Unit 6 – Sentencing

Question 1

What are the 5 purposes of sentencing?

Answer 1

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.

– Court does not need to regard these if the sentence is fixed by law.

Question 2

What is the principle of seriousness?

Answer 2

Concept of “seriousness” is a key aspect to be considered by a sentencing court.

S 63 Sentencing Act 2020 – requires that a court must consider:

(a) Culpability – The offender’s culpability in committing the offence, and

(b) Harm – Any harm which the offence

• Caused,
• Was intended to cause, or
• Might foreseeably have caused.

Question 3

“culpability”

Answer 3

• Four levels of criminal culpability for sentencing purposes.
• In descending order of seriousness, the four levels are where the offender:

(a) Intention – 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;

(b) Recklessness – 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;

(c) Knowledge – Has knowledge of the specific risks entailed by their actions, even though the offender does not intend to cause the harm that results;

(d) Negligence – Is guilty of negligence.

Question 4

What is the principle of prevalence?

Answer 4

• Courts should pass the same sentence for the same type of offence.

 In exceptional circumstances, however, a court in a particular area may treat an offence more seriously than elsewhere.

 This can occur 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 5

In determining seriousness, what are the statutory aggravating factors?

Answer 5

1) previous convictions
2) Offences committed while on bail
3) racial or religious aggravation
4) Hostility based on sexual orientation

Question 6

What are the other aggravating factors?

Answer 6

List of aggravating factors:

(a) Offences that are planned / premeditated;

(b) Offenders operating in groups or gangs;

(c) The deliberate targeting of vulnerable groups (e.g., elderly / disabled victims);

(d) Offences committed whilst under the influence of drink or drugs;

(e) The use of a weapon;

(f) Deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence;

(g) Offences involving the abuse of a position of trust;

(h) Offences committed against those working in the public sector or providing a service to the public;

(i) In property offences, the high value (including sentimental value) of property to the victim; and

(j) Failure to respond to previous sentences.

Question 7

What are the mitigating factors?

Answer 7

(a) Offences where the defendant has acted on impulse;

(b) When D has experienced a greater degree of provocation than is normally expected;

(c) Defendants who are suffering from mental illness or physical disability;

(d) If D is particularly young or old (i.e., young offenders who are immature and have been led astray by others).

(e) The fact that D played only a minor role in the offending;

(f) Defendants who were motivated by genuine fear; and

(g) Defendants who have made attempts to make reparation to their victim.

Question 8

Does a reduction in sentence for a guilty plea apply in both crown and magistrates court?

Answer 8

Yes.

Question 9

Full reduction (1/3 reduction)

Answer 9

Full 1/3 discount on sentence is available where:

• A guilty plea is indicated at the ‘first stage of proceedings’. This will be:
• On a guilty plea at the first hearing in the magistrates’ court;
• On a guilty plea at the first hearing in the magistrates’ court where the case is then committed for sentence to the Crown Court;
• 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.

Note – Where it would have been unreasonable for D to indicate guilty plea at first hearing, D may still be entitled to this full reduction.

Question 10

One quarter reduction: (1/4)

Answer 10

Where a guilty plea is indicated after the first stage of proceedings, the maximum reduction is one quarter.

• 1/4 discount will be awarded where the guilty plea is only first indicated at the PTPH (and not earlier when the case was in the magistrates’ court).

Question 11

One tenth reduction: (1/10)

Answer 11

Where a guilty plea is entered on the first day the trial was meant to take place (i.e., ‘at the door of the court’).

• Reduced further, to 0, where D enters guilty plea during the court of the trial.

R v Hodgin – The indication must be an ‘unequivocal indication of D’s intention to plead guilty’. It cannot be an indication that he is only likely to plead guilty.

Question 12

What is the totality principle?

Answer 12

On sentencing, court takes into account both:

1. Offence they are being sentenced for and
2. Any associated offences

 Associated offence = an offence where 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.

Question 13

What is the “offences taken into consideration”?

Answer 13

Defendant can request the court to take into consideration any other outstanding charges for which they have not yet been prosecuted for when sentencing.

 In D’s interests that all outstanding matters against them are dealt with at the same time.

 The offences to be taken into consideration should be of a similar nature to, or less serious than, the offence for which D has been convicted.

 Offences which are more serious should not be taken into consideration at the same time.

Question 14

What are the offence categories?

Answer 14

• Category 1 = greater harm and enhanced culpability.
• Category 2 = either great harm or enhanced culpability.
• Category 3 = lesser harm and lower culpability.

Question 15

Is the court required to give reasons for the sentence it is imposing?

Answer 15

Yes

Question 16

Is the court allowed to take into account levels of current prison population when sentencing?

Answer 16

Yes.

Question 17

What is Concurrent sentence?

Answer 17

• Concurrent = means that the custodial terms are deemed to be served at the same time.

 Concurrent sentence may be imposed, even where the offences did not arise out of the same incident if the sentencing court applies the totality principle.

Question 18

What is consecutive sentence?

Answer 18

• Consecutive = means that one custodial sentence will start after the other one has finished.

 Consecutive sentences will not be imposed where matters of fact arise out of the same incident.

Question 19

Where is a pre-sentence report before plea issued?

Answer 19

Only magistrates court.

Question 20

When will D’s solicitor request a pre-sentence report before plea?

Answer 20

• D’s legal representative will only ask the Probation Service to prepare a pre-sentence report before plea if the defendant 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.

Legal representative must also be satisfied that:

 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 21

What is the plea in mitigation?

Answer 21

Mitigation = penultimate stage in sentencing process.

• Provides D an opportunity to present mitigation before the sentencing court then considers and imposes its sentence.
• Plea in mitigation usually involves a speech by defence advocate, but can also include the calling of character witnesses on behalf of D or introducing character letters to speak of D’s generally good character.

Question 22

What is the aim of the plea in mitigation?

Answer 22

Objective = persuade the sentencing court to impose upon D the most lenient sentence which the court could reasonably be expected to give for that offence.

– D’s solicitor will emphasise the mitigating factrs: e.g., age / health / Co-operation with police / remorse / character / family circumstances / suggested sentence

Question 23

When determining what custodial sentece to pass for a defendant, what test will the courts use?

Answer 23

“threshold test”:

– The offence was so serious that neither a fine alone nor a community sentence can be justified for the offence.

Only if this is passed can the court impose a custodial sentence.

Question 24

How long should the custodial sentence be for?

Answer 24

the shortest amount of time that is commensurate with the crime.

Question 25

Sentencing powers of each court:

Answer 25

Maximum custodial sentence for magistrates = 6 months imprisonment.

 Maximum period of 12 months’ imprisonment for two or more either-way offences by imposing two consecutive months’ imprisonment for each either-way offence.

Maximum custodial sentence for judges in the crown court = power to sentence a defendant to a term of imprisonment up to the maximum permitted for that offence.

Question 26

Where D has been classed as a dangerous offender, what must the sentencing court impose?

Answer 26

(a) Automatic life imprisonment

(b) Discretionary life imprisonment

(c) Extended sentence imprisonment

Question 27

Early release – Custodial sentence of up to 2 years:

Answer 27

• Will be automatically released at the halfway point and then be on licence in the community to the end of the sentence.
• On release, they must have a period of post-sentence supervision to ensure that they are supervised for a period of 12 months beginning on the day they leave custody.

Question 28

Early release – Custodial sentence of over 2 years

Answer 28

• Will usually be released automatically after serving half their sentence and the remaining half is served on licence in the community, unless they are classified as an ‘offender of particular concern’.
• ‘Offender of particular concern’ = Will not be entitled to automatic release on licence after serving half the sentence.

 Instead, they can apply for parole and may then be released at any time from this halfway point up until the end of their sentence.

 They are then released on licence and subject to similar supervision. Offenders likely to be terrorists or child sex offenders.

Question 29

What is a suspended sentence?

Answer 29

Suspended sentence = custodial sentences where the offender does not have to go to prison provided they commit no further offences and comply with requirements.

Question 30

When can a suspended sentence be imposed?

Answer 30

• A custodial sentence of at least 14 days but no more than 2 years (or 12 months for magistrates’ court) may be suspended for at least 6 months and not more than 2 years (s 288(2) Sentencing Act 2020).

Question 31

What is the operational period of a suspended custody sentence?

Answer 31

Period during which the sentence is suspended.

Question 32

What is a supervision period?

Answer 32

Court can impose a ‘supervision period’ within which a defendant must comply with specific requirements.

 Supervision period must not end any later than the operational period.

 Requirements are the same type of requirements which the court may require a defendant to comply with when imposing a generic community order.

Question 33

Effect of breach of suspended sentence …

Answer 33

Sentence of imprisonment will not take effect unless either:

1. The defendant fails to comply with any requirements which have been imposed or,
2. During the operational period, the defendant commits a further offence and the court sentencing the defendant for the ‘new’ offence orders that the original sentence of imprisonment is to take place.

Which court deals with this?

If either (1) or (2) occurs, then:

• If the suspended sentence was imposed by the magistrates’ court, they may be dealt with for the breach either by the magistrates’ court or by the Crown Court.
• If the suspended sentence was imposed by the Crown Court, any breach may generally be dealt with only by the Crown Court.

Question 34

Effect of breach of suspended sentence …

Answer 34

A court dealing with a defendant who has breached a suspended sentence must do one of the following:

(a) Order the custodial sentence originally suspended to take effect unaltered;

(b) Order the custodial sentence to take effect, but for a shorter period of time, and/or substitute a lesser custodial period;

(c) Amend the original order by imposing more onerous community requirements on the defendant; or

(d) Amend the original order by extending the operational period, or by extending the supervision period.

Court must make an order under (a) or (b) unless it considers that it would be unjust to do so in view of all the circumstances.

 E.g., if D is coming to the end of the supervision period having complied with the requirements or if the new offence committed is relatively minor or is a completely different offence to the original one.

 Court will also consider the time which has elapsed since the original offence was committed and any change in D’s circumstances.

 If court does impose (a) or (b), the term of imprisonment for the original offence will be consecutive to the sentence imposed for any new offence.

• Court can also impose a fine of up to £2,500 for breach of a suspended sentence order where it decides not to give immediate effect to the custodial sentence.

Question 35

What is the test for imposed a generic community order?

Answer 35

• The court does not make a community order unless it is of the opinion that

(a) The offence, or

(b) 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 36

Effect of breaching a community order?

Answer 36

If D breaches a community order without reasonable excuse, D receives a warning from the officer from the Probation Service.

• If within 12 moths, D again fails without reasonable excuse to comply with the requirements of the order, the officer reports it to the court.
• D is required to appear before court.

If the court is satisfied that D has, without reasonable excuse, failed to comply with the requirements of the order, the court must:

(a) Amend the order so as to impose requirements on D which are more onerous;

(b) Revoke the order completely and re-sentence the D for the offence, but without taking into account the usual custody threshold; or

(c) 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 37

When D commits a further offence during a generic community order …

Answer 37

When D is convicted of a further offence during their GCO, the magistrates’ may either:

1. Allow the original GCO to continue, or;
2. If it is in the interests of justice having regard to the circumstances that have arisen since the original order was made, they may:

(a) Revoke the order (done if the magistrates are imposing a custodial sentence for the ‘new’ offence, since an offender in prison cannot comply with a community sentence);

(b) Revoke the order and re-sentence D for the original offence as if they have just been convicted of it. If so, court must have regard to the extent to which D has complied with the original order.

Question 38

What is a newton hearing?

Answer 38

Newton hearing (i.e., a hearing within a hearing) = Where D pleads guilty to the charge, but dispute specific facts put forward by the CPS.

Question 39

At a newton hearing what is the basis of plea?

Answer 39

Basis of plea = document which sets out D’s factual version of events to an offence which D accepts they are guilty of.

Purpose = remove aggravating features of the case which would lead to a higher sentence and which D does not accept are an accurate reflection of what actually happened.

• If basis of plea is accepted by prosecution & sentencing judge, the sentence will proceed on the version put forward by the defence.
• If basis of plea is rejected by prosecution & judge thinks that the version of events put forward by prosecution is sufficiently more serious than the version put forward by the defence, then they will call a newton hearing.

Note – Sentencing judge is entitled to reject a basis of plea which they consider to be absurd.

 If judge thinks defence’s version is ‘patently absurd’ then sentencing will take place on the prosecution version of events without a newton hearing.

Question 40

If the victim was providing a service to the public, will this be listed as an aggravating feature?

Answer 40

YES.

Question 41

Is the court bound by the pre-sentencing report?

Answer 41

NO. D’s solicitor will merely remind the court of the reccomended sentence at the hearing & ask them to follow it. But. the court are not obliged to follow it.