YES!

Question 194

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?

Answer 194

Some credit should normally be given for the time spent in custody.

Question 195

Can the court imprison D instead of a fine, where a fine would suffice but D lacks the means?

Answer 195

NO!

Question 196

Can the court impose a prison sentence only because the D is rich?

Answer 196

no!

Question 197

Can the court increase the fine because D is rich?

Answer 197

YES! although there must remain proportionality between the offence and fine.

Question 198

When should fines normally be paid within?

Answer 198

within 12 months but there are exceptions!

Question 199

For corporate defendants, can the fine be payable over a substantially longer period than for an individual ?

Answer 199

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).

Question 200

Can the fine be combited with other sentences/ordes?

Answer 200

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].

Question 201

Can fines be combited with improsonments?

Answer 201

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.

Question 202

What is a community order?

Answer 202

a sentence that consists of or includes a ‘Community Order’ or a ‘Youth Rehabilitation Order’.

Question 203

Can a community order be made in combination with a hospital order or guardianship order in respect of the same offence (s. 202(2))?

Answer 203

NO!

Question 204

How many hours of unpaid work ( community order) be ordered by the court ?

Answer 204

Between 40 to 300 hours.

Question 205

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

Question 206

A community order with a single requirement of unpaid work is always a community order for 12 months

Question 207

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

Question 208

Can the time-limit be extended?

Answer 208

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.

Question 209

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

Question 210

What is a Rehabilitation Activity Requirement?

Answer 210

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

Question 211

What is the ‘relevant period’ for a rehabilitation activity requirement?

Answer 211

(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.

Question 212

Can the number of activities be determined by the court for Rehabilitation Activity Requirement?

Answer 212

No but the court must specify the maximum number of days the offender must complete

Question 213

Examples of activities for Rehabilitation Activity Requirement?

Answer 213

- ‘Restorative justice’ activities

Question 214

For ‘Restorative justice’ activities, the responsible officer must obtain the agreement of who?

Answer 214

- any person other than the offender whose co-operation is necessary to comply with the requirement

Question 215

What is a Programme Requirement?

Answer 215

Offender must participate in an accredited programme, at a specified place, on a certain number of days

Question 216

What are some examples of “programme” for the Programme Requirement?

Answer 216

Such programmes include those which address offending behaviour relating to anger management, domestic violence, sex offending, substance misuse and so on.

Question 217

What is Prohibited Activity Requirement?

Answer 217

Offender required to refrain from doing a certain thing as defined by the court

Question 218

What can a Prohibited Activity Requirement include?

Answer 218

- forbidding the offender to contact a certain person, - may be that the offender does not possess, use or carry a firearm (para. 7(3))

Question 219

Who should the court consult before inserting a prohibited activity requirement into a community sentence?

Answer 219

- an officer of a local probation board or an officer of a provider of probation services

Question 220

What is the primary purpose of a prohibited activity requirement

Answer 220

To prevent or reduce the risk of further offending, so the requirement should address, and be proportionate to, that risk

Question 221

What is the Curfew Requirement?

Answer 221

the offender must remain at a place specified by the court for certain periods of time (curfew periods)

Question 222

Can the Curfew Requirement specify different locations and time for different days?

Answer 222

Yes

Question 223

What is the min/max time for curfew requirements?

Answer 223

These periods of time must be not less than two hours and not more than 16 hours in any given day

Question 224

For a Curfew Requirement: How long can the requirements last for?

Answer 224

Must not exceed 12 months

Question 225

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

Question 226

When making a curfew requirement, what is normally imposed alongside it?

Answer 226

It must normally also impose an electronic monitoring requirement unless the court considers it inappropriate to do so

Question 227

What must the court consider when determining the duration of a curfew requirement?

Answer 227

Duration must be related to culpability and need!

Question 228

Does the responsible officer have power to vary the time/place of the curfew requirement?

Answer 228

YES only with the consent of the offender

Question 229

What is an Exclusion Requirement?

Answer 229

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

Question 230

What is the maximum period of an Exclusion Requirement?

Answer 230

2 years

Question 231

When making a Exclusion Requirement, what is normally imposed alongside it?

Answer 231

It must normally also impose an electronic monitoring requirement unless the court considers it inappropriate to do so

Question 232

Can the court expel an offender from the UK by way of an exclusion requirement within a community order?

Answer 232

NO this is unlawful!

Question 233

What is the primary purpose of an exclusion requirement?

Answer 233

Prevent, or at least reduce the risk of, further offending, such a requirement should be proportionate to the risk of further offending

Question 234

What is a Residence Requirement?

Answer 234

Offender must reside at a place specified, for a specified period of time.

Question 235

For a Residence Requirement, who must the court consult before specifying residence at a hostel, or other institution?

Answer 235

Only on the recommendation of an officer of a local probation board or an officer of a provider of probation services

Question 236

Does the court have to consider the home surroundings of the offender before making a residence requirement?

Answer 236

YES!

Question 237

What is the Mental Health Treatment Requirement?

Answer 237

Offender must, during period(s)s specified, undergo mental health treatment (by or under a registered medical practitioner or registered psychologist).

Question 238

What must the court ensure before inserting a mental health treatment requirement?

Answer 238

- 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

Question 239

For mental health treatment requirement, where can the treatment take place?

Answer 239

- - 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.

Question 240

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

Question 241

If the location for the mental health treatment requirement changes, what must the registered medical practitioner or chartered psychologist do?

Answer 241

- must notify in writing the responsible officer in advance, and the offender must consent to any such change.

Question 242

What is a Drug Rehabilitation Requirement?

Answer 242

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.

Question 243

What must the court ensure before imposing a drug rehabilitation requirement?

Answer 243

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

Question 244

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

Question 245

Court must ensure before imposing a drug rehabilitation requirement:

Answer 245

- offender dependent on drugs - arrangements made for proposed treatment - recommended as suitable by officer of probation services - express willingness to comply with the requirement

Question 246

Is there a minimum period for the treatment and testing requirement when imposing a drug rehabilitation requirement?

Answer 246

NO!

Question 247

Where can a drug rehabilitation requirement take place?

Answer 247

. It may take the form of treatment as a resident in a specified institution or place, or treatment as a non-resident

Question 248

What is a Alcohol Treatment Requirement?

Answer 248

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

Question 249

Before imposing an alcohol treatment requirement, what must the court ensure?

Answer 249

- 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

Question 250

Is there a minimum period for the treatment and testing requirement when imposing a alcohol rehabilitation requirement?

Answer 250

NO!

Question 251

Where can a alcohol rehabilitation requirement take place?

Answer 251

It may take the form of treatment as a resident in a specified institution or place, or treatment as a non-resident

Question 252

NOTE alcohol & drug rehabilitation requirements = practically the same info on it just drug/alcohol is diff

Question 253

What is the Attendance Centre Requirement minimum/maximum?

Answer 253

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

Question 254

What is Attendance Centre Requirement?

Answer 254

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.

Question 255

Is Attendance Centre Requirement available to all ages?

Answer 255

NO! - only for offenders aged under 25 years

Question 256

What must the court ensure when ordering a Attendance Centre Requirement?

Answer 256

- there is an attendance centre available locally - that the attendance centre order specified is reasonably accessible to the offender

Question 257

Who is responsible for informing the offender the date/time required for first attendance and subsequent hours when attending Attendance Centre Requirement?

Answer 257

The responsible officer

Question 258

What is Electronic Monitoring Requirement?

Answer 258

Tag which monitor compliance with any of the other requirements in the sentence

Question 259

When must the court impose a Electronic Monitoring Requirement?

Answer 259

When passing an order which require the electronic monitoring of the offender’s compliance

Question 260

What must the court ensure when imposing a Electronic Monitoring Requirement?

Answer 260

- electronic monitoring arrangements are available in the local area

Question 261

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.

Question 262

Who can set the the periods of electronic monitoring for an Electronic Monitoring Requirement?

Answer 262

The periods of electronic monitoring can be specified by the court in the order, or set by the responsible officer.

Question 263

What is the Electronic Monitoring Requirement be included in the order for the purposes of monitoring compliance with an alcohol abstinence and monitoring requirement?

Answer 263

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)).

Question 264

What is the Whereabouts Monitoring Requirement?

Answer 264

order the electronic monitoring of the offender’s whereabouts, otherwise than for the purpose of securing compliance with any other requirement in the order.

Question 265

Can the electronic monitoring be ordered as a free-standing requirement of a community order?

Answer 265

yes! through Whereabouts Monitoring Requirement?

Question 266

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).

Question 267

What must the court ensure when imposing a Whereabouts Monitoring Requirement?

Answer 267

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).

Question 268

Who deals with the Breach of a Community Order?

Answer 268

- CC - unless CC included in the community order that any breach of the order is to be dealt with by the magistrates’ court

Question 269

Does the breach of a community order needs to be proven?

Answer 269

Breach must be admitted or proved!

Question 270

if the breach is denied, who must prove the breach of a community order?

Answer 270

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

Question 271

What must the court do if the offender has breached community order?

Answer 271

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

Question 272

What should the responsible officer do if the offender has breached community order without reasonable excuse?

Answer 272

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.

Question 273

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?

Answer 273

The responsible officer must refer the matter to an enforcement officer.

Question 274

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

Answer 274

Yes!

Question 275

Does an appeal against conviction or against sentence does amount to a reasonable excuse for non-compliance with a community order?

Answer 275

NO!

Question 276

Can the court just ignore the breach/take no action?

Answer 276

NO!

Question 277

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.

Question 278

In regards to breach of community order, does the court have the power to commit the offender to prison?

Answer 278

YES!

Question 279

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);

Question 280

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.

Question 281

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?

Answer 281

YES! But it only be exercised once!

Question 282

What must the court always consider when dealing with the breach?

Answer 282

- 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.

Question 283

Revocation of a community order

Answer 283

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.

Question 284

What are some circumstances which may be suitable for revocation of a community order?

Answer 284

where the offender is making good progress under the order; or responding satisfactorily to the requirements.

Question 285

Can the MC and CC revoke a community order that has expired?

Answer 285

no! - you cannot revoke an order that has expired, - even if the additional offence was committed while it was not expired

Question 286

if the community order was made by the CC can the MC amend it when dealing with the revocation of the same order?

Answer 286

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

Question 287

Who can apply for the Revocation of Community Order?

Answer 287

-offender - an officer of a provider of probation services

Question 288

What powers do the MC have when dealing with a revocation of a community order that was ordered by the MC?

Answer 288

(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.

Question 289

When dealing with revocation of a community order and considering resentence , what must the court take into account?

Answer 289

it must take into account the extent to which the offender has complied with the requirements of the order

Question 290

what powers do the CC have when dealing with a revocation of a community order?

Answer 290

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

Question 291

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

Answer 291

- 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).

Question 292

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.