Unit 6 Sentencing and Appeals Procedure

Question 1

Sentencing -determining seriousness - statutory aggravating factors

Answer 1

Where court is obliged to treat an offence as being more serious than it would otherwise have done:

(a) Previous convictions
(b) Offences committed whilst on bail
(c) Racial or religious aggravation
(d) Hostility based on sexual orientation or disability

Question 2

Sentencing -determining seriousness - other aggravating factors

Answer 2

(a) offences that are planned or premeditated;
(b) offenders operating in groups or gangs;
(c) the deliberate targeting of vulnerable groups (such as the elderly or 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 3

Sentencing -determining seriousness - other mitigating factors

Answer 3

(a) offences where the defendant has acted on impulse;
(b) when the defendant has experienced a greater degree of provocation than normally expected;
(c) defendants who are suffering from mental illness or physical disability;
(d) 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);
(f) defendants who were motivated by genuine fear; and
(g) defendants who have made attempts to make reparation to their victim.

Question 4

Sentencing - reduction in sentence for a guilty plea

Answer 4

Court must take guilty plea into account.

Current guidelines - one third discount ilable where a guilty plea is indicated at the ‘first stage of proceedings’

Exception if unreasonable to expect the defendant to indicate a guilty plea at this first hearing.

Where after this first stage of the proceedings, the ‘maximum level of the reduction is one- quarter’.

Reduction should then be decreased to a maximum of one tenth where a guilty plea is entered on the first day the trial was meant to take place.

May be reduced further, even to zero, where the guilty plea is entered during the course of the trial.

Question 5

Sentencing steps

Answer 5

STEP 1 – Determining the offence category
3 categories. 1 greatest culpability.

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

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

STEP 4 – Reduction in sentence for a guilty plea

STEP 5 – Imposing an extended sentence
e.g. where the offender is classified as a dangerous offender.

STEP 6 – Totality principle
The court must consider this where an offender is being sentenced for a number of offences to ensure that the overall sentence is proportionate.

STEP 7 – Compensation and other ancillary orders

STEP 8 – Giving reasons for sentence

Question 6

Sentencing - concurrent and consecutive sentences

Answer 6

Concurrent sentence = custodial terms are deemed to be served at the same time.
May be imposed even if they do not arise out of the same incident if the sentencing court applies the totality principle.

Consecutive sentence = one custodial sentence will start after the other one has finished.
Will not generally be imposed where matters of fact arise out of the same incident.

Question 7

Sentencing - pre-sentence report before plea

Answer 7

Defence 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.

Court doesn’t have to use it.

Question 8

Sentencing - mitigation

Answer 8

Penultimate stage and this is for the defendant to have an opportunity to present mitigation before the sentencing court then considers and imposes its sentence. The objective is to persuade the sentencing court to impose upon the defendant the most lenient sentence which the court could reasonably be expected to give for that offence

Question 9

Sentencing - types of sentence

Answer 9

• custody
• suspended sentence
• community sentence
• fine
• discharge (conditional or absolute).

Question 10

Sentencing - custodial sentences - custody threshold test

Answer 10

If no mandatory sentence, court must apply the custody threshold test - so serious that neither a fine alone nor a community sentence can be justified.

Does not mean that a custodial sentence should automatically be imposed.

Question 11

Sentencing - magistrates maximum custodial sentence

Answer 11

6 months’ imprisonment.

Can impose up to a maximum period of 12 months’ imprisonment for two or more either-way offences by imposing two consecutive periods of six months’ imprisonment for each either-way offence.

Question 12

Sentencing - custodial sentences - dangerous offenders

Answer 12

If classified as a dangerous offender, the sentencing court must impose one of the following forms of custodial sentence:
(a) automatic life imprisonment;
(b) discretionary life imprisonment; or
(c) an extended sentence of imprisonment.

Question 13

Sentencing - custodial sentences - early release

Answer 13

Normally released automatically halfway through their sentence.

Then be on licence in the community unless they are classified as an ‘offender of particular concern’. They can apply for early release.

Question 14

Sentencing - suspended sentence - when will a suspended sentence be imposed?

Answer 14

A custodial sentence of at least 14 days but no more than two years (or 12 months in the case of the magistrates’ court) may be suspended for at least six months and not more than two years.

Court will impose a suspended sentence only if it initially decides that the custody threshold, but then considers that particular circumstances exist which justify the suspension of the sentence.

Question 15

Sentencing - suspended sentence - breach

Answer 15

Imprisonment will not take effect unless either the defendant fails to comply with any requirements which have been imposed or, 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 effect.

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;
(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.

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

If the court does make an order under (a) or (b), the term of imprisonment for the original offence will be consecutive to the new sentence.
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 16

Sentencing - generic community order

Answer 16

Threshold which must be reached before a court can impose such an order:
(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 17

Sentencing - generic community order - courts options

Answer 17

(a) Unpaid work requirement – between 40 and 300 hours. This work must be completed within a 12- month period.
(b) Activity requirement – designed to help the defendant overcome a particular problem (such as finding work), or which may be activities to make reparation to the victim (such as repairing damage caused).
(c) Programme requirement – to address the defendant’s offending behaviour.
(d) Prohibited activity requirement – refrain from taking part in specified activities.
(e) Curfew requirement - tagging
(f) Exclusion requirement – this prohibits the defendant from entering a place or places. Monitored electronically.
(g) Residence requirement
(h) Mental health treatment requirement
(i) Drug rehabilitation requirement
(j) Alcohol treatment requirement
(k) Supervision requirement – this requires the defendant to attend appointments with a member of the Probation Service. May be imposed for up to three years.
(l) Attendance centre requirement – for a total of between 12 and 36 hours. Can only be imposed on defendants who are under 25 years of age.
(m) Foreign travel prohibition requirement

Question 18

Sentencing - generic community order - breach

Answer 18

D will receive a warning from the officer from the Probation Service.

If, within the following 12 months, the defendant again fails without reasonable excuse to comply, the officer will report this matter to the court and the defendant will be required to appear before that court.

If the court is satisfied that the defendant 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 the defendant which are more onerous
or
(b) revoke the order completely and re- sentence the defendant 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 19

Sentencing - newton hearings

Answer 19

D may plead guilty to the charge they face but dispute the specific factual version of events put forward by the CPS.

If the dispute concerning the correct version of events may have a bearing on the type of sentence the court imposes, the court must either accept the defendant’s version of events, or allow both the CPS and the defendant to call evidence so that the court can determine the true factual circumstances of the offence on which the defendant’s sentence will be based. This is referred to as a Newton hearing, following the case of R v Newton (1983) 77 Cr App R 13.

Question 20

Sentencing - basis of plea

Answer 20

One way the prosecution and defence may try to avoid having a Newton hearing is to agree a version of events upon which the defendant will be sentenced = ‘basis of plea’ = a document that sets out the defendant’s factual version of events to an offence which the defendant accepts they are guilty of.

If the basis of plea is accepted by the prosecution and the sentencing judge, the sentence will proceed on the version put forward by the defence.

Question 21

Appeals from the magistrates’ court to the Crown Court - when and who hears

Answer 21

A defendant convicted in the magistrates court may appeal to the crown court in the following circumstances:
- If they pleaded guilty they may appeal against sentence they received
- If they pleaded not guilty they may appeal against any resulting conviction and/or sentence they received

Usually be heard by a recorder or a circuit judge who will sit with an even number of magistrates.

The Crown Court will carry out a full rehearing of the issues and take an independent view of what the correct sentence should be, rather than simply reviewing the sentence.

Question 22

Appeals from the magistrates’ court to the Crown Court - prosecution

Answer 22

Prosecution does not have any rights of appeal to the Crown Court against the acquittal of a defendant or sentence.

Can however appeal to the High Court on a point of law by way of case stated, as can the defence.

Question 23

Appeals from the magistrates’ court to the Crown Court - defence

Answer 23

Can appeal against conviction on the basis that the magistrates made errors of fact and/ or law.

And against sentence on basis it is excessive.

Question 24

Appeals from the magistrates’ court to the Crown Court - procedure

Answer 24

Must file a notice of appeal with both the magistrates court and the CPS no more than 15 business days from the magistrates passing sentence.

Crown court judge does have discretionary power to extend this.

Question 25

Appeals from the magistrates’ court to the Crown Court - powers of the crown court

Answer 25

The Crown Court may confirm, reverse or vary the decision. The Crown Court has the power to impose on the defendant any sentence, as long as it is a sentence which the magistrates’ court had the power to impose.

Question 26

Appeal to the High Court by way of case stated

Answer 26

Either the CPS or the defendant may appeal from a decision of the magistrates’ court to the Kings Bench Division of the High Court if:
(a) the decision which has been made by the magistrates is wrong in law; or
(b) the magistrates have acted outside their jurisdiction

Question 27

Appeal to the High Court by way of case stated - procedure

Answer 27

Must apply to the magistrates’ court within 21 days of the relevant decision being made by the magistrates’ court.

Normally done by writing to the clerk to the magistrates’ court.

Magistrates must then prepare a ‘statement of case’, sent to defence for amendments then sent to high court.

Question 28

Appeal to the High Court by way of case stated - who hears the case

Answer 28

Heard by the Divisional Court of the Queen’s Bench Division and will normally be heard by three judges.

No evidence is given by witnesses.

The Divisional Court has the power to reverse, vary or affirm the decision made by the magistrates’ court. It may also remit the case back to the same magistrates’ court with a direction to acquit or convict the defendant, or to remit the case to a different bench of magistrates (if the case needs to be reheard).

Question 29

Appeal to the High Court by way of case stated - further appeal to Supreme Court

Answer 29

CPS and the defendant are able to appeal to the Supreme Court in respect of any decision or order made by the High Court following an appeal.
Must be on a point of law only, and the High Court must certify it to be a point of law of general public importance. Further, either the High Court or the Supreme Court must grant leave to appeal.

Question 30

Judicial review

Answer 30

Not strictly a form of appeal.
But represents an alternative method of challenging a decision made by the magistrates’ court.

Application may be made either by the CPS or the defendant if:
(a) the magistrates’ court has made an order that they had no power to make (and so have acted ‘ultra vires’, or beyond their powers); or
(b) the magistrates’ court has breached the rules of natural justice (either by contravening a party’s right to a fair hearing, or by appearing to be biased).

An applicant for judicial review will seek an order from the Divisional Court either quashing the decision made in the magistrates’ court or compelling the magistrates’ court to act (or not act) in a certain way.

Question 31

Appeals from the Crown Court - procedure

Answer 31

Seek permission to appeal from the Court of Appeal direct.

Within 28 days of the conviction (not sentence), the defendant must serve their appeal notice, together with the draft grounds of appeal, on the Registrar of Criminal Appeals at the Court of Appeal.

Question 32

Appeals from the Crown Court - prosecution

Answer 32

CPS generally has no right of appeal in respect of a defendant who has been acquitted by a jury following a Crown Court trial.

Right of appeal to the Court of Appeal in respect of rulings made by a trial judge either before or during the trial which:
(a) either effectively terminate the trial (‘termination rulings’); or
(b) significantly weaken the prosecution case (‘evidential rulings’).

CPS has a right of appeal to the Court of Appeal if the Attorney- General considers that the Crown Court has passed a sentence which is ‘unduly lenient’.

Question 33

Applications for a retrial by the CPS

Answer 33

• Some offences for which a retrial is possible following the acquittal of a defendant:
  (a) murder and attempted murder;
  (b) manslaughter;
  (c) kidnapping;
  (d) a number of sexual offences including rape, attempted rape and assault by penetration;
  (e) various offences in relation to Class A drugs, such as unlawful importation and production; and
  (f) arson endangering life or property.

The Court of Appeal will only quash an earlier conviction and order a retrial where the CPS can satisfy a two- fold test:
1. The evidential test
requires that there be ‘new and compelling’ evidence of the defendant’s guilt.
2. The interests of justice test
Court of Appeal should have particular (but not exclusive) regard to the following factors:
(a) whether existing circumstances make a fair trial unlikely;
(b) the length of time since the offence was allegedly committed;
(c) whether it is likely that the new evidence would have been adduced in the earlier proceedings, but for the failure of the police or the prosecution to act with due diligence and expedition; and
(d) whether, since the earlier proceedings, the police or prosecutor have failed to act with due diligence or expedition.