CLP 5 Sentencing

Question 1

What must the courts have regard to when considering sentencing?

Answer 1

(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.​

Question 2

When considering what the courts have regard to when considering sentencing, do any factors have more importance?

Answer 2

No they have equal weight, but in particular cases some factors may be more important than others

Question 3

When considering the seriousness of an offence, what aspects do the courts consider?

Answer 3

Culpability
Harm
Aggregating factors

Question 4

Can defendants be sentenced in the crown court for summary only offences?

Answer 4

No

Question 5

Where can a defendant be sentenced for an either way case, if they please guilty in the magistrates court?

Answer 5

They can be sentenced in the magistrates’ court or they could be sent to the Crown Court for sentence

Question 6

Where can a defendant be sentenced for an either way case, if they plead one way or another in the crown court?

Answer 6

They must be sentenced in the Crown Court, they cannot be sent back to the magistrates’ court for sentence

Question 7

Where can a defendant be sentenced for an either way case, if they please NOT-guilty in the magistrates court and the case stays in the magistrates court?

Answer 7

They can be sentenced in the magistrates’ court or they could be sent to the Crown Court for sentence

Question 8

Where will a defendant be sentenced for a indictable only offence?

Answer 8

Crown Court

Question 9

When are Newton Hearings heard?

Answer 9

When the defendant please guilty but disputes the facts of the offence (i.e. they did less than they are being accused of)

Question 10

What is the first step towards a Newton Hearing

Answer 10

The defence will draft a ‘basis of plea’ and pass to prosecution for their agreement

Question 11

What if the prosecution do not agree the defendant’s ‘basis of plea’?

Answer 11

• If the basis of please is not absurd and would affect the sentence, a Newton hearing will be held.
• Otherwise sentence as normal

Question 12

What if the prosecution agree the defendant’s ‘basis of plea’

Answer 12

the court will have to consider if they are happy with the basis. If not, they will move to a Newton hearing

Question 13

What happens at a Newton hearing?

Answer 13

The prosecution makes an opening speech and calls evidence in the usual way and their witnesses can be cross-examined by the defence. The defendant is able to give evidence and call witnesses if they so wish. Both parties are entitled to address the Judge by way of a closing speech.

Question 14

How is a Newton hearing decided?

Answer 14

If the prosecution can’t prove their case beyond reasonable doubt, the defendant is sentenced on their version of the facts.

If the prosecution do prove their case, the defendant loses some credit for the guilty plea (normally halved, possibly more if witnesses are called).

Question 15

How does sentencing work if there is more than one offence?

Answer 15

The court will consider the totality of the sentence.

If offences are related, they will normally run concurrently

If offences aren’t related they will normally run consecutively.

Question 16

In what circumstances can a defendant ask for an indication of sentence in the magistrate’s court?

Answer 16

• the offence is either-way and Magistrates have accepted jurisdiction at the allocation stage.
• D can ask for an indication
• Magistrates can only indicate custodial or non-custodial
• Only binding if defendant pleads guilty

Question 17

When can a defendant ask for an indication of sentence in the Crown Court (Goodyear indication)?

Answer 17

• D can ask at anytime before jury return their verdict

before the indication is given:

• D must accept the prosecution facts or have a written basis of plea agreed by the parties and the court.
• whether to give an indication is discretionary

Question 18

The court must not pass a custodial sentence unless…

Answer 18

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 so serious that neither a fine alone nor a community sentence can be justified for the offence’

Question 19

The court must not make a community order unless…

Answer 19

(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 20

When can a court not follow sentencing guidelines?

Answer 20

the court is satisfied that it would be contrary to the interests of justice to do so

Question 21

What happens at a sentencing hearing?

Answer 21

Prosecution open facts, make submissions & applications

Then

Defence Mitigate

Then

Judge passes sentence

Question 22

At what point in proceedings can pre-sentence reports be requested?

Answer 22

Pre sentence reports can be ordered at the Plea and Trial Preparation Hearing or even at the time of sending.

Question 23

In what circumstances is a pre-sentence report required?

Answer 23

A court must obtain a pre-sentence report before passing a custodial or community sentence, unless it considers it unnecessary to do so

Probation input is needed before a community order can be imposed

Question 24

the court is contemplating a sentence pursuant to the Mental Health Act 1983 what does it require?

Answer 24

It must receive evidence from two medical practitioners stating that in their opinion the defendant is suffering from a mental disorder.

Question 25

What is the threshold for imposing a community order?

Answer 25

The court must not make a community order unless it is of the opinion that the offence, or combination of the offence and one or more offences associated with it was serious enough to warrant the making of such an order.

Question 26

What are the reductions for a guilty plea?

Answer 26

Guilty plea at first stage of proceedings – max 1/3

Guilty plea after the first stage of proceedings – max ¼

Guilty plea on the day of trial – sliding scale with max 1/10

Question 27

What is required of the offence in order for a community order to be given?

Answer 27

• The offender must be over 18 and the offence must be punishable with imprisonment.

Question 28

What is the maximum length of a community order?

Answer 28

3 years

Where a defendant completes their order within the time period specified, they or the Probation Service may apply for the order to be discharged.

Question 29

What are the restrictions on a curfew requirement?

Answer 29

2-16 hours in any 24 hours; max term 12 months

Question 30

What are the restrictions on a Foreign travel prohibition requirement

Answer 30

Not to exceed 12 months

Question 31

What are the restrictions on a Not to exceed 12 months

Answer 31

Maximum of 120 days

Question 32

What are the restrictions on a Attendance Centre requirement

Answer 32

For defendants 18–24 only

Question 33

What are the initial consequences of a breach of community order?

Answer 33

If an offender fails without reasonable excuse;
- they must be warned that their failure is unacceptable.
- If they fail again, breach proceedings must be instituted against the offender.

Question 34

What happens in court if proceedings are brought against an offender for breach of a community order?

Answer 34

brought back to court and have the breach put to them.
They can either:

• admit or deny the breach;
• if they choose the latter, the court will hold a trial as to whether there was a failure without reasonable excuse.

Question 35

What happens if an offender is found to have breached community order?

Answer 35

By amending the order to make it more onerous.

By fining the offender up to £2,500.

By revoking the Community Order and re-sentencing the offender.

The court is able to extend (once only) the period of the Community Order by up to six months beyond the usual three-year limit if necessary.

Question 36

What happens if an offender is found to have breached community order and the court re-sentences the offender?

Answer 36

Can impose a custodial sentence not exceeding six months, even in respect of an offence which was not an offence punishable with imprisonment.

Question 37

What is the threshold for a custodial sentence?

Answer 37

A custodial sentence must not be passed unless the court is satisfied that the offence or offences are so serious that neither a fine nor a Community Order can be justified.

Question 38

How long can magistrates make a custodial sentence?

Answer 38

6 months for a summary only offence; or
6 months for one either way offence
12 months for a two or more either way offence.

Question 39

What reduction is there for time served remanded in custody?

Answer 39

That period is automatically counted towards their sentence.

Question 40

What reduction is there for time served on bail and what are the conditions?

Answer 40

In addition, if a defendant has been on bail
- with a curfew condition,
- for 9 hours or more
- which was electronically monitored,
they are entitled to credit towards their sentence. This is not automatic - each day n bail counts as half a day

Question 41

How long can the magistrates court suspend a sentence for?

Answer 41

A magistrates’ court may suspend any determinate custodial sentence of between 14 days and 6 months

Question 42

How long can the crown court suspend a sentence for?

Answer 42

The Crown Court may suspend any determinate custodial sentence of between 14 days and 2 years.

Question 43

What happens if a defendant breaks the terms of their suspended sentence?

Answer 43

The defendant must be warned on their first breach and if they commit another breach within 12 months of a warning, breach proceedings will then be instituted.

Question 44

What is the minimum sentence for a third Class A drug trafficking offence?

Answer 44

7 years’ imprisonment (if pleads guilt can reduce to 80%)

Question 45

What is the minimum sentence for a third domestic burglary

Answer 45

3 years

Question 46

What is the minimum sentence for certain firearms offences

Answer 46

5 years

Question 47

What is the minimum sentence for a second offence of possessing a weapon

Answer 47

6 months

Question 48

What is the minimum sentence for threatening with a weapon.

Answer 48

6 months

Question 49

When can the court deviate from sentencing guidelines?

Answer 49

When it is in the interests of justice to do so.

Question 50

If a sentence is suspended, what is the Operational period

Answer 50

The period in which if the offender offends the suspended sentence take effect

Question 51

How long is the Operational period

Answer 51

A minimum of six months but less than two years

Question 52

If a sentence is suspended, what is a supervision period?

Answer 52

If a community order is impsed the court MUST have a supervision period. The period after the sentence when the offender.

It must start on the day the order is made last at least 6 months but last no longer than two years

Question 53

What is the maximum sentence that can be suspended?

Answer 53

2 years

Question 54

When must a prisoner on an Extended determinate sentence be able to apply for parole?

Answer 54

2/3 point of the custodial term (they must be released at the end of the custodial period).

Question 55

What’s the supervision period and operational provision

Answer 55

Supervision period - probation
Operational period - don’t be naughty