5.5 Sentencing - non-custodial

Question 1

What are the five forms of non-custodial sentence available to the court?

Answer 1

1. Bind over
2. Absolute discharge
3. Conditional discharge
4. Fines
5. Community order

Question 2

Who can a bind over be imposed upon?

Answer 2

1. A defendant following conviction
2. A defendant following acquittal
3. A defendant after charges were dismissed
4. A witness

Question 3

When can the court impose an absolute or conditional discharge?

Answer 3

Section 12(1) Powers of the Criminal Courts (Sentencing) Act 2000
[Conditions:
1. The offence has no fixed penalty;
2. the court is of the opinion;
3. with regard to all the circumstances;
4. including the nature of the offence and D’s character;
5. that it is inexpedient to inflict punishment.]

Question 4

What is the maximum period of a conditional discharge?

Answer 4

Section 12(1)(b) Powers of the Criminal Courts (Sentencing) Act 2000
3 years

Question 5

What are the consequences of an absolute discharge?

Answer 5

None.

Question 6

What are the consequences of imposing a conditional discharge?

Answer 6

Section 13 PCC(S)A
D is discharged for the offence for a specified period of time (up to three years). If D offends again during that period D can be re-sentenced for the original offence.

(6) - the court has discretion whether to re-sentence for the original offence, but must sentence for the second offence.

Question 7

What happens where D fails to pay a fine?

Answer 7

A means enquiry.

The court then has the power to:

1. Allow more time to pay;
2. require D to pay in instalments;
3. write off some or all of the fine;
4. if all of the above have been tried or considered, imprisonment in default.

Question 8

What is the “community threshold”?

Answer 8

Section 148(1) Criminal Justice Act 2003
A court must not pass a community sentence ... unless it is of the opinion that the offence ... was serious enough to warrant such a sentence.

Question 9

Who can be punished with a community order?

Answer 9

Section 177(1) CJA
A person over 18 convicted of an offence

Question 10

What is the maximum length of a community order?

Answer 10

Section 177(5) CJA
Three years

Question 11

When must the court obtain a pre-sentence report?

Answer 11

Section 156 CJA
(3)
Before imposing
(a) a custodial sentence, or
(b) a community sentence, unless
(4)
"in the circumstances of the case, the court is of the opinion that it is unnecessary to obtain a pre-sentence report."

Question 12

What happens where D breaches a community order?

Answer 12

Section 179 and Schedule 8 Criminal Justice Act 2003
Sch 8
1. Warning;
2. bring back to court - trial to establish second breach;
3. amend the order (max extension 6 months), fine D, or revoke the order and impose a new sentence.

Question 13

Which provisions set out the court’s powers with regard to absolute and conditional discharge?

Answer 13

Sections 12 - 15 PCC(S)A

Question 14

Which provision sets out the test for when the court can order and absolute or conditional discharge?

Answer 14

Section 12(1) PCC(S)A

Question 15

Which provision sets out the community threshold test?

Answer 15

Section 148(1) Criminal Justice Act 2003

Question 16

Which provision sets out the court’s powers to impose community orders?

Answer 16

Section 177 CJA

Question 17

Which provision sets out the court’s power to obtain a pre-sentence report?

Answer 17

Section 156 CJA

Question 18

Which provisions deal with the consequences of a breach of a community order?

Answer 18

Section 179 and Schedule 8 Criminal Justice Act 2003

Question 19

Where D breaches a conditional discharge imposed by the Magistrates Court for an either-way offence and is re-sentenced for the original offence in the Crown Court, can the Crown Court sentence D for the original offence as if she had been committed for sentence?

Answer 19

No. It is limited to summary punishment.

Question 20

Can the magistrates court re-sentenced someone who breaches a conditional discharge imposed by the Crown Court?

Answer 20

No

Question 21

What is a maximum fine assumed to be where the offence-creating statute does not specify?

Answer 21

Level 3: £ 1,000.

Question 22

When can a fine be imposed?

Answer 22

For any offence unless prohibited by statute.

However it cannot be imposed alongside a hospital order or conditional discharge for a single offence.

It is very rare to impose a fine alongside a prison sentence.