Non Custodial Sentences Flashcards
(40 cards)
1
Q
When is order for absolute discharge available
A
- Offender convicted and mandatory sentence requirement does not apply
2
Q
When may court make absolute discharge order
A
- Court may make this order if it is of the opinion that it is inexpedient to inflict punishment, having regard to the circumstances, including
- Nature of offence and
- Character of the offender
3
Q
What can be attached to an absolute discharge order
A
- Imposing disqualification
- Making any of the following orders:
- Compensation order
- Deprivation order
- Confiscation order
- Restitution order
- Unlawful profit order
- Order for costs
- Order under s.46 (criminal courts charge)
4
Q
What can’t be made where an absolute discharge order is
A
- Where an offence is dealt with by way of an absolute discharge, no surcharge is payable
- A football banning order cannot be made where the offence has been dealt with by way of an absolute discharge
5
Q
What is order for conditional discharge
A
- Means an order discharging an offender for an offence subject to the condition that the offender commits no offence during the period specified in the order
6
Q
Availability for a conditional discharge - not available …
A
- Youth caution
- Youth conditional cautions
- Breach of sexual harm prevention order
- Breach of criminal behaviour order
- Offences relating to a serious violence reduction order
- Breach of sexual harm prevention order
7
Q
When may court make a conditional discharge order
A
- Court may make this order if it is of the opinion that it is inexpedient to inflict punishment, having regard to the circumstances, including
- Nature of offence and
- Character of the offender
8
Q
Maximum period for conditional discharge
A
- 3 years
9
Q
Football banning order relationship with absolute and conditional discharges
A
- Can be attached to conditional discharge but not an absolute discharge
10
Q
Breach of conditional discharge
A
- Can only be breached by the conviction of an offender for a further offence committed during the period of the discharge
11
Q
Sentencing for breach of further offences while on conditional discharge
A
- A court dealing with the breach may sentence the offender for the original offence in any manner in which it could have done if the offender had just been convicted before the court for that offence
- CC is limited to the lower courts’ powers
- In relation to an offender who was aged under 18 when first convicted, the court may resentence that offender in any way in which it could deal with the offender if he or she were the same age as when convicted
- Sentencing for the original offence always terminates the conditional discharge itself, but any order for compensation or costs made at the time of the discharge remains valid
12
Q
Fines in the CC
A
- Fine is available to CC instead of or in addition to any other method of dealing with the offender
13
Q
When can fine not be used in CC
A
- Where the offence is one in relation to which a mandatory sentence applies
- In combination with hospital order
- Fine cannot be combined with an absolute or conditional discharge when sentencing for a single offence
14
Q
Duty of CC to fix a term in default
A
- The court must make a term in default order:
- Of imprisonment OR
- Of detention under s.108
- Even though this term must be fixed in every case mentioned above, a failure to fix the term does not invalidate the fine itself
- They need to add this term even if they have been sent case from MC
- The term which is fixed should relate to the whole sum, rather than a single installment
15
Q
Power of MC to impose fines
A
- MC can impose fine if under the relevant offence provision the person is liable to a fine
- MC do not have to impose a default for fines
- Any offence that before 2012 was punishable by a fine of 5k or more is now punishable by an unlimited fine
16
Q
Fines - sentencing principles
A
- Before fixing a fine the court must inquire into the offender’s financial circumstances
- Any fine must reflect the seriousness of the case but must take into account:
- Circumstances of the case, including the financial circumstances of the offender
- Both CC and MC can make a ‘financial circumstances order - before sentencing
- This order requires the individual to face the court such a statement of their assets and any other financial circumstances as the court may require
- Failure to do so is liable on summary conviction to fine not exceeding level 3
- If they do so but they intentionally lie then it’s up to level 4 fine on summary conviction
17
Q
Principles of reduction in relation to fines - plea/time spent in custody
A
- Where the effect of a guilty plea may be to reduce a community sentence to a fine, in which case there should normally be no further reduction of the fine to reflect the plea of guilty
- In fixing the appropriate fine upon an offender who has spent a significant period of time in custody on remand it seems that some credit should normally be given although the level of adjustment to the otherwise appropriate fine is a matter for the court
18
Q
Imposition of max fine
A
- The imposition of the maximum available fine should be reserved for the most serious instances of the offence which are reasonably likely to occur
- The existence of significant mitigation, such as the offender’s guilty plea, should normally preclude the imposition of the maximum fine
19
Q
Taking into account the financial circumstances of the family when imposing fines
A
- It is well established that while a fine is meant to be a punishment and it is perfectly proper for the offender to have to endure a degree of hardship in paying the fine, since ‘one of the objects of the fine is to remind the offender that what he has done is wrong’, the imposition of a fine which is beyond the means of the offender is wrong in principle
- The requirement that the court should adjust the level of the fine in accordance with the offender’s means entails that the court should not assume that someone other than the offender will be paying the fine
20
Q
Switching fines to custodial sentence due to means of offender
A
- Where the offender lacks the means to pay the level of fine which is proportionate to the seriousness of the offence, it is contrary to principle to impose a custodial sentence instead
- Where the offender is well-off and paying the fine proportionate to the offence would cause little inconvenience, it is contrary to principle to impose a custodial sentence instead
- Level of the fine can be raised in this case, but it must still be proportionate to the offence
21
Q
Installments for paying fine
A
- Normally a fine should be of an amount that is capable of being paid within 12 months, though there may be exceptions to this
22
Q
Criteria for imposition of a community order
A
- Community order is an order imposed on an offender aged 18 or over when convicted
- Court must not make community order unless it is of the opinion that:
- The offence or combination of the offence and associated offence was serious enough to warrant the making of such order
- Community order is only available if the offence is punishable with imprisonment
23
Q
When can community order not be imposed
A
- Not available where a mandatory sentence requirement applies
- Cannot be made in combination with a hospital order or guardianship order in respect of the same offence
- A court may not make a community order in respect of an offence if it makes a suspended sentence order in respect of that offence or any other offence of which the offender is convicted at that time or any other offence for which it deals with the offender (s. 203)
- It is contrary to principle for a judge to seek to avoid the two-year limit on the imposition of a suspended sentence by imposing a community order instead, reserving the case, and indicating that in the event of breach a custodial sentence in excess of two years will be imposed
24
Q
Community order requirements
A
- unpaid work, rehabilitation activity, programme, prohibited activity, curfew, exclusion, residence, mental health treatment, drug rehabilitation, alcohol treatment, electronic compliance monitoring and electronic whereabouts monitoring requirements
25
Unpaid work requirement
* The number of hours of unpaid work which may be ordered by the court must be not less than 40 and not more than 300
* A failure to complete the required number of hours within the normal 12 months places the offender in breach of the community order, and the probation service may then apply to the court either to initiate breach or to extend the 12-month period
26
Rehabilitation activity requirement
* A requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both
* The court does not prescribe the activities to be undertaken but must specify the maximum number of days the offender must complete
* The responsible officer must obtain the agreement of any person other than the offender whose cooperation is necessary to comply with the requirement
27
Programme requirement
* Requirement in accordance with instructions given by the responsible officer to participate in an accredited programme at a particular place on a number of days which must be specified in the order
28
Prohibited activity requirement
* Curfew periods must be not less than 2 and no more than 20 hours in any given day
* Must not amount to more than 112 hours in any period of 7 days
* Curfew order within a community order may not specify periods which fall outside the period of 2 years when the order was made
* Court must normally impose an electronic monitoring requirement, unless the court considers it inappropriate to do so
29
Exclusion requirement
* Prohibits them from entering place, area or away from specific people during specified time period
* If in relation to person then that person must also be given copy of the order
* An exclusion requirement in a community order cannot last longer than two years
* Court must normally impose an electronic monitoring requirement, unless the court considers it inappropriate to do so
30
Residence requirement
* Order can in addition to residence at one location allow residence at some other place with the permission of the responsible officer
* Can’t be a hostel or other institution except on recommendation of an officer of a local probation board or officer of a provider of probation services
31
Mental health treatment requirement
* Must not be made unless the offender has expressed willingness to comply
* Must be based on evidence from a registered medical practitioner that:
* The mental condition of the offender is such as requires treatment
* Treatment is available
* Treatment must be with the consent of a person or organisation providing it
* Treatment may include residence at a specified hospital or care facility
32
Drug rehabilitation requirement
* Offender must express willingness to comply
* The court must be satisfied that the offender is dependent on or has a propensity to misuse drugs
* Includes treatment for a specified period and may include testing
* Cannot be imposed unless a suitably qualified individual recommends it and agrees to supervise it
33
Alcohol treatment requirement
* Offender must express willingness to comply
* Must be based on medical evidence that the offender is dependent on alcohol and treatment is appropriate
* Cannot be imposed unless a suitably qualified individual recommends it and agrees to supervise it
34
Electronic compliance monitoring requirement
* Enables the court to monitor an offender’s compliance with other requirements of a community order
* Imposes electronic monitoring to track curfew, location, or attendance
* Court must consider suitability of offender and practicality of monitoring
35
Electronic whereabouts monitoring requirement
* Enables the court to monitor the location of the offender for a specified period
* Does not require the offender to remain at or away from any particular place
* Designed to encourage compliance with other requirements and provide deterrent effect
36
Length of a community order
* Community orders are available for up to 3 years
* The total duration of requirements imposed must not exceed this limit
37
Restrictions on combining requirements
* Court must ensure that requirements are compatible
* Should not impose conflicting or impossible-to-comply-with conditions
* Must consider whether cumulative effect is proportionate
38
Enforcement of community orders
* If an offender fails to comply without reasonable excuse:
* Warning may be given
* Breach proceedings may be initiated
* Court can amend the order, fine the offender, or revoke the order and re-sentence
39
Sentencing for breach of community orders
* Court may deal with the offender in any way it could have for the original offence
* Can impose custody where appropriate
* Must consider proportionality and seriousness of the breach
40
Revocation and amendment of community orders
* Orders may be amended to reflect change in circumstances
* May be revoked upon application
* New sentence may be substituted for remaining term if revoked
