UNIT 6: APPEALS + SENTENCING

Question 1

What is the purpose of the new sentencing code?

Answer 1

Code has re-written sentencing procedure with modern language and an overriding aim to bring a clear and logical structure to this area of practice

Question 2

• Section 57 of the Sentencing Act 2020 states that a court sentencing an offender aged 18 or over must have regard to the following five purposes of sentencing:

Answer 2

1. the punishment of offenders;
2. the reduction of crime (including its reduction by deterrence);
3. the reform and rehabilitation of offenders;
4. the protection of the public; and
5. the making of reparation by offenders to persons affected by their offence.
   * Regard is not needed where sentences are fixed by law or offences subject to a statutory minimum, or if the defendant is classed as a dangerous offender

Question 3

Who prepares and updates the sentencing guidelines

Answer 3

Sentencing council

Question 4

Who forms the sentencing council?

Answer 4

8 Judicial and 6 Non Judicial Members

Question 5

What must SC consider

Answer 5

o current sentencing practice
o the need to promote consistency in sentencing
o the impact of sentencing decisions on victims of crime
o the need to promote public confidence in the criminal justice system
o the cost of different sentences and their effectiveness in reducing re-offending
o the SC’s monitoring of the application of the guidelines

Question 6

Court and SC

Answer 6

• Every court has a duty to follow any relevant guidelines unless it is satisfied that it would be contrary to the interests of justice to do so.

Question 7

What is considered for seriousness

Answer 7

1. the offender’s culpability in committing the offence, and
2. any harm which the offence
3. caused,
4. was intended to cause, or
5. might foreseeably have caused

Question 8

Culpability

Answer 8

• Guidance identifies four levels of criminal culpability for sentencing purposes – in descending order of seriousness they are where the offender:
  1. has the intention to cause harm, with the highest culpability being when an offence is planned. The worse the harm intended, the greater the seriousness;
  2. is reckless as to whether harm is caused. This covers situations when the defendant appreciates that some harm would be caused but goes ahead, giving no thought to the consequences even though the extent of the risk would be obvious to most people;
  3. has knowledge of the specific risks entailed by their actions, even though the offender does not intend to cause the harm that results;
  4. is guilty of negligence.

Question 9

Harm

Answer 9

• Harm may be caused either to individuals, or to the community at large.
• The types of harm that may be caused include:
  1. physical injury
  2. sexual violation
  3. financial loss
  4. damage to health and
  5. psychological distress.

Question 10

Prevalence

Answer 10

• In exceptional circumstances, a court in a particular area may treat an offence more seriously than elsewhere
• EG if the particular type of offence is prevalent in the area and the court has before it evidence that these offences are causing harm to the community at large

Question 11

Statutory aggravating factors

Answer 11

1. Previous convictions
    court must have reasonable regard to the nature of the conviction and time that has elapsed since it
    ie similar convictions and recency
2. Offences committed whilst on bail
    particularly if D was on bail in respect of another offence at the time of the current offence
3. Racial or religious aggravation
    any racial or religious motive for committing the offence
4. Hostility based on sexual orientation or disability
    any hostility towards the victim of an offence based on that victim’s sexual orientation or any physical or mental disability

Question 12

Aggravating factors

Answer 12

3. offences that are planned or premeditated;
4. offenders operating in groups or gangs;
5. the deliberate targeting of vulnerable groups (such as the elderly or disabled victims);
6. offences committed whilst under the influence of drink or drugs;
7. the use of a weapon;
8. deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence;
9. offences involving the abuse of a position of trust;
10. offences committed against those working in the public sector or providing a service to the public;
11. in property offences, the high value (including sentimental value) of property to the victim; and
12. failure to respond to previous sentences.

Question 13

Mitigating factors

Answer 13

13. offences where the defendant has acted on impulse;
14. when the defendant has experienced a greater degree of provocation than normally expected;
15. defendants who are suffering from mental illness or physical disability;
16. if the defendant is particularly young or old (particularly in the case of young offenders who are immature and have been led astray by others);
17. the fact that the defendant played only a minor role in the offending;
18. defendants who were motivated by genuine fear; and
19. defendants who have made attempts to make reparation to their victim

Question 14

Reduction of guilty plea consideration

Answer 14

• s 73 SA: court must ‘take into account’ the stage in the proceedings at which D gave their indication of a guilty plea and the circumstances in which it was given
• Applies to ALL defendants aged 18 or over, to ALL cases regardless of the offence(s) at both MC and CC

Question 15

Is the reduction dependent on or affected by the strength of the prosecution case or whether D feels remorse?

Answer 15

No

Question 16

When will a full one-third discount on sentence be permitted

Answer 16

where a guilty plea is indicated at the ‘first stage of proceedings’

o on a guilty plea at the first hearing in the magistrates’ court;
o on a guilty plea at the first hearing in the magistrates’ court where the case is then committed for sentence to the Crown Court;
o on indication of a guilty plea in the magistrates’ court to an offence triable only on indictment, followed by a guilty plea at the first hearing in the Crown Court.

Question 17

Exception to discount rule

Answer 17

exceptions may entitle D to the full third reduction if it would have been unreasonable to expect D to indicate a guilty plea at this first hearing

Question 18

Max discount after this first stage

Answer 18

o the one-quarter discount will be awarded where the guilty plea is only first indicated at the PTPH

Question 19

When should the 1/4 discount be decreased to 1/10

Answer 19

• Reduction should be decreased from 1/4 to a maximum of 1/10 where a guilty plea is entered on the first day the trial was meant to take place (’at the door of the court’)
  o May be reduced further, even to zero, where it is entered during the course of trial

Question 20

If at magistrates’ court, when D’s case was sent to the Crown Court, is a ‘likely guilty plea’ - is a full credit 1/3 reduction possible?

Answer 20

NO

where at the magistrates’ court it is not procedurally possible for a defendant to enter a guilty plea, there must be an unequivocal indication of the defendant’s intention to plead guilty. An indication only that he is likely to plead guilty is not enough’.

Question 21

What is the totality principle

Answer 21

• The court will take into account both the offence they are being sentenced for and any associated offences
• Associated offence = offence for which D has been convicted in the same proceedings or for which they are to be sentenced at the same time, or an offence which D has asked the court to take into consideration when passing sentence

Neil is convicted of three separate offences of theft in the same proceedings. When Neil is being sentenced, the court will not look at each offence separately, but will rather assess the total extent of Neil’s offending in determining the sentence that Neil will be given. Only if the totality of Neil’s offending passes the appropriate thresholds (see below) may a custodial or community sentence be imposed by the court.

Question 22

Offences taken into consideration

Answer 22

• D’s being sentenced for one offence may ask the court to take other offences into consideration (TIC) when considering the sentence
• EG D may have committed several similar types of offence which are yet to be prosecuted, but for which they may subsequently face prosecution
  o it is in D’s interests that all matters outstanding (or potentially outstanding) are dealt with at the same time
• Common practice: police to present D with a list of additional offences for which they are under investigation and may subsequently be charged
• The offences TIC should be of a similar nature to, or less serious than, the offence(s) for which D has been convicted
• Court’s discretion on how to consider these additional offences, but typically will increase the sentence D receives, but may also add little to nothing
• Advantage:
  o for D: ‘wipe the slate clean’ because they will not subsequently be prosecuted for such offences
  o for Police: a large number of TICs improves their clear-up rates without the need to commence a fresh prosecution against D

Question 23

STEP 1 – Determining the offence 3 categories?

Answer 23

1. Category 1 offences reflect both greater harm and enhanced culpability
2. Category 2 offences reflect either greater harm or enhanced culpability
3. Category 3 offences are those involving lesser harm and a lower level of culpability
   * There is an exhaustive list of factors to determine which category will be most appropriate for the relevant offence

Question 24

What happens once the starting point is determined?

Answer 24

• Once the category is determined, the court must use the corresponding starting point sentence which will then be further shaped by the remaining steps
• NB. the starting point is UNAFFECTED by previous convictions or how D pleads etc.

Question 25

STEP 2 – Shaping the provisional sentence: starting point and category range

Answer 25

• Refer to aggravating and mitigating factors (above)
• Also must consider the relevant statutory thresholds for custody

Question 26

STEP 3 – Consider any factors which indicate a reduction in sentence, such as assisting the prosecution

Answer 26

• Court can reduce the sentence where the offender has provided assistance to the police, usually in relation to other matters

Question 27

STEP 4 – Reduction in sentence for a guilty plea

Answer 27

• NB. consider at what stage the plea was given

Question 28

STEP 5 – Imposing an extended sentence

Answer 28

circumstances as to when a court will be required to consider imposing an extended sentence
* EG where it is a ‘dangerous offender’

Question 30

STEP 6 – Totality principle

Answer 30

• Consider where an offender is being sentenced for multiple offences

Question 31

STEP 7 – Compensation and other ancillary orders

Answer 31

• Court has a duty to consider whether or not to order D to pay compensation and/or make other appropriate ancillary orders, eg confiscation, destruction, and forfeiture orders

Question 32

STEP 8 - Giving reasons

Answer 32

court must give reasons for the sentence it is imposing
* Includes explaining to D the effect of
o the sentence that has been passed, and
o non-compliance with the sentence, and
o identify the definitive sentencing guidelines that have been followed, including an explanation of why the court has imposed a lesser sentence than recommended in the guidelines if that is the case

Question 33

R v Arie Ali

Answer 33

sentencing judge erred in imposing a sentence of immediate custody for an offence of assaulting an emergency worker. The Court of Appeal reasoned that when the courts are considering sentencing an offence that crosses the threshold for a short custodial sentence, judges and magistrates can elect to suspend the sentence or impose a community order instead

courts can take into account the impact of the current prison population levels when making that decision as an exceptional factor to justify suspending a custodial sentence

Question 34

Concurrent vs consecutive sentence

Answer 34

• Relevant where the court is sentencing a D to a custodial sentence for 2 or more offences
• Separate sentences of imprisonment may be expressed by the sentencing court to be either concurrent or consecutive
• Concurrent sentence = the custodial terms are deemed to be served at the same time
• Consecutive sentence = one custodial sentence will start after the other one has finished
  o generally not imposed where matters of fact arise out of the same incident
   eg [in the below example] if wounding and theft occurred at the same time in relation to the same victim, concurrent sentences would be more likely
  o does not need to be offences arising from the same incident, ie through application of the totality principle

Question 35

Totality guideline

Answer 35

when sentencing for more than one offence, overriding principle of totality is that the overall sentence should:
1. Reflect all of the offending behaviour with reference to overall harm + culpability w/ aggravating and mitigating factors relating to the offences and those personal to the offender;
2. And be just and proportionate

Question 36

Structuring a consecutive sentence

Answer 36

usually impossible to arrive at just + proportionate sentence by adding together notional single sentences – some downward adjustment ordinarily required.

Question 37

Structuring a concurrent sentence

Answer 37

2. Concurrent: notional sentence on any single offence will not adequately reflect overall offending. Upward adjustment required + may go outside category range appropriate for a single offence.

Question 38

Fourfold approach to concurrent/consecutive sentencing?

Answer 38

The Sentencing Council recommends that the general approach should be fourfold:
*
Consider the sentence for each individual offence, referring to the relevant sentencing
guidelines.
*
Determine whether the case calls for concurrent or consecutive sentences. When
sentencing three or more offences, a combination of concurrent and consecutive
sentences may be appropriate.
*
Test the overall sentence against the requirement that the total sentence is just and
proportionate to the offending as a whole.
*
Consider and explain how the sentence is structured in a way that will be best understood
by all concerned.

Question 39

Concurrent sentence guidance

Answer 39

Concurrent sentences will ordinarily be appropriate where:
*
offences arise out of the same incident or facts;
*
there is a series of offences of the same or similar kind, especially when committed
against the same person.
Examples include:
*
a single incident of dangerous driving resulting in injuries to multiple victims
*
robbery with a weapon where the weapon has been taken into account in categorising
the robbery
*
separate counts of supplying different types of drugs of the same class as part of the
same transaction
*
repetitive small thefts from an employer.

Question 40

Consecutive sentence guidance

Answer 40

Consecutive sentences will ordinarily be appropriate where:
*
offences arise out of unrelated facts or incidents;
*
offences committed in the same incident are distinct, involving an aggravating element
that requires separate recognition;
*
offences are of the same or similar kind but the overall criminality will not sufficiently be
reflected by concurrent sentences.
Examples include:
*
where the offender commits a theft on one occasion and a common assault against a
different victim on a separate occasion
*
an attempt to pervert the course of justice in respect of another offence also charged
*
where one of the offences is a Bail Act offence such as failing to surrender
*
where the offender is convicted of threats to kill towards a complainant in the context of
an indecent assault on the same occasion, the threats to kill could be distinguished as a
separate element
*
where offences of domestic abuse or sexual offences are committed against the same
individual.

Question 41

When will a pre-sentencing report be produced?

Answer 41

Where an adult D pleads guilty and sentencing is likely to be at MC, their legal representative can ask the Probation Service to prepare a pre-sentence report before the first hearing
o If the report is produced, the court will decide whether to use it to sentence D

Question 42

When would the legal representative ask the Probation Service to prepare the report?

Answer 42

o D’s legal rep will only ask the Probation Service to prepare the report if D will:
 plead guilty to all offences charged on the full prosecution facts; and
 agree to co-operate with the Probation Service to prepare a report.

Question 43

What must the legal be satisfied about before asking the PS to prepare the report

Answer 43

 D is likely to be sentenced in the magistrates’ court;
 the offence(s) is serious enough for a community order and a pre-sentence report is likely to be necessary; and
 D understands that:
 a pre-sentence report before plea provides no indication of any sentence and that all sentencing options remain open to the court;
 the court will decide whether to consider the pre-sentence report before plea, if the Probation Service produces one; and
 the court may proceed to sentence without a pre-sentence report if the court considers a report unnecessary

Question 44

When must the sentencing court obtain the report

Answer 44

the sentencing court must obtain and consider a pre-sentence report before forming an opinion on:
 whether the custody threshold has been passed and, if it has, how long the custodial sentence should be; and
 whether the threshold for imposing a community sentence has been passed and, if it has, the requirements that should be imposed on the defendant under a generic community order.

Question 45

Is the court required to obtain a report?

Answer 45

o Court is not required to obtain a report if ‘in the circumstances, court considers it unnecessary’
 EG where a custodial sentence is inevitable because of the seriousness of the offence or where the court already has a recent pre-sentence report for that offender
 SO, s 30 requirement is not obligatory
 s 30(4): if a court imposes either a custodial or community sentence before first obtaining or considering such a report, this will not invalidate any resulting sentence

Question 46

What is a plea by mitigation

Answer 46

• Opportunity to present mitigation to the court = penultimate stage in the sentencing process
• Every D is entitled to this (r 25.16(6) CrimPR)
• One of the most frequent and important functions of defence advocates
• Plea in mitigation usually involves a speech by defence advocate, but can include calling character witnesses on behalf of D or introducing character letters to speak of D’s generally good character

Question 48

Objective of mitigation

Answer 48

persuade the court to impose the most lenient sentence which it could reasonably be expected to give

Question 49

Step 1 - likely sentence

Answer 49

o D’s solicitor may begin to identify the likely sentence, ie the starting point, to ultimately persuade the court to give a less severe sentence than this

Question 50

The offence

Answer 50

o D’s solicitor then addresses the circumstances of the offence:
 minimising the impact of aggravating factors (ie which could increase the sentence beyond the starting point)
 stressing the importance of mitigating factors

Question 51

The offender

Answer 51

defendant may have
o Factors may include:
 Age of D
 especially where D is young; court more likely to be sympathetic
 Health of D
 Drug addict or alcoholic (under the influence during the offence) - ie suggest that the sentence should help D overcome this addiction (eg may be more apt to give a generic community order incorporating drug rehabilitation or an alcohol treatment requirement)
 Long-term illness or injury may warrant court’s sympathy, mental illness at the time of the offence was committed
 Cooperation with the police/early guilty plea
 Depends on at what stage D cooperates/gives a guilty plea
 Max 1/3 reduction down to 1/10
 D’s solicitor can tell the court if D has positively assisted the police in their enquires, eg by naming other criminals or revealing location of stolen property
 A prompt confession when questioned by police is very mitigating
 Voluntary compensation
 D who voluntarily makes good the damage they caused, or compensated their victim, is likely to receive credit
 Particularly the case if D is of limited means
 Remorse
 Evidence of true remorse is effective mitigation
 Mere apology is insignificant, but the court considers positive steps D has made to tackle the problems which led them to commit the offence
 EG credit to D who has committed thefts to fund a drug habit, who has voluntarily sought treatment for their addiction
 Character
 D’s solicitor should distinguish the facts of previous convictions from the current offence and ‘explain’ the circumstances of previous offences - ie mitigate aggravating

Question 52

R v Seed

Answer 52

– absence of previous convictions
the Court of Appeal held that the absence of previous convictions was important mitigation that might make a custodial sentence inappropriate, even if the custody threshold had been crossed (see 11.7.1).

 Family circumstances
 Pre-sentence report reveals D’s personal background and family circumstances to be revealed in the plea in mitigation
 EG if D has a regular home and job, and family who will be supportive of their attempts to not re-offend in the future
 EG trouble family background could also mitigate, particularly if D is young – broken home, physical abuse, and sexual abuse could all mitigate sentence; or if family was addicted to drugs while D was young
 Effective mitigation if D’s solicitor evidences that D made a genuine attempt to overcome such a background
 Low risk of re-offending
 Pre-sentence report addresses the risk of re-offending
 Low risk should be mentioned to say it was a one-off

Question 53

4. The suggested sentence

Answer 53

o Plea in mitigation should conclude by suggesting to the court the sentence that the defence think should be imposed
o Suggestion must be realistic, ie on the lower end of possible sentences which the court will be considering
o If the sentence suggested by defence is the same sentence as recommended in the pre-sentence report, the solicitor should emphasise this point

Question 54

Custodial sentence general rule

Answer 54

• Usually court has discretion as to whether a custodial sentence should be imposed and the length of the sentence
  o Some exceptions: mandatory sentence or mandatory minimum term (eg murder)

Question 55

What is the custody threshold test

Answer 55

• Custody threshold: Where the court has a discretion whether or not to pass a custodial sentence, it must apply the threshold test set out in s 230 of the Sentencing Act 2020:
  “The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”

Question 56

What happens if the threshold is passed?

Answer 56

• Only if this threshold is passed may the court impose a custodial sentence; though does not automatically need to be imposed
  o eg a guilty plea or very strong personal mitigation might make it inappropriate for a custodial sentence

Question 57

What if the offender fails to express willingness to take part in community service order?

Answer 57

custody threshold test does not apply - ie does not need to be met - where an offender fails to express a willingness to take part in a community sentence

Question 58

How does the court determine the length of the sentence?

Answer 58

• To determine the length of the sentence, the court must apply s 231(2), that a custodial sentence:
  “must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more other offences associated with it.”
• In determining length, judge will have regard to guidelines issued by the SC and the guidelines considered by the Court of Appeal, collectively ‘Guideline Judgments Case Compendium’

Question 59

Max Mags sentence?

Answer 59

• MC maximum: 6 months
  o but 12 months for two or more either-way offences imposed in consecutive periods

Question 60

Young Adult Offender?

Answer 60

• Where an adult offender is aged between 19–21 years, any custodial sentence they receive will not be served in prison, but in a young offender institution (YOI)

Question 61

Dangerous offender sentences

Answer 61

• If D is a ‘dangerous’ offender, the sentencing court must impose one of the following sentences:
  1. automatic life imprisonment;
  2. discretionary life imprisonment; or
  3. an extended sentence of imprisonment

Question 62

Early release

Answer 62

• Adult defendants who receive a custodial sentence of up to 2 years (for offences after 1 February 2015) will be automatically released at the halfway point and then be on licence in the community to the end of the sentence
  o Released on post-sentence supervision for 12 months beginning on the day they leave custody
• Offences over 2 years usually released halfway and serve the remainder on licence in the community

Question 63

Early release exception

Answer 63

o unless classified as an ‘offender of particular concern’
 eg terrorism or child sex offences
 Can apply for parole and may be released at any time after halfway on licence subject to supervision

Question 64

When will a suspended sentence be imposed?

Answer 64

• A custodial sentence of at least 14 days but no more than two years
• The period during which the sentence is suspended is known as the ‘operational period’
• Only imposed if court initially decides the custody threshold, but then considers that particular circumstances exist which justify suspension

Question 65

Requirements which the court may impose under a suspended sentence

Answer 65

• Court will likely order D to comply during a specified period (’supervision period’) with one or more requirements falling within s 287 SA
• Supervision period must end no later than the operational period
• These are the same requirements which the court may require D to comply with when imposing a generic community order

Question 66

What counts as a breach of suspended sentence

Answer 66

• Sentence takes effect if D fails to comply with requirements imposed or, during the operational period, D commits a further offence and the court sentencing D for the ‘new’ offence effects the original sentence

Question 67

Who can deal with the breach

Answer 67

• If D is in breach and suspended sentence was imposed by MC, they may be dealt with for the breach either by MC or CC
• If D is in breach and suspended sentence was imposed by CC, breaches must be dealt at only at CC

Question 68

What must the court do if D breaches suspended sentence

Answer 68

1. order the custodial sentence originally suspended to take effect unaltered;
2. order the custodial sentence to take effect, but for a shorter period of time, and/or substitute a lesser custodial period;
3. amend the original order by imposing more onerous community requirements on the defendant; or
4. amend the original order by extending the operational period, or by extending the supervision period.

[must pick one]

Question 69

What should the court first consider to do if D breaches suspended sentence

Answer 69

• Court must make an order (a) or (b) (custodial sentence ones) unless it considered it would be unjust in the circumstances
  o EG if D is coming to the end of the supervision period having not been in breach or if, a new offence committed is a minor matter or is a completely different type of offence
• If order is made under (a) or (b), the term of imprisonment for the original offence will be consecutive to the sentence imposed for any new offence

generally, the court will activate a suspended sentence and order it to run consecutively with any additional sentence imposed for the new offence.

Question 70

Can the court fine a D for breaching suspended sentence

Answer 70

• Court can also impose a fine up to £2,500 for breaching the suspended sentence if not immediately giving a custodial sentence

Question 71

Threshold for community order

Answer 71

• s 204(2) SA sets threshold which must be reached before a court can impose such an order:
  “The court must not make a community order unless it is of the opinion that—
  1. the offence, or
  2. the combination of the offence and one or more offences associated with it,
  was serious enough to warrant the making of such an order.”

Question 73

Contents of the generic community order

Answer 73

• Court may choose various options appropriate for the case

Question 74

2. Activity requirement

Answer 74

o requires D to take part in specified activities which may be designed to help D overcome problems (eg finding work) or make reparations to the victim (eg repairing damage caused)

Question 75

1. Unpaid work requirement

Answer 75

o between 40 and 300 hours
o must be completed within 12-month period
o most common requirement attached to a GCO

Question 76

3. Programme requirement

Answer 76

o D takes part in one or more courses to address offending behaviour
o eg anger management or substance misuse

Question 77

4. Prohibited activity requirement

Answer 77

refraining

Question 78

5. Curfew requirement

Answer 78

o remain at a particular location, usually residence, during specified times
o D will be electronically monitored, aka ‘tagging’

Question 79

6. Exclusion requirement

Answer 79

o prohibits D from entering a place or places for a period not exceeding 2 years
o tagged

Question 80

7. Residence requirement

Answer 80

o live at a particular place

Question 81

8. Mental health treatment requirement

Answer 81

o D to agree to treatment from a mental health practitioner for a specified period of time

Question 82

9. Drug rehabilitation requirement

Answer 82

o D to agree to treatment to reduce or eliminate their dependency on drugs, and to submit to providing samples to determine whether they have drugs in their body
o For a period specified by the court

Question 83

10. Alcohol treatment requirement

Answer 83

o D to agree, during a time specified, to treatment to reduce or eliminate alcohol dependency

Question 84

11. Supervision requirement

Answer 84

o D to attend appointments with a member of the Probation Service
o Purpose: promote D’s rehabilitation, confront D’s offending behaviour, discuss how D might ‘manage’ their life, and monitor D’s progress
o May be imposed for up to 3 years

Question 85

12. Attendance centre requirement

Answer 85

o D to attend an attendance centre for a total of between 12 and 36 hours
o Can only be imposed on Ds who are under 25 years of age

Question 86

13. Foreign travel prohibition

Answer 86

o court can impose a prohibition on foreign travel
o outside the British Isles (UK, the Channel Islands, and the Isle of Man)

Question 87

Guidance from the Sentencing Council

Answer 87

• Three sentencing ranges (low, medium, high) within the community sentence band
• A court considering to impose the sentence must decide which band the offence falls into

Question 88

What happens if D breaches a community order?

Answer 88

• First, D in breach without reasonable excuse will receive a warning from the Probation Service supervising D’s compliance
• If, within the following 12 months, D again fails without reasonable excuse to comply:
  o the officer will report it to the court which imposed the order and
  o D will have to appear before the court

Question 89

What should the court do if satisfied that D has, without reasonable excuse, failed to comply with the requirements

Answer 89

1. amend the order so as to impose requirements on the defendant which are more onerous (for example, by increasing the amount of unpaid work the defendant is required to complete); or
2. revoke the order completely and re-sentence the defendant for the offence, but without taking into account the usual custody threshold; or
3. where the defendant has wilfully and persistently failed to comply with the order, the court may revoke the order and impose a custodial sentence. This can be done even if the original offence was not punishable by way of a custodial sentence.

Question 90

Further offences committed during a generic community order

Answer 90

• MC may either allow the original GCO to continue, or, if in the interests of justice having regard to the circumstances in which the original order was made, they may:
  1. revoke the order (this will be done if the magistrates are imposing a custodial sentence for the ‘new’ offence, since an offender in prison cannot comply with a community sentence); or
  2. revoke the order and re-sentence the defendant for the original offence as if they have just been convicted of it. If this is done, the court must have regard to the extent to which the defendant has complied with the original order.

Question 91

When will a Newton hearing be held?

Answer 91

• D may plead guilty to the charge but dispute the specific factual version of events put forward by the CPS
• If the dispute of facts may affect the sentence imposed, the court must either accept D’s version of events or allow both CPS and D to call evidence so that court can determine the true factual circumstances (Newton hearing)

Question 92

What is the basis of plea

Answer 92

prosecution and defence will seek to agree on a version of events to sentence D

Question 93

What is a basis of plea document?

Answer 93

• Basis of plea document sets out D’s factual version which they accept they are guilty of
• Purpose: remove various aggravating factors of the case which D does not accept are an accurate reflection of what actually happened

Question 94

• If the basis of plea is accepted by prosecution and sentencing judge?

Answer 94

the sentence proceeds on the version put forward by the defence

Question 95

• If basis of plea is rejected by the prosecution and the judge thinks the version put by the prosecution is sufficiently more serious than D’s version?

Answer 95

then there will be a Newton hearing

Question 96

Patently absurd plea?

Answer 96

• Sentencing judge is entitled to reject a basis of plea which they consider patently absurd
  o Judge can then take the prosecution version of events without a Newton hearing taking place
  o Sentencing is final arbiter on whether or not the basis of plea is accepted and is entitled to reject a basis even if accepted by the prosecution

Question 97

When can D appeal to the Crown Court from the Magistrates’ Court?

Answer 97

1. if they pleaded guilty, they may appeal against the sentence they received;
   G: sentence
2. if they pleaded not guilty, they may appeal against any resulting conviction and/or the sentence they received.
   NG: conviction and/or sentence

Question 98

Who hears the appeal in the Crown Court?

Answer 98

o Appeal usually heard by a recorder or circuit judge who will sit with an even number of magistrates, normally 2 but up to 4

Question 99

Does the prosecution have a right to appeal to the Crown Court?

Answer 99

o Prosecution has no rights of appeal to CC against acquittal of D, or the sentence imposed by MC

Question 100

Who can appeal to the High Court?

Answer 100

Defence AND Prosecution can appeal to High Court on a point of law by way of case stated

Question 101

Appeals against conviction?

Answer 101

o D may make an appeal on the basis that the magistrates made errors of fact and/or law
o Appeal is a full rehearing of the case (ie another trial)
o CPS and D will need to call all witnesses whose evidence they seek to rely on
o New witnesses may be called, and new or different points of law may be relied on

Question 102

Appeals against sentence?

Answer 102

o D may appeal on the basis that the sentence is excessive
o CC should carry out a full rehearing of the issues and take an independent view of what the correct sentence should be

Question 103

Procedure for appeal against conviction and or sentence

Answer 103

o D must file notice of appeal with both MC and the CPS no more than 15 business days from the MC passing the sentence
o Clerk at MC will send the notice to the relevant CC and CC will then arrange a date for the hearing

Question 104

What if D files the notice outside the 15 business days?

Answer 104

CC judge has the discretionary power to extend the time limit