Chapter 6: Sentencing

Question 1

Overview

1.1 The Sentencing Code

Answer 1

The ‘Sentencing Code’ is a consolidation of existing sentencing procedure law. It brings together
over 50 pieces of primary legislation relating to sentencing procedure into one single Sentencing Act 2020 (‘SA 2020’).

Parts 2 to 13 of the SA 2020 make up a code called the ‘Sentencing Code’ (the ‘Code’). Unless referring specifically to sections 1 or 2 of the SA 2020, it is acceptable to refer to either the
SA 2020 or the Code. As well as the Code, courts also refer to sentencing guidelines published by the Sentencing
Council.

Question 2

1.2 Types of sentence

Answer 2

There are a variety of disposals available to a court when dealing with an offender; all of which meet, to a greater or lesser degree, the principles of sentencing. They fall into custodial and non-custodial sentences. One of the main advantages of the SA 2020 is that it brings the wide range of disposals together ‘under one roof’ as it were

Question 3

1.3 Purposes of sentencing (adult)

Answer 3

When determining the proportionate sentence to be imposed, the court will have regard to the various purposes of sentencing. Section 57 SA 2020- In cases involving those aged 18 and over (at the date of conviction) the court must have regard to:
(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. The purposes are given equal weight though in a particular case some may be more important
than others

Question 4

1.4 Approach to sentencing

Answer 4

The mechanics of how a court sentences an offender is essentially the same irrespective of which
court is dealing. The only key differences are:
* The availability of certain sentences; and
* The limits to the powers of the magistrates’ and youth courts.
In order to decide both the type and length of any particular sentence, the court must assess the seriousness of the case before it. To do so, it will refer to the sentencing guidelines.

Question 5

1.5 Sentencing procedure

Answer 5

Sentencing happens once a defendant is convicted. This occurs either by the defendant entering a guilty plea or being found guilty after a trial.
The magistrates’ court, youth court and Crown Court are all courts of first instance with powers of sentence. It is important to appreciate the difference between the maximum sentence which can be imposed for a specific offence and the maximum sentence which can be imposed by a particular
court for that offence

Question 6

1.5 Sentencing procedure

Answer 6

This means that statute also allows for defendants, where necessary and appropriate, to be committed for sentence to the Crown Court which has greater powers. Section 14 SA 2020 for example, provides that magistrates can commit an adult for sentence to the Crown Court for offences triable either way where greater sentencing powers are required.

Question 7

1.6 Powers of the courts

Answer 7

The following tables summarise which courts can sentence depending on the type of offence involved:
* Summary only
* Either-way
* Indictable only

Question 8

1.7 On what basis is the defendant being sentenced?

Answer 8

For the purposes of this section, let’s use a simple example. The defendant is charged with a single count of Assault Occasioning Actual Bodily Harm (s.47 Offences against the Person Act 1861). The prosecution alleges that he punched the complainant in the face twice. The complainant fell to the ground. The defendant is alleged to have kicked the
complainant twice in the ribs whilst the complainant remained on the ground

Question 9

1.7 On what basis is the defendant being sentenced?

Answer 9

Let us assume that the defendant’s instructions are that he did assault the complainant, and he accepts that this did cause actual bodily harm, but that he takes issue with the facts asserted by the prosecution. If this is his position, he would need to:
* Enter a guilty plea, but on a written basis, the prosecution would indicate whether they viewed the basis as acceptable; if accepted
* The court will then proceed to consider whether this basis is an acceptable one; and
* The court will consider whether or not a Newton hearing is required.

Question 10

1.8 Newton hearings

Answer 10

Where a defendant pleads guilty on a basis that will make a material difference to sentence, the
court must hold a Newton hearing to decide the factual basis upon which it should pass sentence (R v Newton).
What happens at a Newton hearing?

Question 11

1.8 Newton hearings

Answer 11

In the magistrates’ court, a Newton hearing is presided over by magistrates or a District Judge much like a regular trial. In the Crown Court it takes place without a jury. This is one of the limited
number of occasions where a Crown Court Judge acts as the arbiter of both law and fact. A Newton hearing is an exception to the rule that where a defendant enters a guilty plea there is
no ‘trial’ phase to the process

Question 12

1.8 Newton hearings

Answer 12

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.

At the conclusion of the hearing the court must decide whether the prosecution has proved its version of the facts beyond reasonable doubt. If it has, the defendant will be sentenced on the prosecution version of the facts. If it has failed to prove their factual basis to that standard, the
defendant will be sentenced on the defence version of the facts as set out in their basis of plea

Question 13

1.8 Newton hearings

Answer 13

If the prosecution is able to prove their case beyond reasonable doubt and the defendant sentenced on their version of the facts, a further consequence for the defendant is that they lose
some of the credit that they receive for pleading guilty. The Reduction in Sentence for a Guilty Plea guideline says that the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called, it may be appropriate to further decrease the reduction. The rationale must be that the defendant has used up some court time that otherwise would have been saved due to their plea and/or that
witnesses who would have been spared from giving evidence due to their plea instead had to come to court and give evidence at the Newton hearing.

Question 14

1.9 Totality

Answer 14

When sentencing for more than one offence, a court must consider what the total sentence should be and arrive at one that is just and proportionate. This is not as simple as adding the two (or more) sentences together, the judge will consider whether consecutive or concurrent sentences are more appropriate in the circumstances. Where the various offences arise out of the same facts it will usually be appropriate to pass concurrent sentences for each, and where they arise out of different facts, consecutive sentences are likely to be passed.

Question 15

1.10 Deferring sentence

Answer 15

A court can defer sentence for up to six months, the idea being that the defendant is allowed this
time to prove to the court that D has either ‘changed’ or that the offence was an absolute ‘oneoff’ and thus allowing D the ability to present to the court at the end of the deferral period in a
much better light, and often, receive a lighter sentence as a result.

Question 16

1.10 Deferring sentence

Answer 16

The deferral period cannot be extended save for where the magistrates’ court defers sentence for a period, at the end of which they commit to the Crown Court for sentence, the Crown Court then has the option of deferring for a further six month period.

Question 17

1.11 Indications of sentence

Answer 17

There are two formal procedures for seeking an indication of sentence in the event of a guilty plea. One in each court:

Question 18

1.11.1 Magistrates’ court

Answer 18

The offence is either-way and the court has accepted jurisdiction during the allocation process. At this stage, D is entitled ask for an indication of what their sentence would be were they to
remain in the magistrates’ court and plead guilty. The court does not have to give an indication of sentence but, if it does it can only say whether
the sentence would be a custodial or a non-custodial sentence. Only binding if D then pleads guilty.

Question 19

1.11.2 Crown Court: Goodyear indication

Answer 19

D can ask for an indication of the sentence either before the PTPH or at any stage of the proceedings before the jury return their verdict. Before asking for an indication D must:
(a) Either accept the prosecution facts or a written basis of plea must be agreed by the parties
and the court
(b) Give clear instructions to their counsel that D wishes to ask for an advance indication of
sentence. The giving of an indication is discretionary and it remains the decision of the judge whether to
give one or not

Question 20

1.12 Summary

Answer 20

This section considered the principles of sentencing contained in the Sentencing Act 2020:
* The purpose of sentencing
* Sentencing powers in both the magistrates’ court and the Crown Court
* The purpose of Newton hearings.
* Totality of sentence
* Indications of sentence

Question 21

2 Sentencing: Determining sentence

Answer 21

2.1 Seriousness
In order to decide on the appropriate sentence, the court will consider the Sentencing Code 2020
alongside any relevant sentencing guidelines. The court must determine the seriousness of the offence.
The starting point to determine seriousness is to consider culpability and harm.

Section 63 SA 2020: Where a court is considering the seriousness of any offence, it must consider
(a) The offender’s culpability in committing the offence, and
(b) Any harm which the offence (i) caused, (ii) was intended to cause, or (iii) might foreseeably
have caused.

Question 22

2.1.1 Thresholds

Answer 22

Where appropriate the court must consider whether either statutory threshold has been passed to
justify imposing a custodial or community order.
Section 230 SA 2020:
(a) The court must not pass a custodial sentence unless it is of the opinion that:
(i) The offence, or
(ii) 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 23

Section 204 SA 2020:

Answer 23

(b) The court must not make a community order unless it is of the opinion that:
(i) The offence, or
(ii) 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 24

2.1.2 Culpability

Answer 24

Culpability is essentially blameworthiness and is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning.

The mere presence of a factor that is inherent in the offence should not be used in assessing culpability – so for example, intention to cause serious harm is a necessary element in a section 18 OAPA. What would increase culpability might be how the injuries were inflicted eg with a weapon.

Question 25

2.1.3 Harm

Answer 25

Harm is an assessment of the damage caused to the victim. So, in an assault it is a consideration of how injured the victim was and whether the assault was sustained or repeated. In a theft it will be assessed by the financial loss resulting from the theft and any additional harm suffered by the victim or anyone else, for example injury or emotional distress

Question 26

2.2 Sentencing Guidelines

Answer 26

Every court must follow any sentencing guidelines which are relevant to the offender’s case unless the court is satisfied that it would be contrary to the interests of justice to do so. Sentencing guidelines are available for most of the significant offences sentenced in the magistrates’ court Sentencing guidelines for use in the magistrates’ courts and for a wide range of offences in the Crown Court Sentencing guidelines for use in Crown Court There are also overarching guidelines on general sentencing issues and principles such as Sentencing children and young people

Question 27

2.2 Sentencing Guidelines

Answer 27

Where no offence-specific sentencing guideline exists, courts will refer to the General guideline: overarching principles. Judges in the Crown Court might also refer to Court of Appeal judgments to look at how sentences have been reached for similar cases. The General guideline can also be used with offence-specific guidelines where factors are not covered, and overarching guidance is required.

Question 28

2.3 What happens at a sentencing hearing? 2.3.1 Prosecution

Answer 28

The duties of a prosecutor extend to reminding the court of the following: * Any previous convictions * Any ancillary orders that the prosecution seeks (eg costs, compensation, restraining order) * Any relevant sentencing guidelines * Any general sentencing issues necessary to ensure that a lawful sentence is passed (eg the mandatory minimum sentence provisions) * Any victim impact statement which has been produced. It is not the role of the prosecution to tell the court or to suggest to the court what the ultimate sentence may be.

Question 29

2.3.2 Defence

Answer 29

As with the prosecutor, the defence are under a general duty to ensure that a lawful sentence is passed. Legal representatives must ensure that what they put forward is consistent with their instructions and their duties not to mislead the court. The defence may ask for a pre-sentence report should they want one. It is, however, more common to ask for one before the prosecution goes through the process of opening the case. If a pre-sentence report is ordered by the court the case will ordinarily be adjourned for a period for this to happen. Pre sentence reports can be ordered at the Plea and Trial preparation hearing or even at the time of sending.

Question 30

2.3.3 Pre-sentence reports

Answer 30

Section 30 SA 2020 states that a court must obtain a pre-sentence report before passing a custodial or community sentence, unless it considers it unnecessary to do so. The report is to assist the court in determining the most suitable method of dealing with an offender. Probation input is needed before a community order can be imposed to assess the defendant’s suitability for any programmes. The probation officer will meet the defendant and discuss the offence and the defendant’s attitude towards it.

Question 31

2.3.4 Other reports

Answer 31

Sometimes other reports will be obtained, either by order of the court or by the defence. These can include medical reports (if the defendant has a physical condition) or a psychiatric report. If the court is contemplating a sentence pursuant to the Mental Health Act 1983 then it must receive evidence from two medical practitioners stating that in their opinion the defendant is suffering from a mental disorder.

Question 32

2.4 The Code: Approach to sentencing

Answer 32

The Code confirms the approach the court should take: (a) Determine offence seriousness (ie harm and culpability). (b) Consider aggravating factors (ie those increasing seriousness), both statutory (eg previous relevant convictions, on bail, racial, religious, disability or sexual aggravation) and other nonstatutory matters (eg alcohol, abuse of power, breach of trust). (c) Consider mitigating factors (ie those reducing seriousness), eg those relating to the offence, such as provocation or excessive self-defence; and those relating to the offender, such as positive good character, offender’s vulnerability, mental health, remorse or other personal mitigation

Question 33

2.4 The Code: Approach to sentencing

Answer 33

(d) Consider any assistance given to the prosecution. (e) Consider the appropriate reduction for any guilty plea. (f) Consider totality. (g) Appropriate ancillary orders must be considered eg compensation, disqualification, forfeiture, restraining order, costs, surcharge, Criminal Courts Charge

Question 34

2.5 Determining sentence 2.5.1 Category

Answer 34

For most offences, the sentencing guidelines set out the appropriate range of sentence based on: (a) Greater culpability and greater harm. (b) Greater culpability and lesser harm, or greater harm and lesser culpability. (c) Lesser culpability and lesser harm. The highest level of offence category would be 1, the lowest 3, and the middle category 2. The guideline will then provide a sentence starting point and range for each category.

Question 35

Example

Answer 35

Let us consider an offence of wounding with intent (s 18 OAPA 1861). V and D were in a house where drugs are bought and used. D alleged his drugs had been stolen and became very aggressive. When V refused to be strip searched D stabbed her in the thigh. She attempted to grab the knife and suffered deep cuts to her fingers as well as a penetrating wound to her thigh. D fled the scene leaving V bleeding. D has previous for drugs. The appropriate category here is Category 2. The use of a knife indicates higher culpability

Question 36

2.5.2 Aggravating and mitigating factors

Answer 36

Once the category has been determined the judge will have a starting point and range of sentence. Aggravating and mitigating factors will then result in an upward or downward adjustment from the starting point.

Question 37

Common aggravating factors Statutory factors

Answer 37

* Previous conviction(s), particularly where a pattern of repeat offending is disclosed * Offence committed whilst on bail for other offences * Offence was racially or religiously aggravated * Offence motivated by, or demonstrating, hostility to the victim based on his sexual orientation (or presumed sexual orientation) or on the victim’s disability (or presumed disability) * Commission of an offence while under the influence of alcohol or drugs * Planning of an offence

Question 38

Statutory factors

Answer 38

* Offenders operating in groups or gangs * ‘Professional’ offending * Commission of the offence for financial gain (where this is not inherent in the offence itself) * High level of profit from the offence * An attempt to conceal or dispose of evidence * Failure to respond to previous sentences * Offence committed whilst on licence

Question 39

Statutory factors

Answer 39

An attempt to conceal or dispose of evidence * Failure to respond to previous sentences * Offence committed whilst on licence * Offence motivated by hostility towards a minority group, or a member or members of it * Use of a weapon to frighten or injure victim * Multiple victims * Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence

Question 40

Statutory factors

Answer 40

* An especially serious physical or psychological effect on the victim, even if unintended * Victim is particularly vulnerable * Deliberate targeting of vulnerable victim(s) * An intention to commit more serious harm than actually resulted from the offence * Location of the offence (for example, in an isolated place) * A sustained assault or repeated assaults on the same victim

Question 41

Statutory factors

Answer 41

* Offence is committed against those working in the public sector or providing a service to the public * Presence of others eg relatives, especially children or partner of the victim * Additional degradation of the victim (eg taking photographs of a victim as part of a sexual offence) * Abuse of a position of trust * Abuse of power

Question 42

Common mitigating factors

Answer 42

Common mitigating factors for any offence: * A greater degree of provocation than normally expected * Mental illness or disability * Youth or age, where it affects the responsibility of the individual defendant * The fact that the offender played only a minor role in the offence * Good character and/or lack of previous convictions * Any personal mitigation

Question 43

Example (continued from above)

Answer 43

There are a number of relevant facts here: * Use of a knife * Lack of remorse * Fleeing from the scene, leaving the victim bleeding * Reasonable recovery from physical injuries but ongoing psychological effect on the complainant * D has no previous convictions involving serious violence * No previous custodial sentences * Incident can be viewed as a relatively isolated incident involving a single blow * D in full time employment * Partner and children

Question 44

Note the following:

Answer 44

* As the use of a knife has been used to indicate higher culpability it cannot also be used also as an aggravating factor. That would be double counting. * The ongoing psychological effect on the complainant, however, was not regarded as indicating greater harm and therefore did not elevate this offence into category 1. Instead, its effect is that of an aggravating factor which raises the seriousness of the offence within the category range. * Although the presence of remorse is often a mitigating factor, its absence is not necessarily to be regarded as an aggravating one.

Question 45

2.5.3 Credit for a guilty plea

Answer 45

Defendants are given ‘credit’ or a discount on their sentence if they plead guilty. The amount of credit depends on when the guilty plea was entered. The Reduction in sentence for a guilty plea guideline says that the first stage of proceedings will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court. However, the safest way the defendant can obtain maximum credit is either by:

Question 46

Credit for a guilty plea

Answer 46

(a) Entering a guilty plea to a summary only or either way offence; or (b) Where the matter is indictable only by indicating that D intends to plead guilty and that D’s defence team will contact the Crown Court to arrange for this to happen imminently.

Question 47

2.6 Passing sentence

Answer 47

When passing sentence, the court must: * Explain to the defendant in non-technical language the sentence that has been passed * Identify the sentencing guidelines that it followed or why it decided not to follow guidelines that exist * Explain why the defendant passes the custody threshold if a custodial sentence is passed * Explain what credit has been given for a guilty plea and why it is at that level * Set out any particular aggravating and mitigating factors that the court considered in arriving at sentence

Question 48

2.7 Summary

Answer 48

This section considered the steps the judge will go through to arrive at an appropriate sentence: The court must bear in mind the general principles and: * Determine which category of the sentencing guidelines applies- the court will assess which category a defendant’s conduct falls into, in terms of culpability and harm. * Adjust the starting point up or down according to aggravating/mitigating factors

Question 49

Reduce sentence to credit any guilty plea:

Answer 49

* Guilty plea at first stage of proceedings – maximum 1/3 * Guilty plea after first stage of proceedings – maximum 1/4 * Guilty plea on the day of trial – maximum 1/10

Question 50

3 Types of sentence: Non custodial This section considers the following non-custodial sentences:

Answer 50

* Bind over * Absolute discharge * Conditional discharge * Fines * Community order

Question 51

Bind Over

Answer 51

It can be imposed in the magistrates’ court and the Crown Court. A bind over, however, stands apart from the other sentencing options in that it can be, and often is, imposed on someone instead of them entering a guilty plea or being tried for an offence. It can even be imposed following an acquittal or on a witness in a case. A person can be bound over by a court to ‘keep the peace’ for a sum of money that they forfeit if they fail to do so. If a defendant breaches the peace they are liable to pay the monetary sum that they were bound over for.

Question 52

3.2 Absolute discharge

Answer 52

S.79 SA2020 An absolute discharge is the lowest form of sentence available to the magistrates’ court and the Crown Court. It is usually imposed to reflect either the triviality of an offence, the circumstances in which an offender came to be prosecuted or special factors relating to the offender. It is in effect no punishment at all since there is nothing that the defendant must do or not do to comply with it

Question 53

3.3 Conditional discharge

Answer 53

S.80 SA 2020 A conditional discharge, as the name suggests, is a discharge (so again, no actual punishment) but with a condition attached to it. The condition is that if the defendant commits another offence during the period specified, they can be re-sentenced for the original offence and sentenced for the new offence. The specified period must be no more than three years. The magistrates’ court and the Crown Court can both impose a conditional discharge.

Question 54

3.4 Fines

Answer 54

The magistrates’ court and the Crown Court can both impose fines. In the Crown Court, the power to fine is for any amount with no upper limit. In the magistrates’ court, fines are set on a standard scale from Level 1 (£200) to Level 5 (unlimited). A fine is a financial penalty that requires a defendant to pay a certain sum of money to the court on conviction. The amount is due immediately and can only be paid in instalments with the agreement of the court.

Question 55

Fines

Answer 55

Fines can be imposed on conviction (guilty plea or verdict) of any offence unless specifically prohibited by statute (eg an offence that imposes a mandatory minimum sentence). A fine can be imposed alongside any other sentence except for a hospital order or alongside a discharge (conditional or absolute) when sentencing for a single offence. Although there is no general prohibition on doing so, it is generally accepted as undesirable to combine a fine with imprisonment

Question 56

Fines as the most common type of sentencing

Answer 56

Fines are the most common type of sentence given by the courts (about 80% of offenders receive a fine) mainly because they are given for lower-level crimes such as minor driving offences and theft. Before imposing a fine, the court can either enquire of the defendant (in person or through their advocate) as to their means. This is usually by asking the defendant to fill in a means form in which they set out their income and outgoings

Question 57

If an offender fails to pay a fine

Answer 57

If an offender fails to pay their fine, they may be brought back before a magistrates’ court (irrespective of which court issues the fine) and as a last resort D can be sentenced to a period of imprisonment in default.

Question 58

3.5 Community Order

Answer 58

A Community Order is a sentence that requires a defendant to comply with one or more requirements to punish and/or rehabilitate a defendant in the community. The court must not make a community order unless it is of the opinion that the offence, or 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 59

s.204 Sentencing Act 2020

Answer 59

The offender must be over 18 and the offence must be punishable with imprisonment. When making a Community Order, the court must impose at least one of the requirements set out in s.201 and Sch 9 SA 2020. Multiple requirements must be compatible one with another.

Question 60

s.204 Sentencing Act 2020

Answer 60

* The maximum length of a community order is three years. * A community order must have at least one requirement, including a punitive element unless a fine is imposed or there are exceptional circumstances that would make it unjust (s.208 (10) – (11)). * Requirement/s must avoid conflict with the offender’s religious beliefs and/or interference with the offender’s times of work and/or education.

Question 61

Multiple requirements must be compatible one with another.

Answer 61

* The court may have regard to any period spent on remand, or qualifying electrically monitored curfew, when determining the restrictions/s on liberty which such a sentence imposes.

Question 62

Multiple requirements must be compatible one with another.

Answer 62

A court must specify a period of operation for a Community Order and that in effect is an overall limit within which the requirements must be completed, unless a specific time period is designated for a particular requirement. 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 63

Multiple requirements must be compatible one with another.

Answer 63

Section 30 SA 2020 states that a court should obtain a pre-sentence report before imposing a Community Order unless it thinks it unnecessary to do so. In practice, the Probation Service write reports and supervise Community Orders so courts will want a report unless it’s obvious that a requirement is suitable.

Question 64

3.5.2 The consequences of breach?

Answer 64

If an offender fails without reasonable excuse to comply with any requirement of their Community Order, they must be warned that their failure is unacceptable. If they fail without reasonable excuse to comply with any requirement of their Community Order again, breach proceedings must be instituted against the offender.

Question 65

3.5.2 The consequences of breach?

Answer 65

The offender will be brought back before the 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. If the offender admits the breach or the court finds that there was a breach following a denial, then it must deal with them in one of the following ways set out in Sch 10 SA 2020:

Question 66

3.5.2 The consequences of breach?

Answer 66

* 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 for the offence in respect of which the order was made. Where the court decides to do this, they must take into account the extent to which the offender has complied with the order.

Question 67

Sch 10 SA 2020:

Answer 67

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. Where the offender has willfully and persistently breached the requirements of the community order, and the court decides to revoke the Community Order and re-sentence the offender for the offence in respect of which the order was made it is important to note that the court does have the power to impose a custodial sentence not exceeding six months, even in respect of an offence which was not an offence punishable with imprisonment.

Question 68

3.6 Summary

Answer 68

This section considered the key non- custodial sentences for adults. A Community Order is a sentence that requires a defendant to comply with one or more requirements to punish and/or rehabilitate a defendant in the community. The court must not make a community order unless it is of the opinion that the offence, or 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 69

3.6 Summary

Answer 69

A person can be bound over by a court to ‘keep the peace’ for a sum of money that they forfeit if they fail to do so. An absolute discharge is the lowest form of sentence available to the magistrates’ court and the Crown Court. A conditional discharge with the condition that if the defendant commits another offence during the period specified, they can be re-sentenced for the original offence and sentenced for the new offence. The magistrates’ court and the Crown Court can both impose fines. There is no limit in the Crown Court.

Question 70

4 Types of sentence: Custodial 4.1 Discretionary sentences

Answer 70

Most imprisonable offences carry discretionary custodial sentences– ie a court may send them to prison provided the custodial threshold under s 230 Sentencing Act 2020 has been reached. 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. Where a custodial sentence is imposed it must be for the shortest possible period to reflect the purpose of the sentence (such as the punishment of offenders, reduction of crime, reform and rehabilitation of offenders, protection of the public and the making of reparation by offenders). The court uses sentencing guidelines to assist in determining the seriousness of an offence and the length of any sentence. The process a court goes though is covered in another section.

Question 71

There are a number of different types of custodial sentences:

Answer 71

* Determinate custodial sentences * Suspended determinate custodial sentences * Minimum sentences for certain offences * Extended determinate sentences (EDS) * Mandatory life sentence for murder * Other statutory life sentences

Question 72

4.2 A determinate custodial sentence (immediate imprisonment)

Answer 72

A prison sentence for a defined period of time eg 6 weeks, 12 months, 3 years or 8 years. These are the most usual custodial sentences passed. Where a defendant falls to be sentenced to a period of imprisonment for more than one offence, the court must consider whether to make the sentences concurrent or consecutive to each other, (a) Two 12–month sentences to run concurrently with each other = a total sentence of 12 months (b) Two 12–month sentences to run consecutive to each other = a total sentence of 24 months

Question 73

4.2 A determinate custodial sentence (immediate imprisonment)

Answer 73

The judge must consider totality when passing custodial sentences for multiple offences and this includes whether sentences run consecutively or concurrently. Generally speaking, offences that arise out of the same events will attract concurrent sentences. Consecutive sentences are generally used where the defendant has done something that needs to be punished separately, eg committing an offence whilst on bail for another offence.

Question 74

4.2.1 Who has the power to impose this sentence?

Answer 74

The magistrates’ court can impose a maximum of: * 6 months for a summary only offence; * 6 months for a single either way offence; or * 12 months for two or more either way offences

Question 75

4.2.1 Who has the power to impose this sentence?

Answer 75

The Crown Court has unlimited powers of imprisonment subject to the statutory maximum for each offence. In both cases it must be noted that these are the maximum powers. If an offence has a statutory maximum below the court’s overall maximum sentencing power, then the court must follow the statute (eg criminal damage £5000 or below is summary only and has a maximum of 3 months). If a defendant has been remanded in custody for any period prior to sentence, then that period is automatically counted towards their sentence. This is administered by the Home Office once the defendant is serving.

Question 76

4.2.1 Who has the power to impose this sentence?

Answer 76

Depending on the length of the sentence there might be a period of post sentence supervision as well. In addition, if a defendant has been on bail with a curfew condition, which was electronically monitored, where the number of hours under curfew was at least nine, they are entitled to credit towards their sentence.

Question 77

4.2.1 Who has the power to impose this sentence?

Answer 77

This is not automatic (unlike time on remand) and the court must expressly state that the time under curfew counts. Each day on bail is calculated as equal to half a day serving a prison sentence and rounded up to the nearest whole number. Note, any days upon which the curfew was breached does not count towards this calculation.

Question 78

4.3 A suspended sentence of imprisonment

Answer 78

A suspended sentence of imprisonment must be for offending that crosses the custody threshold but the defendant does not go into immediate custody and if they fulfil certain criteria, they can avoid prison entirely. A magistrates’ court may suspend any determinate custodial sentence of between 14 days and 6 months. The Crown Court may suspend any determinate custodial sentence of between 14 days and 2 years

Question 79

A suspended sentence has three elements to it:

Answer 79

(a) The custodial term: How long a custodial term they would have received but for it being suspended. (b) The operational period: How long the custodial term is suspended for. This must be between six months and two years. (c) The supervision period: How long the defendant must be supervised by the Probation Service for. This is optional, but if used, must be between six months and two years and equal to or shorter than the operational period. When passing a suspended sentence, the court may (but not must) make the defendant subject to any one or more of the Community Order requirements set out in Schedule 9 SA2020

Question 80

Example of suspended sentence

Answer 80

Mr Smith is told that his 1–year sentence of imprisonment is being suspended for 2 years. His supervision period is 18 months and he has to complete 200 hours of unpaid work. What does that mean? (a) The prison sentence that he is at risk of having to serve is 1 year long. (b) If he breaches this suspended sentence over the next 2 years, then he might have to serve some or all of the 1-year sentence. (c) He will be supervised by the Probation Service for 18 months. (d) He must complete 200 hours of unpaid work.

Question 81

Example of suspended sentence

Answer 81

If Mr Smith does not commit another offence for 2 years, complies with the supervision requirement (ie turns up to appointments with the Probation Service) and does his 200 hours of unpaid work as directed, he will not serve a single day of the 1–year sentence of imprisonment.

Question 82

However if Mr Smith breached the suspended sentence by one or more of:

Answer 82

(a) Committing another offence during the operational period (b) Failing to comply with the Probation Service where there is a supervision period (c) Failing to comply with any Community Order requirement where one has been imposed

Question 83

However if Mr Smith breached the suspended sentence by one or more of:

Answer 83

Where a breach is alleged by virtue of (b) or (c) above, the same process as with breach of a Community Order exists, ie 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 84

However if Mr Smith breached the suspended sentence by one or more of:

Answer 84

If the breach is found proved or is admitted then the court must activate the suspended custodial sentence in part or whole having regard to the extent to which the defendant had complied with the order prior to breach, unless it would be unjust to do so.

Question 85

4.4 Minimum sentences for a third domestic burglary or third Class A drugs offence

Answer 85

For some serious offences, statute prescribes minimum sentences that must be imposed unless there are exceptional circumstances: * Seven years’ imprisonment for a third Class A drug trafficking offence * Three years for a third domestic burglary * Five years for certain firearms offences * Six months for a second offence of possessing a weapon * Six months for threatening with a weapon.

Question 86

4.4.1 Minimum sentences: Third Class A drugs offence

Answer 86

Only the Crown Court has jurisdiction to impose this sentence. For the Class A drug trafficking offence: (a) The defendant must have committed three Class A drug trafficking offences. (b) They must chronologically have occurred in this order: (i) Commission of offence 1 (ii) Conviction (plea/verdict of guilty) of offence 1 (iii) Commission of offence 2 (iv) Conviction (plea/verdict of guilty) of offence 2 (v) Commission of offence 3 (vi) Conviction (plea/verdict of guilty) of offence 3

Question 87

4.4.1 Minimum sentences: Third Class A drugs offence

Answer 87

If convicted of offence 3, the court must pass a minimum custodial sentence of seven years unless it would be unjust to do so. If the defendant enters a guilty plea at the first opportunity then the reduction must be such that the final sentence is still at least 80% of the minimum seven-year term. That is, unless the court states that it would be unjust to pass the minimum term, in which case the final sentence can be below the 80% of the prescribed minimum term.

Question 88

4.4.2 Minimum sentence: Third domestic burglary

Answer 88

For burglary, all of the qualifying offences must be domestic burglaries, ie those where the place burgled was in some way a dwelling. Burglary is ordinarily an either-way offence. Where a defendant faces a third potential conviction, they must be committed to the Crown Court as the prescribed minimum is three years

Question 89

Defendants are often sentences for more than one burglary offence at a time.

Answer 89

A defendant may therefore commit: (a) 12 domestic burglaries and be convicted of those. One of those will count as commission 1 and conviction 1. (b) 18 further domestic burglaries after the first 12, which will count as commission 2 and conviction 2. (c) 20 further domestic burglaries which will count as commission 3 and conviction 3 However, given these are minimum terms the court is, of course, at liberty to pass a longer sentence than the three years. There is a maximum of 20% reduction on a guilty plea

Question 90

4.5 Extended determinate sentence

Answer 90

Extended sentences are imposed in certain types of cases (specified violent, sexual or terrorism offences) and where the court has found that the offender is dangerous. It is the licence period which is extended not the period of custody as an extended licence period is required to protect the public from risk of harm

Question 91

4.5.1 s. 254-257 SA 2020

Answer 91

The extension period must— (a) Be at least 1 year, and (b) Not exceed— (i) 5 years in the case of a specified violent offence; (ii) 8 years in the case of a specified sexual offence or a specified terrorism offence

Question 92

4.5.1 s. 254-257 SA 2020

Answer 92

The overall term of an EDS imposed cannot exceed the maximum term permitted for the offence. A prisoner serving an EDS is eligible to apply for parole at the 2/3 point of the custodial term and must be released at the end of the custodial period.

Question 93

4.6 Mandatory life sentence for murder

Answer 93

Where a defendant is convicted of murder, (which is indictable only) the court must pass a mandatory life sentence. It has no discretion to pass any other sentence. A mandatory life sentence is not available for any other offence than murder. On sentence the court will fix a minimum term. Once that minimum term has expired the defendant can apply for release to the Parole Board who has ultimate discretion as to when a defendant is released. If released the defendant remains on licence for life.

Question 94

4.6 Mandatory life sentence for murder

Answer 94

The minimum term for murder is based on the starting points set out in Schedule 21 of the Sentencing Code. The judge will decide which starting point applies and then adjust it based on the aggravating and mitigating factors present. For the most serious cases of murder, an offender may be sentenced to a life sentence with a ‘whole life order.’ This means that their crime was so serious that they will never be released from prison. There are never usually more than about 100 prisoners serving whole life orders. The remaining starting points are 30, 25 and 15 years.

Question 95

4.7 Statutory life sentences

Answer 95

Offenders who are considered dangerous or who are convicted of a second, very serious offence may be sentenced to imprisonment for life. The provisions are contained in the SA 2020. Unlike the life sentence for murder which is mandatory there is still an element of discretion in the imposition of these life sentences.

Question 96

4.7 Statutory life sentences

Answer 96

There are also offences such as rape or robbery for which the maximum sentence is life imprisonment. It is, however, unheard of for offenders convicted of these offences to get a life sentence without fulfilling the statutory provisions under the SA 2020.

Question 97

4.7.1 Life for dangerous offenders

Answer 97

Where an offender is: * Convicted of an offence set out in Schedule 19 of the Sentencing Code; and * The court is of the view that the offender is dangerous; and * The offence justifies a life sentence.

Question 98

4.7.2 Life for second listed offence

Answer 98

Where an offender is: * Convicted of an offence set out in Schedule 15 of the Sentencing Code; and * Both the sentence condition and the previous conviction condition are satisfied; * Unless it would be unjust to impose a life sentence