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Crim > 23. Non-Custodial sentences > Flashcards

23. Non-Custodial sentences Flashcards

1
Q

availability of absolute discharge?

A
  • offender convicted by or before court and
  • no mandatory sentence applies
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2
Q

exercise of power to make absolute discharge?

A

if available, MAY make order if it is inexpedient to inflict punishment having regard to:
nature of offence
character of offender

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3
Q

what is absolute discharge?

A

order discharging offender absolutely in respect of offence

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4
Q

effect of absolute discharge on other orders?

A

if discharging can:
disqualify
make comp, deprivation, restitution, unlawful profit, costs or confiscation order

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5
Q

what orders cannot be mixed with absolute discharge?

A

custody, community, fine, football banning order

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6
Q

what is a conditional discharge?

A

order discharging offender for an offence subject to condition that offender commits no offence during specified period

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7
Q

availability of conditional discharge?

A

offender convicted by court and
no mandatory sentence requirement

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8
Q

when is a conditional discharge not available?

A
  • breach of SHPO, CBO
  • youth conditional cautions
  • offences relating to serious violence reduction order
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9
Q

exercise of power to make conditional discharge?

A

may make where it is inexpedient to inflict punishment having regard to:
nature of offence
offender character

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10
Q

max time of conditional discharge?

A

3 years beginning on day order is made

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11
Q

can other conditions be added to conditional discharge?

A

No. Sole condition is not to commit another offence

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12
Q

can conditional discharge be combined?

A

not with another punitive measure

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13
Q

effect of absolute discharge on other orders?

A

if discharging can:
disqualify
make comp, deprivation, restitution, unlawful profit, costs or confiscation order

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14
Q

when will conditional discharge be breached?

A

by **conviction **of a further offence committed during discharge period

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15
Q

availability of fine?

A

where offender conviction on indictment for an offence:
- instead of or
- in addition to

dealing with offender in any other way

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16
Q

what can court do when conditional discharge breached?

A

may sentence offender for original offence in any way they could have in first instance.

therefore, CC dealing with breach of mags conditional discharge is limited to MC powers.

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17
Q

when is fine not available

A

mandatory sentence applies

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18
Q

when do court have to fix term in default?

A

when offender over 18

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18
Q

what orders can a fine not be combined with?

A

hosp order
conditional discharge
absolute discharge

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19
Q

when court gives fine what orders can it make to do with it?

A

may make order:
- allowing time to pay it or
- directing payment by instalments

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20
Q

what is a term in default?

A

court MUST make order fixing term of:
imprisonment or
detention

if sum is not paid

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21
Q

when can MC impose a fine?

A

where offence provision allows it and they are convicted of that offence

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22
Q

when does s.119 SA 2020 apply?

A

where mags have power to sentence offender to imprisonment or other detention but not a fine

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23
Q

s.119 allows?

A

MC to impose fine instead of sentencing imprisonment / detention.

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23
Q

amount of fine must reflect?

A

seriousness of case and
offender financial circs

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24
Q

before fixing amount of fine what is to be done?

A

court MUST inquire into offenders financial circs

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25
Q

what is a financial circs order?

A

order requiring offender to give statement of their assets and financial circs

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26
Q

when can court ask for financial circs order?

A

court may before sentencing make financial circs order

both MC and CC

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27
Q

if accused does not comply with financial circs order?

A

liable to fine not exceeding (level 3 summary)

if makes false statement liable to (level 4 fine)

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28
Q

fine beyond accused means will be….

A

wrong in principle

29
Q

can court impose custody if offender does not have means to pay fine?

A

no. should adjust fine up or down to reflect offenders ability to pay.

30
Q

fine should normally be payable within?

A

12 months although there can be exceptions to this.

31
Q

can fines be combined with custody?

A

yes. but not often desirable since prison may deprive offender of means to pay fine and result in enforcement of default sentence

32
Q

threshold test for imposing community order?

A

must not make community order unless of opinion that:
* offence or combination
so seruius to warrant making order

33
Q

when are community orders available?

A

if offence punishable with imprisonment and no mandatory sentence applies

33
Q

community orders cannot be combined with?

A

hospital order
guardianship order
suspended sentence order

34
Q

what must court consider when deciding whether to give community sentence and what conditions to apply?

A

all info available about offence and offender

35
Q

when is PSR required for comm order?

A

before imposing community order must normally obtain a PSR unless it is unnecessary to do so.

36
Q

min and max unpaid work requirement is?

A

at least 40 hours

not more than 300 hours

37
Q

before imposing unpaid work requirement what must court hear?

A

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.

37
Q

how long should UPW requirement be?

A

Work required should be completed within 12 months

38
Q

can community orders with UPW requirements be consecutive?

A

can run consecutive or concurrent but cannot be more than 300 hours.

39
Q

what is a rehabilitiation activity requirement?

A

requirement that during relevant period, offender must comply with any instructions to attend appts or activities

relevant period =
- period comm order in force
- if suspended sentence - supervision period

40
Q

court must specify what in rehab requirement?

A

max number of days offender must cimplete

41
Q

what is a programme requirement?

A

that offender participate in an accredited programme at a particular place on a number of days which must be specified in the order.

42
Q

what will render a programme requirement order unlawful?

A

failure to specify that a programme needed to be complied with, and to specify the number of days

43
Q

what is prohibited activity requirement?

A

require an offender to refrain from participating in certain activities, on a specified day or days (such as attending football matches), or over a specified period of time.

44
Q

before inserted prohibited activity requirement court must?

A

must consult probation officer

45
Q

what is a curfew requirement?

A

requirement that the offender must remain at a place specified by the court for certain periods of time

46
Q

min and max periods of time for curfew order ?

A
  • not less than 2 hours
  • not more than 16 hours
    on a given day
47
Q

before inserting curfew requirement court must…

A

obtain and consider info about place proposed to be specified and attitudes of persons likely to be affected by enforced presence of offender

48
Q

where court makes community sentecne with curfew it must normally

A

impose electronic monitoring requirement unless court considers inappropriate to do so.

49
Q

what is an exclusion requriement?

A

requirement which 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

50
Q

how long can exclusion requirement be?

A

not more than 2 years

51
Q

what is a residence requirement?

A

requirement that the offender resides at a place specified in the order for a specified period of time

52
Q

what residence can be permitted for residence requirement?

A

may not specify residence at a hostel or other institution except on the recommendation of probation

53
Q

what is a mental health treatment requirement?

A

requirement that offender must during periods specified submit to MH treatment

54
Q

before imposing mental health treatment requirement what must court be satisfied?

A

must be satisfied that mental condition of offender is such as requires and may be susceptible to treatment but is not such to warrant the making of a hospital order or guardianship order AND

that arrangements have been or can be made for treatment

55
Q

alcohol and drug rehab requirement?

A

offender must submit to treatment by or under the direction of a specified person having the necessary qualifications or experience or have samples taken (drugs only)

55
Q

electronic whereabouts monitoring requirement is?

A

court may, in the alternative or in addition to it, order the electronic monitoring of the offender’s whereabouts, otherwise than for the purpose of securing compliance with any other requirement in the order.

56
Q

before imposing alcohol/drug requirement court must be satsified of?

A

they are dependent and dependency susceptible to treatment and arrangements have been or can be made

57
Q

when is warning required?

A

If responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a community order, the officer MUST give a warning describing the circumstances of the failure

58
Q

what must warning do?

A

describe circs of failure
state failure unacceptable
inform offender that if within 12 months they fail to comply again they will be brought back before court.

59
Q

if there is a further failure in 12 months following warning what happens?

A

officer must refer to enf officer who will consider matter and if appropriate lay information in respect of failure to comply.

60
Q

when can MC deal with breach of community order?

A

if CC has included in community order that any breach of order is to be dealt with by mags court.

61
Q

how are breaches to be proved?

A

BYRD

62
Q

when will comm order be breached?

A

if failed to comply without reasonable excuse

63
Q

if proved that breach has occurred what power do court have?

A

court MUST deal with offender in one of following ways:
* fine up to 2500
* amend to more onerous conditions and may extend duration of requirements up to 6 months beyond original end date (can only extend once)
* ordering the offender to be committed to prison for up to 28 days only if it qualifies for special procedures
* re-sentence if order made by that court dealing with it (MC/CC)

64
Q

can court do nothing upon breach of comm order?

A

no.

65
Q

when can court impose custody upon breach of comm order?

A

If the offender has wilfully and persistently breached the requirements of order

66
Q

when can comm order be revoked?

A

where, on application by offender or probation officer, having regard to changed circumstances since the order was made it is in the interests of justice to revoke the order

67
Q

max length of a community order?

A

3 years

68
Q
A

Crim (27 decks)

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