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Flashcards in LG5 Deck (54):

Sentencing procedure (including committal to the Crown Court for sentence);
Sentencing principles;
Sentences available in the case of adult offenders.

purposes of sentencing and sentencing guidelines: E1.1-E1.3
assessment of seriousness, reduction in sentence for guilty plea, aggravating and mitigating features, the totality principle and prevalence: E1.7-1.9 and E1.14-1.22
pre-sentence reports, medical reports, and victim personal statements: E.1.27, E1.30 and E1.33
indications as to sentence: D12.60-12.65
sentencing in the Crown Court: D20.1-20.4, D20.6-20.11, D20.14, D20.23-20.27, D20.30, D20.45, D20.52-20.53, D20.56, D20.59, D20.66-20.68, D20.72, D20.76, D20.92-20.93 and D20.103
sentencing procedure in the magistrates’ courts: D23.1, D23.2, D23.6-23.9, D23.14, D23.16-23.18 and D23.20-23.22
committal for sentence: D23.31, D23.44 and the first sub-paragraph of D23.57


Non custodial sentences

absolute and conditional discharges: E12.1, E12.2-12.3 and E12.5
fines and the consequences of default: E15.1-15.3, E15.8, E15.14, E15.16, E15.18-15.19 and E15.21-15.22
community sentences and the consequences of breach of a community sentence: E8.2, E8.7, E8.9, E8.12, E8.13, E8.15-8.19, E8.21-8.22, E8.25 and E8.28-8.35
binding over orders: E13.1-13.3


Custodial sentences

custodial sentences in the Crown Court and magistrates’ courts: E2.1 and E2.5
restrictions on imposing custodial sentences: E2.7-2.8
length of sentence: E2.9-2.12, E2.16, E2.19-2.21 and E2.23
mandatory and minimum sentences: E3.1-3.2, E5.1, E5.3-5.4 and E5.8
suspended sentences: E6.1, E6.3, E6.5-6.8, E6.11-6.12 and E6.14


Ancillary orders and costs on conviction

costs on conviction: first sub-paragraph of D33.20, the first sub-paragraph of D33.22, and the summary of ove in D33.24
compensation: E16.1 and E16.15
forfeiture and deprivation orders: E18.1, E18.2 and E18.7
registration of sex offenders: first sub-paragraph of paragraph E23.1
confiscation under the Proceeds of Crime Act 2002: E19.8


Dangerous offender provisions

specified offences: E4.1 and 4.3
assessment of dangerousness: E4.19


Statutory purposes of sentencing CJA 2003 s 142 (1)

Punishment of offenders;
Reduction of crime (including reduction by deterrence);
Reform and rehabilitation of offenders;
Protection of public;
Making of reparation by offenders to persons affected by their offences.


Sentencing Guidelines

Sentencing Council (Coroners and Justice Act 2009, ss 118-135): http://www.sentencingcouncil.org.uk/
Section 125(1): the court ‘must’ follow any sentencing guidelines relevant to the offender's case unless ‘satisfied that it would be contrary to the interests of justice to do so’.
Three types of Guideline:
general principles;
specific offences (Crown Court);
Magistrates’ Court Sentencing Guidelines.
Court of Appeal guideline judgements.


The structure of the guidelines:

Offence category

Sentencing Council (Coroners and Justice Act 2009, ss 118-135): http://www.sentencingcouncil.org.uk/
Section 125(1): the court ‘must’ follow any sentencing guidelines relevant to the offender's case unless ‘satisfied that it would be contrary to the interests of justice to do so’.
Three types of Guideline:
general principles;
specific offences (Crown Court);
Magistrates’ Court Sentencing Guidelines.
Court of Appeal guideline judgements.


Adjournments after conviction

Magistrates’ courts:
4 weeks if remanded on bail, or
3 weeks if remanded in custody (see s 10(3) MCA 1980)

Crown Court:
normally adopts same periods.


Sentencing a summary offence following a Guilty plea in the Magistrates’ Court

Guilty plea
Prosecutor summarises facts
Court may adjourn for a pre-sentence report
Plea in mitigation
Sentence is passed


Sentencing an either way offence following a guilty plea in the Mags Court:

Guilty plea
Prosecutor summarises facts
Decision - Mags ct sentencing powers sufficient?

If yes:
- court may adjourn for a pre sentence report
- plea in mitigation
- Mags court sentences D

If no:
- Mags court commits D to CC for sentence
- possibly adjourn for PSR
- Prosecutor summarises facts
- Plea in mitigation
- Crown Court judge sentences D


Sentencing an either way offence after a Guilty verdict in the Magistrates’ Court

Guilty verdict
Decision: Mags sentencing powers sufficient? Look at offence and offender AND sentencing guildelines

If Yes:
- Court may adjourn for a pre-sentence report
- Plea in mitigation
- Mags Court sentences D

If No
- Mags Court commits D to CC for sentence
- Possible adjourn for PSR
- Prosecutor summarises facts
- Plea in mitigation
- CC judge sentences D


Sentencing in the Crown Court following committal for sentence, guilty plea, or guilty verdict

D commited for sentence by the mags or pleads giulty/is found guilty in CC

Prosecutor summarises facts (unless sentence being passed immediately after guilty verdict

Court may adjourn for a pre-sentence report

Plea in mitigation

Sentence is passed


Pre-sentence reports

CJA 2003 s 156

A PSR is required in order to consider:
custody: the seriousness of the offence and what term is commensurate with that seriousness;
community sentence: the seriousness of the offence and restrictions on the offender’s liberty are commensurate with that seriousness.
Disclosure to defence and prosecution (CJA 2003, s 159).
Doing without a PSR:
Adults: if the court decides a PSR is ‘unnecessary’ (s 156(4));
Juveniles: if the court decides a PSR is ‘unnecessary’ and there is a previous PSR available (s 156(5)).


Victim personal statement

Criminal Practice Direction VII, paras F.1-F.3; R v Perkins [2013] EWCA Crim 323:
Gives victims a formal opportunity to say how a crime has affected them.
Should be considered and taken into account by the court prior to sentencing.
The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim as to what the sentence should be are therefore not relevant, unlike the consequences of the offence on them.


What if D wants to plead guilty, but says that the offence was not as serious as the prosecution contend?

The ‘Newton’ hearing:
Newton (1982) 77 Cr App R 13: where D pleads guilty but there is a significant difference between the prosecution version of the facts and the defence version (where D is guilty on either version), the judge may either:
accept the defence version, or
hear evidence, and then making a finding of fact as to which is the correct version;
but cannot accept prosecution version without first hearing evidence, unless the defence version is ‘manifestly false’.


Newton hearings (continued)

Standard of proof:
beyond reasonable doubt (Kerrigan (1993) 14 Cr App R(S) 179).
Failure to hold a Newton hearing:
D gets the benefit of the doubt (Mohun (1993) 14 Cr App R(S) 5).
Counsel have a responsibility to alert the court to the need for a Newton hearing: Tolera [1999] 1 Cr App R 29.


Newton hearings (third option)

Third option: empanelling a jury instead (but only to try an additional charge which encapsulates the way in which the prosecution say the case is more serious than the defence are willing to accept):
Gandy (1989) 11 Cr App R(S) 564;
Eubank [2001] EWCA Crim 891; [2002] 1 Cr App R (S) 4;
Dowdall (1992) 13 Cr App R(S) 441.
Summary of key principles:
R v Underwood [2004] EWCA Crim 2256; [2005] 1 Cr App R 13.
Note that the ‘Newton’ principle applies in magistrates’ courts as well (CrimPR r 24.11(5)).


What will I get if I plead guilty?

R v Goodyear 2005

R v Goodyear [2005] EWCA Crim 888; [2005] 1 WLR 2532
Criminal Practice Direction VII, C.1-C.8
Any advance indication of sentence given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought.
The judge should not give an advance indication of sentence unless one is sought by D.
The judge retains an unfettered discretion to refuse to give an indication.
Any sentence indication should normally be sought at a PTPH.
Once given, an indication is binding on the judge who gave it and any other judge who becomes responsible for the case.



Re indication where dispute re basis of plea

An indication should not be given where there is a dispute as to the basis of plea. If there is an agreed basis of plea, it must be put into writing (and is subject to approval by the judge).
The Judge should never be invited to give an indication on the basis of a ‘plea bargain’.
If, after a reasonable opportunity to consider the indication, D does not plead guilty, the indication ceases to have effect.
The fact that D sought an indication is inadmissible in any subsequent trial should he maintain a ‘not guilty’ plea.
The defence advocate should not seek an indication without written authority from D, and must ensure that D fully appreciates that:
he should not plead guilty unless he is guilty, and
The A-G may be able to refer an unduly lenient sentence to the Court of Appeal.


Statutory factors in sentencing CJA 2003

Section 143(1): ‘the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused’.
Aggravating factors in the CJA 2003:
s 143(3): offence committed while D was on bail for another offence [even if D was subsequently acquitted of that other offence];
s 145: racial/religious aggravation;
s 146: disability; sexual orientation; transgender identity.


D's previous convictions CJA 2003 s 143 (2)

“… the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to:
(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) the time that has elapsed since the conviction”.

Thus, relevant previous convictions make the present offence more serious.


Guilty pleas

CJA 2003, s 144: in determining the sentence to impose on a D who has pleaded guilty, the court must take into account:
(a) the stage in proceedings at which offender indicated intention to plead guilty, and
(b) the circumstances in which the indication was given.
A guilty plea usually results in a reduced sentence.
Sentencing Council Guidelines (revised, 2007): http://www.sentencingcouncil.org.uk/publications/item/reduction-in-sentence-for-a-guilty-plea-definitive-guideline/


Why give sentencing discount

Guilty plea:
avoids the need for a trial (enabling other cases to be disposed of more expeditiously),
shortens the gap between charge and sentence,
saves considerable cost, and
saves victims and witnesses from concern about having to give evidence (in the case of an early plea)


Discount: not just length of custody

Where a guilty plea is amongst the factors leading to the imposition of a non-custodial sentence, there is no need to apply a further reduction on account of the guilty plea.
A similar approach is appropriate where reduction for a guilty plea is amongst the factors leading to the imposition of a financial penalty or discharge instead of a community order.
SGC, para 2.3.


Sliding scale discount

Maximum of one-third reduction where guilty plea was entered at the first reasonable opportunity:
i.e. the plea before venue hearing in the magistrates’ court, or at the first hearing in the Crown Court;
CrimPD para 3A.17: in a case in which D, not having done so before, indicates an intention to plead guilty to his representative after being sent for trial but before the PTPH, the defence representative will notify the Crown Court and the prosecution forthwith.
Maximum of one-quarter where a trial date has been set.
Maximum of one-tenth for a guilty plea entered at the ‘door of the court’ or after the trial has begun.
Note: if the court holds a Newton hearing and D’s version of events is rejected, this should be taken into account in determining the level of reduction.


First reasonable opportunity

R v Caley [2012] EWCA Crim 2821:
The first reasonable opportunity is normally either at the magistrates' court or immediately on arrival in the Crown Court: either can properly attract the maximum percentage reduction (one third) provided for by the SGC Guidelines.


What if prosecution case is overwhelming

“… it may not be appropriate to give the full reduction that would otherwise be given. Whilst there is a presumption in favour of the full reduction being given where a plea has been indicated at the first reasonable opportunity, the fact that the prosecution case is overwhelming without relying on admissions from the defendant may be a reason justifying departure from the guideline.
Where a court is satisfied that a lower reduction should be given for this reason, a recommended reduction of 20% is likely to be appropriate where the guilty plea was indicated at the first reasonable opportunity.”
SGC, paras 5.3 & 5.4.


Specimen/sample counts

Clark [1996] 2 Cr App R(S) 351; Kidd [1998] 1 WLR 604:
D is not to be sentenced for an offence unless it has been proved against him by admission or verdict, or he has admitted it and asked the court to take it into consideration when passing sentence for an offence of which he has been convicted.
If D admits a course of offending, no problem.
If D denies a course of offending, the prosecution will have to charge sufficient offences fairly to reflect the criminality of the offending (to enable the court to pass an appropriate sentence even without treating the counts as samples or specimens).


Offences taken into consideration


Miles [2006] EWCA Crim 256; Lavery [2008] EWCA Crim 2499; Sentencing Council Guideline on TICs:
D can ask for offences to be ‘taken into consideration’.
This doesn’t count as a conviction, and no separate sentence is passed in respect of TICs.
The court should pass a sentence in respect of the offences to which D had pleaded guilty which reflects all the offending behaviour (including the TICs), but limited to the statutory maximum for the conviction offence.
The presence of TICs should generally be treated as an aggravating feature that justifies an upward adjustment from the starting point (aggravation); BUT the frank admission of a number of offences is an indication of D’s remorse (and therefore mitigation).


Fines CJA 2003 s 164

Fixing the amount of a fine:
What fine is appropriate given seriousness of offence?
Is there personal mitigation which enables fine to be reduced?
Should actual fine be higher or lower because of offender’s means?


Mags powers - maximum fines

Offences that are triable either way: unlimited.
Summary offence: based on “levels”:
1: £200 (max); 2: £500 (max);
3: £1,000 (max); 4: £2,500 (max);
5: unlimited.
No maximum aggregate where the court is sentencing for more than one offence.



Absolute discharge (no penalty is imposed);
Conditional discharge for specified period of up to 3 years (no penalty unless D re-offends during that period):
Breach of conditional discharge: D can be re-sentenced for the original offence (as well as being dealt with for the later offence).


Community orders: CJA 2003 s 177

Maximum duration: 3 years;
The components must be compatible with each other;
Threshold: the offence(s) must be sufficiently serious to warrant such a sentence (CJA 2003, s 148(1));
The requirements must be such as are most suitable for this offender (s 148(2)(a));
The restrictions on liberty must be commensurate with the seriousness of the offence(s) (s 148(2)(b));
The court may have regard to any period of remand in custody in connection with offence (s 149).
A community order must include at least one requirement imposed for the purpose of punishment, or the court must impose a fine for the offence in respect of which the community order is made, unless there are exceptional circumstances relating to the offence or the offender which would make it unjust to do so (s 177(2A, (2B)).


The "pick and mix" menu

unpaid work requirement (40-300 hours);
rehabilitation activity requirement (supervision by probation officer and/or specified activities, which may include restorative justice);
programme requirement (systematic set of activities);
prohibited activity requirement (prohibition on participation in specified activities);
curfew requirement (2-16 hours per day; max 12 months);
exclusion requirement (prohibition from entering specified places; max 2 years);
residence requirement (residing at specified place);
foreign travel prohibition requirement;
mental health treatment requirement (in-patient or out-patient)
drug rehabilitation requirement (in-patient or out-patient);
alcohol treatment requirement (in-patient or out-patient);
where the offender is aged under 25, attendance centre requirement (total of 12-36 hours; max 3 hours at a time);
electronic monitoring requirement (mandatory where a curfew/exclusion requirement is included).


Breach of community orders:

CJA 2003 Sch 8

First stage: warning from the probation service;
Second stage: summons to attend court (no discretion to issue a second warning: West Yorkshire Probation Board v Robinson & Tinker [2009] EWHC 2468);
Breach must be proved, beyond reasonable doubt (if not admitted): West Yorkshire Probation Board v Boulter [2005] EWHC 2342; 169 JP 601;
Failure without reasonable excuse to comply: the court may –
amend the order to impose more onerous requirements;
revoke the order and re-sentence (a custodial sentence may be imposed even if the original offence did not cross the custody threshold);
wilful and persistent failure to comply where the original offence was not imprisonable: revoke the order and impose up to 6 months’ custody;
Impose a fine up to £2,500.


Comission of further offences whilst subject to a community order

If the order was made by a magistrates’ court, the magistrates can revoke the order, or revoke and re-sentence for original offence.
If the order made by the Crown Court, the magistrates can commit the offender to the Crown Court (on bail or in custody), and Crown Court may then revoke the order, or revoke and re-sentence for original offence.


CJA 2003 s 152 (2)

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or 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”.



SGC Guidance

Overarching principles

Para 1.32: Clear intention to reserve prison as a punishment for the most serious offences;
Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable: custody can still be avoided in light of personal mitigation or where there is a suitable community sentence which provides sufficient restriction (by way of punishment) while addressing the rehabilitation of the offender to prevent future offending.


SGC Prevalence

Para 1.39: the key factor in determining whether sentencing levels should be enhanced in response to prevalence is the level of harm being caused in locality.
There must be supporting evidence (see also Oosthuizen [2005] EWCA Crim 1978).
Enhanced sentences should be exceptional and in response to exceptional circumstances.
The court must sentence within the sentencing guidelines once prevalence has been addressed.


CJA 2003 s 152 (3)

Nothing in subs (2) prevents the court from passing a custodial sentence on the offender if:
(a) ‘he fails to express his willingness to comply with a requirement which is proposed by the court to be included in a community order and which requires an expression of such willingness’ [mental health treatment, drug rehabilitation or alcohol treatment].


CJA 2003 s 153 (2)

[Apart from mandatory minimum sentence cases]
“The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it”.
R v Ollerenshaw [1999] 1 Cr App R(S) 65: When a court is considering imposing a comparatively short period of custody (12 months or less), it should generally ask itself, particularly where D has not previously been sentenced to custody, whether an even shorter period might be equally effective in protecting the interests of the public, and punishing and deterring the criminal.


Other considerations for custodial sentences

Concurrent or consecutive – a single series of incidents, or unrelated offences?
Totality (CJA 2003, s 166(3)(b)): it is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences (see Sentencing Council Guideline: http://www.sentencingcouncil.org.uk/publications/item/offences-taken-into-consideration-and-totality-definitive-guideline/).
Effect of time spent on remand: CJA 2003, s 240ZA: ‘the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence’.
Section 240A: Remand on bail with curfew for at least 9 hours per day: offender receives credit at the rate of a half a day for every day spent subject to a qualifying electronically monitored curfew.


Magistrates custodial powers

Imprisonable summary offences:
up to 6 months per offence;
Maximum 6 months in total.

One either-way offence:
Up to 6 months per offence;

Two or more either-way offences:
Up to 6 months per offence;
Maximum aggregate of 12 months in total.


Release on licence

CJA 2003, s 244: automatic release on licence once the prisoner has served the ‘requisite custodial period’, i.e. one-half of the sentence.
CJA 2003, s 249: the licence remains in force for the remainder of the sentence (i.e. the second half).
CJA 2003, s 256AA: where the sentence is less than 2 years, the offender must comply with ‘supervision requirements’ during the ‘supervision period’, which begins with the expiry of the sentence, and ends 12 months after the offender has served the requisite custodial period (i.e. 12 months after the half-way point of the sentence).
Early release should not be taken into account when deciding what sentence to impose (Round [2009] EWCA Crim 2667).


Suspended sentences

CJA 2003, ss 189-193:
Custodial sentence of 14 days – 2 years;
Suspended for 6 months – 2 years (‘operational period’);
Additional requirements [the same as those which may be included in a community order] may be added, to be carried out during the ‘supervision period’, which must end not later than operational period;
A suspended sentence can be passed only if the offence passes the custody threshold.


Breach of suspended sentence or re-offending CJA 2003 sch 12

If either:
the offender has failed, without reasonable excuse, to comply with any of the community requirements of the suspended sentence order, or
the offender is convicted of an offence committed during the operational period of a suspended sentence


Options for Court

(a) order that the suspended sentence takes effect with the original term (the custodial period) unaltered [usually served consecutively with the sentence for the ‘breach’ offence]; or
(b) order that the suspended sentence takes effect, but with a shorter period of custody; or
(c) impose a fine of up to £2,500
(d) amend the order by:
imposing more onerous community requirements,
extending the supervision period, or
extending the operational period.
The court must do (a) or (b) unless “unjust” to do so in view of all the circumstances.


SGC Guidance on action

If the new offence is committed near the end of the operational period, it may be more appropriate to amend order rather than activate custodial term (para 2.2.19).
If the new offence is of a less serious nature than the offence for which the suspended sentence was passed, that may justify activating the suspended sentence with a reduced term or amending the terms of the order (para 2.2.20).
If the new offence is non-imprisonable, the court should consider whether it is appropriate to activate the suspended sentence at all (para 2.2.22).


Mandatory minimum sentences

Mandatory minimum of 7 years for 3rd conviction of trafficking in class A drugs unless particular circumstances relating to any of the offences or to the offender would make this unjust (PCC(S)A 2000, s 110);
Mandatory minimum of 3 years for 3rd domestic burglary conviction unless particular circumstances relating to any of the offences or to the offender would make this unjust (PCC(S)A 2000 s 111);
In both cases, a guilty plea may reduce the sentence below the statutory minimum, but not below 80% of that statutory minimum: s 144(2) CJA 2003.


Dangerous offenders: extended sentences

CJA 2003, s 226A: Where -
The court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences, and
D has a previous conviction for an offence listed in Schedule 15B or the appropriate custodial term for the present offence would be at least 4 years:
The court may impose an extended sentence, i.e.:
the appropriate custodial term, and
an ‘extension period’ for which the offender will be on licence (max. extension: 5 years for specified violent offences, 8 years for specified sexual offences).


Assessment of dangerousness

CJA 2003, s 229: the court -
must take into account all such information as is available to it about the nature and circumstances of the offence,
may take into account all such information as is available to it about the nature and circumstances of any other offences of which the offender has been convicted,
may take into account any information which is before it about any pattern of behaviour of which any of these offences forms part, and
may take into account any information about the offender which is before it.


Compensation orders

PCC(S)A 2000, s 130: compensation for any personal injury, loss or damage resulting from an offence or TIC.
A court must consider making a compensation order in any case where it is empowers to do so (and must give reasons if it decides not to make a compensation order).
Amount: such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the accused or the prosecutor.
Section 131: max £5,000 per offence if (but only if) D is under 18 (i.e. unlimited amount in the case of adult offenders).


Other ancillary orders

PCC(S)A 2000, s 143: deprivation order – forfeiture of property used for the purpose of committing/facilitating the commission of any offence. [Other legislation enables forfeiture in specific circumstances.]
Sexual Offences Act 2003: notification of personal details to police.
Proceeds of Crime Act 2002: confiscation orders – the court determines whether D has benefited from criminal conduct and, if so, how much; a confiscation order is made for the amount of D’s benefit, or the value of D’s assets (if less).