Sentencing Flashcards

Question

Aggravating Factors: Hostility

Answer 1

This section applies where a court is considering the seriousness of an offence which is aggravated by— (a) racial hostility, (b) religious hostility, (c) hostility related to disability, (d) hostility related to sexual orientation, or (e) hostility related to transgender identity. this does not apply to specific offences which are related to racially or religiously aggravated offences

Answer 2

If the offence has a terrorist connection, the court— - must treat that fact as an aggravating factor, and - must state in open court that the offence is so aggravated. For the purposes of this section, an offence has a terrorist connection if the offence— - is, or takes place in the course of, an act of terrorism, or - is committed for the purposes of terrorism. AND - was committed on or after the day on which section 1 of the Counter-Terrorism and Sentencing Act 2021 came into force, - is punishable on indictment with imprisonment for more than 2 years, and - is not specified in Schedule A1.

Answer 3

- Offence committed whilst on bail/license for other offences - Failure to respond to previous sentences - Offence was aggravated by hostility towards race, religion, sexual orientation, disability, members of minority groups. - Previous conviction(s), particularly where a pattern of repeat offending is disclosed - Planning of an offence - An intention to commit more serious harm than actually resulted from the offence - 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 warnings or concerns expressed by others about the offender's behaviour - Deliberate targeting of vulnerable victim(s) - Commission of an offence while under the influence of alcohol or drugs - Use of a weapon to frighten or injure victim - Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence - Abuse of power/position of trust - Multiple victims - An especially serious physical or psychological effect on the victim, even if unintended - A sustained assault or repeated assaults on the same victim - Victim is particularly vulnerable - Location of the offence (for example, in an isolated place) - 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) - In property offences, high value (including sentimental value) of property to the victim, or substantial consequential loss (eg where the theft of equipment causes serious disruption to a victim's life or business)

Answer 4

- 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 - Any personal mitigation - Good character and/or lack of previous convictions - remorse - addictions and D is taking measures to address addiction which is causing offending behaviour. - sole or primary carer on dependents and relatives

Answer 5

Court can treat the prevalence of certain criminal behaviour in a certain area as an aggravating factor. A court must not increase a sentence due to the prevalence of such an offence unless it has evidence from a local Criminal Justice Board or a ‘Community Impact Statement’ it must be exceptional, just and proportionate to do so.

Answer 6

* 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

Answer 7

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 'one-off' 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. 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.

Answer 8

12 months with either-way offences

Answer 9

- If someone is aged 18 or over the court must obtain and consider a pre-sentence report unless it considers it to be unnecessary to do so - If someone is aged below 18 then the court must obtain and consider a pre-sentence report unless there is a previous pre-sentence report of the offender and the court considers that when involving the circumstances of the case and considering the most recent presentence report that it is unnecessary to obtain a PSR - Where the curt did not obtain and consider a PSR, no custodial or community based sentence is invalidated on that basis solely

Answer 10

- Where victims can put together the impact the criminal; actions have had on their life in order for the sentencer to reflect this when passing down their sentence. It is not there to suggest the sentence - To show the level of harm suffered o Defence should be allowed to see the VPS and respond to it o They help for many psychological harms the victim is suffering an no need for expert reports

Answer 11

- The more recent and serious the offence, the more likely the court is to get a report - Where there are mentally disordered offenders, the court cannot pass a custodial sentence unless they have obtained a medial report. Only where the d=sentence is fixed are they allowed to not obtain a report - Medical report to be tendered as evidence - Copy to be given to counsel - Unrepped persons should have the contents read out by p[aren’t or guardian or by medial expert - They may be cross-examined - For a hospital order to custodial sentence a report written and signed by two medical practitioners is required

Answer 12

Judicial indications of sentence o Where offenders have had not genuine choice of plea and they enter a plea of guilty, the conviction may be quashed as it is nullified o Plea must be voluntary The Goodyear Approach: o Correct procedure for judicial indications of sentence is set out in Goodyear o They may give the maximum sentence possible had the defendant enter a guilty plea

Answer 13

the principal feature of an appropriate indication of sentence is that an advance indication should be sought by the defence, and not promulgated by the judge

Answer 14

an indication should not be given that a trial would result in a much longer sentence compared to the one offered if the accused pleads guilty.

Answer 15

(1)A court should not give an indication of sentence unless one has been sought by the accused. (2)However, the court remains entitled to exercise the power to indicate that the sentence, or type of sentence, on the accused would be the same whether the case proceeds as a plea of guilty or goes to trial, with a resulting conviction. Where the sentence will vary according to plea, the court should only give an indication as to the sentence following a guilty plea. (3)Where an indication is sought, the court may refuse altogether to give an indication, or may postpone doing so, with or without giving reasons. (4)Where the court has it in mind to defer an indication, the probability is that the judge would explain the reasons, and further indicate the circumstances in which, and when, he or she would be prepared to respond to a request for a sentence indication. (5)If the court refuses to give an indication (as opposed to deferring it), it remains open to the defence to make a further request for an indication at a later stage. (6)Once an indication has been given, it is binding and remains binding on the judge who has given it, and it also binds any other judge who becomes responsible for the case. (7)If, after a reasonable opportunity to consider his or her position in the light of the indication, the accused does not plead guilty, the indication will cease to have effect. (8)Where appropriate, there must be an agreed, written basis of plea, otherwise the judge should refuse to give an indication.

Answer 16

(1)Subject to the court’s power to give an appropriate reminder to the advocate for the accused, the process of seeking a sentence indication should normally be started by the defence. (2)Whether or not such a reminder has been given, the accused’s advocate should not seek an indication without signed written authority that the client wishes to seek an indication. (3)The advocate is personally responsible for ensuring that the client fully appreciates that (a) he or she should not plead guilty unless he or she is guilty, (b) any sentence indication given by the court remains subject to the entitlement of the A-G to refer an unduly lenient sentence to the Court of Appeal, (c) any indication given by the court reflects the situation at the time when it is given and if a guilty plea is not tendered in the light of that indication, the indication ceases to have effect, and (d) any indication which may be given relates only to the matters about which an indication is sought. (4)An indication should not be sought while there is any uncertainty between the prosecution and the defence about an acceptable plea or pleas to the indictment, or the factual basis relating to any plea. (5)Any agreed basis should be reduced into writing before an indication is sought. (6)Where there is a dispute about a particular fact which counsel for the accused believes to be effectively immaterial to the sentencing decision, the difference should be recorded for the court to consider. (7)The court should never be invited to indicate levels of sentence which depend on possible different pleas. (8)In the unusual event that the accused is unrepresented, the accused would be entitled to seek a sentence indication of his or her own initiative, but it would be wrong for either the court or prosecuting counsel to take any initiative in this regard that might too readily be interpreted as or subsequently argued to have been improper pressure.

Answer 17

(1)As the request for indication comes from the defence, the prosecution are obliged to react to, rather than initiate the process. (2)If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceed to seek an indication, which the court appears minded to give, prosecuting counsel should remind the court that an indication of sentence should normally not be given until the basis of the plea has been agreed, or the judge has concluded that the case can be properly dealt with without the need for a Newton hearing. (3)If an indication is sought, the prosecution should normally inquire whether the court is in possession of or has had access to all the evidence relied on by the prosecution, including any personal impact statement from the victim of the crime, as well as any information of relevant previous convictions recorded against the accused. (4)If the process has been properly followed, it should not normally be necessary for counsel for the prosecution, before the court gives any indication, to do more than (a) draw the judge’s attention to any minimum or mandatory statutory sentencing requirements, and, where applicable or where invited to do so, to any definitive sentencing guidelines of the Sentencing Council or any relevant guideline cases, and (b) where it applies, to remind the judge that the entitlement of the A-G to refer any eventual sentencing decision as unduly lenient is not affected. (5)In any event, counsel should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.

Answer 18

(1)It is anticipated that any sentence indication would normally be sought at the plea and case management hearing, following a written application. (2) a hearing involving an indication of sentence should normally take place in open court with a full recording of the entire proceedings, and both sides represented, in the presence of the accused. (3)The court is most unlikely to be able to give an indication in complicated or difficult cases unless issues between the prosecution and the defence have been addressed and resolved. Therefore, in such cases, no less than seven days’ notice of an intention to seek an indication should normally be given in writing to the prosecution and the court. (4)If an application is made without notice when it should have been given, the court may conclude that any inevitable adjournment should have been avoided and that the discount for the guilty plea should be reduced accordingly. (5)There should be very little need for the court to be involved in the discussions with the advocates, save to seek better information on any troubling aspect of the case. An opening by the Crown, or a mitigation plea by the defence, is not envisaged. (6)The fact that notice has been given, and any reference to a request for a sentence indication, or the circumstances in which it was sought, would be inadmissible in any subsequent trial. (7)Reporting restrictions should normally be imposed, to be lifted if and when the accused pleads or is found guilty.

Answer 19

...the accused does not then plead guilty and cannot later bind the court. If the accused does not accept he indication in a reasonable time, they cannot complain if the judge subsequently disregards it

Answer 20

Counsel need to be aware of the all limitation of the courts' sentencing powers

Answer 21

o Prosecuting counsel are to summarise the facts of the case to the judge o If co-defendants, the one who pleads guilty will wait until the conclusion of the trial of the one who pleads NG

Answer 22

It is duty of all counsel to ensure the sentencing is conducted fairly, although he following points relate to the persecuting counsel: - Only provide evidence of the offence for which the defendant has pleaded or been found guilty for - Counsel is required to address any ancillary order which is being proposed alongside any other sentence - Prosecutor is under a duty that the court does not make an appealable error - Prosecutor can prepare a ‘plea and sentence document’

Answer 23

A lot of the time there is no dispute but where the factual differences are there, the defence can have a written basis of plea which counsel agree to.

Answer 24

Duty is on there defence to raise the issue: * Where D pleads guilty on a limited basis, defence are to set out the basis on which D pleads * It has to be in writing, unequivocal and unambiguous otherwise a judge is entitled to ignore it * Court should ideally be notified in advance or at the mitigation hearing

Answer 25

* Have a trial where a jury is to decide, such as deciding between s 20 and 18 * The judge is to decide after hearing evidence * Judge is to decide after hearing submissions from counsel, though this is where there is a presumption that the defences version of events are correct, it is for the prosecution to prove otherwise

Answer 26

Duty on prosecution: * Alert the court to potentially resolve any factual issues

Answer 27

Duty on court to resolve issues: * Judge is entitled to require e newton hearing to decide the factual matters * It has to be necessary for the basis of the sentence

Answer 28

...a Newton hearing is unnecessary—the judge will rarely be concerned with minute differences about events on the periphery.

Answer 29

...the judge should explain why that conclusion has been reached.

Answer 30

...take time to reflect, consult and consider their position and the interests of justice. Any view formed by the prosecution on a proposed basis of plea is deemed to be conditional on the judge’s acceptance of it.

Answer 31

...the agreement should be reduced to writing and signed by both advocates, which should be available to the judge in advance of the sentencing hearing and before the court is asked to approve the acceptance of plea. If the agreed basis of plea is not signed by advocates for both sides, or it is not legible, the judge is entitled to ignore it.

Answer 32

...should be identified in a document that focuses the attention of the court on the precise facts which are in dispute.

Answer 33

(a)In many cases, for example, the matter in issue is outside the knowledge of the prosecution. The prosecution’s position may be that they have no evidence to contradict the defence assertions, but that does not mean that the truth of matters outside their own knowledge should be agreed. (b)Neither the prosecution nor the judge is bound to agree facts merely because the prosecution cannot gainsay D’s account (a situation sometimes referred to as a ‘reverse Newton’). In those circumstances, particularly if the facts relied upon by D arise from personal knowledge and depend on D’s own account of the facts, the prosecution should only positively agree that account if it is supported by other material. (c)Where the issue arises from facts that are within D’s exclusive knowledge, the defence should be willing to call their client. An adjournment for these purposes is often unnecessary, since D will be present at the hearing. If D does not give evidence, the judge may draw appropriate inferences, subject to any explanation put forward. (d)Note that where D relies on extraneous mitigation there is usually, in practice, considerable deference to the submissions of counsel but the position in principle is that there is a burden on the defence to establish relevant facts to the civil standard (Guppy [1994] Crim LR 614).

Answer 34

No. The judge is not bound by any such agreement, and is entitled to insist that any evidence relevant to the facts in dispute should be called. In such a case the judge is entitled to expect the assistance of prosecuting counsel in presenting evidence, and in testing any evidence called by the defence. The agreement which the prosecution have previously entered into with the defence must be viewed as conditional on the approval of the judge. If the judge’s approval is not forthcoming, the defence cannot seek to hold the prosecution to the agreement. However, before embarking on the trial of an issue, the judge might consider whether, in fairness to D, there is any part of the agreement by which the prosecution should be bound.

Answer 35

... avoid giving the impression that the judge has already concluded that the defence version is implausible

Answer 36

(a)some issues require a verdict from a jury, e.g., intent; (b)a judge cannot make findings of fact and then sentence on a basis that is inconsistent with the pleas to the counts on the indictment; (c)where a number of persons are charged with a joint enterprise, the seriousness and context are always relevant; (d)matters of mitigation are not normally dealt with in a Newton hearing, but where there is no evidence to support D’s account other than D’s own assertions, the judge is entitled to invite defence counsel to call their client.

Answer 37

...just as a jury would have been directed, on the burden and standard of proof in accordance with ordinary principles.

Answer 38

If issues on a Newton hearing are resolved in D’s favour, the credit due for a guilty plea should not be reduced. However, if D is disbelieved (especially if the prosecution has been obliged to call evidence from a witness causing unnecessary and inappropriate distress), and the judge concludes that D has no insight into the consequences of the offence and no genuine remorse for it, the discount for a guilty plea may be significantly reduced, particularly if it has been tendered at a very late stage. There might be an exceptional case in which the normal entitlement to credit for a guilty plea is wholly dissipated by the Newton hearing, in which case the judge should explain the reasons.

Answer 39

- It may be the case that the defence version is just so implausible that the defence version is not wanted nor necessary - Judge is entitled to reject the submission put forth

Answer 40

Burden is on prosecution to prove beyond reasonable doubt that the version of events are true

Answer 41

Parties can call evidence as would be done normally to cross examine and give XIC

Answer 42

o Prosecution are not obliged to call evidence , they may state that the case is as the evidence stands o Prosecution must participate, despite having no material to put their case forth o Prosecutor must explore them alters that the court wishes to explore

Answer 43

o Defence do not have to call or give evidence but may sit back and observe the prosecution advancing their case o D cannot frustrate by saying there has been no newton hearing

Answer 44

Preferable that judge leaves questioning until after the XIC by defence counsel and XX by prosecution Judge must approach the matter and direct himself as if he was the jury as the judge is the tribunal of fact Judge must consider: - Turnbull directions - Codes of conduct and fairness of evidence - Reliability and credibility All as if the judge was the jury

Answer 45

The sentence is to establish the facts on which the offender was found guilty. the jury are not to be asked on their reasoning

Answer 46

After the prosecution summary of facts or a guilty verdict buy jury, the prosecutor must give details about the defendant is evidence of character and antecedents

Answer 47

Sentencing can only be for the crimes that the defendant has been found guilty of and nothing else There are the following exceptions: - (a)taking into account a less serious secondary offence which has not been charged but the commission of which is implicit in, and represents an aggravating feature of, the more serious primary offence (see Rubinstein (1982) 4 Cr App R (S) 202 at D20.42); - (b)if the offender expressly asks for the other offences to be taken into consideration (see D20.51); and - (c)if the prosecution case is that the offences on the indictment are merely samples of a continuing course of conduct and the defence accept that to be so (see D20.54).

Answer 48

Where the offender has a chance to work with the police and wipe up clean any offences they may have committed and plead guilty for. they can simply do this without the need for being arraigned etc. they can literally chat to the police officer and ask the court to take them into consideration.

Answer 49

- Prosecutor may ask the court to take the offending as a sample of continuing conduct - Where the prosecutor asks the court to reflect this as a course of offending instead of one isolated event

Answer 50

o Adults reports are done by probating o Children aged below 13 have them done by social workers o Children aged 13-16 have them done by probation and social services

Answer 51

- Last part of sentencing hearing - Where person is under age of 18, parent guardian or social worker may have the opportunity to come and give evidence - Witnesses may be asked to come and give evidence

Answer 52

Judge may retire briefly to consider sentence or even adjourn where it is a complex long case Giving reasons: o Judge must give reasons orally in public hearing o Judge must give reasons regarding credit o Must explain in non-technical terms for the sentence passed o Must explain he consequences and effect of the sentence and the consequences of non-compliance

Answer 53

- Deferred sentence may be done to consider the defendant conduct after conviction or the change of their circumstances - Sentence can only be deferred once, exceptions are there for that - Longest period to defer sentence is 6 months - Court must state that it is in the interest of justice to defer the sentence again or longer

Answer 54

maximum is: o 4 weeks on bail o 3 weeks in custody May allow the adjournment for offender to make inquiries which can assist eth court to deal with them

Answer 55

o Where an odd number on the bench, then the majority will succeed in the sentence which is to be passed o Where an even number are present, then there may be an adjourned until an agreement of sentence s reached o The sentence will be explained to the defendant the same way as it was in the Crown Court o The court must explain the reasons for deciding the sentence unless the defendant, nor any members of the public are not present

Answer 56

Maximum for summary, offences are six months or unless statute dictates, whichever is less The maximum fine is whatever offense creating provision specifies they are usually fixed on the scale. There is no restriction on the aggregate find that may be imposed. Aggregate prison terms o Magistrate sentence an offender for several offences, imposing imprisonment. They may make the terms concurrent consecutive. o An aggregate amount for more than one summary offence is a maximum of six months for either way offences the aggregate becomes 12 months maximum. o If a defendant reaches their suspended sentence, the magistrates may switch their sentence to a consecutive aggregate amount

Answer 57

Maximum sentence is 12 months or a fine of any amount

Answer 58

Once offender has attained age of 18, there is no limit of the compensation order which can be made

Answer 59

o Ages 18-20 o Where the offender is under the age of 18 at the date of conviction, a youth court may impose a detention and training order for which the maximum duration is 24 months o The above is made up of 12 months supervision in the community and 12 months in custody

Answer 60

- when passing sentence, the court must (unless neither the offender nor any member of the public is present) explain the reasons for deciding on that sentence. - Unless the offender is absent, or the offender’s ill-health or disorderly conduct makes it impracticable to do so, the court must also explain the effect of the sentence, the consequences of failing to comply with any requirements imposed, and any power that the court has to vary or review the sentence - The court must also consider exercising any power it has to make a costs or other order. - The court must identify any relevant definitive sentencing guidelines and explain how it has discharged its duty to follow those guidelines; where the court did not follow any such guidelines because it was satisfied that it would be contrary to the interests of justice to do so, it must state why.

Answer 61

- Where the offender has committed one or more, either way offence and the magistrates are of the view that their sentencing powers are inadequate, they may commit the case to the Crown Court - The crown courts can then pass this onto sentence on the offender, as if they were convicted on indictment, and so the limitations of the magistrates court sentencing powers do not apply

Answer 62

- If the magistrates are of the view that their sentencing powers are adequate, but also that they are inadequate, then they may commit the case to the Crown Court under section 18. - Basically this is for when the magistrates court powers are adequate, but they think that the case should be committed to the Crown Court for sentencing.

Answer 63

This gives the power to commit to the sentence, which may be used to supplement a committal under other provisions. For example, it may be used where a committal for sentence in respect of the breach of a conditional discharge imposed by the crown court, or where the defendant has committed further offences during the operational period of a suspended sentence imposed by the crown court.

Answer 64

- absolute discharge is available to all courts - No surcharge is payable - It cannot be combined with a punitive measure for same offence, only when this is permitted by statute - It’s cannot be combined with a custodial sentence, a community order or a fine - It can be for an individual offence, for which the defendant has been convicted for, and the other offences, the court is free to exercise its normal powers of sentencing

Answer 65

- The sole condition is that the offender should commit no further offences during the period of the conditional discharge - The period of the conditional discharge is fixed by the court must not exceed three years - The same rules apply to the use of the absolute discharge mentioned above - A defendant reaches their conditional discharge if they reoffend within the period, set by the court - If a defendant does breach their conditional discharge, they may be brought back to the court and be sentenced for the original offence in any manner in which the court would’ve done if the offender had just been 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

Answer 66

- Fines can be imposed instead or as well as further sentences - Define is not available as a penalty in exceptional cases - Fines cannot be combined with a hospital order, nor with an absolute or conditional discharge when sentencing for a single offence - Some statutes place a limit on fines, so any fine may be passed within that limit - Crown Court can set the time limit and the instalments it should be paid in accordance with the fine - A failure to fix a time does not invalidate the fine itself, a term which is fixed, should relate to the whole sum

Answer 67

Fines are limitless unless statutes dictates

Answer 68

- Court must enquire into the offenders financial circumstances before they fix the fine - Once this information has been gathered, the court will choose a fine, which reflects both the seriousness of the case, but the amount in which the defendant can pay within their financial circumstances - Before the court makes the fine they may make a financial circumstances order with respect to that individual - If I order, it is an order requiring the individual to give the court information before the end of the period specified in the order, which gives information about the individuals assets of the financial circumstances of the court as the court may require - If an individual fail to comply with the financial look at circumstances order, they are liable on summary conviction to fine, not exceeding level three - If the individual complies with the financial order, but makes knowingly false information or reckless false information, they are liable on summary conviction to find the exceeding level four

Answer 69

- The fines reflect the seriousness of the offence - Full guilty pleas I find maybe substituted for a community order in order to reflect credit

Answer 70

- Where are fine has been imposed be on the means of the offender. This is wrong in principle. - Where the offender lacks the means to pay the level of fine, which is proportionate to the seriousness of the events. It is contrary to the principle to impose a custodial sentence instead. - Where do you find it has a lot of money and paying the fine which is proportionate to be. A fence would cause little inconvenience. It is contrary to the principal to impose a custodial sentence instead. - It is appropriate to raise the level of the fine in such a case, so to increase the impact on the offender. However, there must remain some proportionality between the offense and the fine - The level of fines should be adjusted upwards or downwards to take into account of the offenders ability to pay - If the offense merits custody and the offender, who is well off would have gone to prison, a custodial sentence may be imposed instead - It is a fundamental principle that a rich offender must not be permitted to buy his way out of prison. It equally applies where the offender has family and friends who are able to meet a substantial fine.

Answer 71

o Magistrates court sentencing guidelines state that normally fine should be of an amount that is capable of being paid within 12 months, but there may be exceptions to this o The length of time may depend on the nature of the offence, and the nature of the offender, and their circumstances o There is an exception in relation to corporate defendants where to find me payable over substantially longer period of them for an individual

Answer 72

o There is no full restriction of combining fines with imprisonment or other custodial sentences in respect to the same offence or different offences sentence at the same time o It will often not be desirable to do this, however, as a combination may be seen as wrong in principle

Answer 73

- An offence must be serious enough to warrant the making of a community order - Because the order is only available if the offence is punishable with imprisonment - It is not applicable when there is a mandatory sentence required - It’s currently made in combination with a hospital order or a guardianship order in respect of the same offence - A court may not make a community order in respect of an offence. If it is making a suspended sentence order in respect of the events or any other events in which the offender is convicted at the time or any other events for which it deals with the offender.

Answer 74

- A pre-sentence report is often pivotal in assisting the court in deciding whether to impose a community or custodial sentence - A presentence report contains all the relevant information needed - A pre-sentence report is made by an officer of the local probation board with a view to assisting any court in deciding how best to deal with that offender

Answer 75

- There are many things in which a community order may be imposed and for the defendant to comply with. Defendant must be 18 years or over. The following may be imposed: o Unpaid work requirements o Rehabilitation activity requirement o Program requirement o Prohibited activity requirement o Curfew requirement o Exclusion requirement o Residence requirement o Foreign travel prohibition order requirement o Mental health treatment requirement o Drug rehabilitation requirement o Drug testing requirement o Alcohol treatment requirement o Alcohol, abstinence and monitoring requirement o Attendance centre requirement o Electronic compliance monitoring requirement o Electronic, whereabouts Monitoring requirement - Electronic compliance monetary requirement is not available unless the community order imposes at least one other requirement other than an alcohol abstinence and monitoring requirement or an electronic whereabouts monitoring requirement

Answer 76

- The number of hours unpaid work must be no less than 40, and no more than 300 - The court must hear from the appropriate officer that the offender is suitable person to perform work under the requirement and that local arrangements exist for that requirement to be carried out. This will be done if the court sees it to be necessary. - Appropriate office there will be one of the probation board - If there is more than one offence, then the number of hours may run concurrently or consecutively, but the number of hours must not exceed 300 - Take me to order with a single requirement of unpaid work is always a community order for 12 months and if the completion of that is less than 12 months then the order will not be invalidated - If the number of hours are not complied with within the 12 months, then the defendant will be seen in breach of that order - The court can extend the order if the defendant has breached

Answer 77

- This is where the offender must attend activity requirements, which are designed to rehabilitate and restore the defendants behaviour - The court does not dictate what activities are to take place

Answer 78

o Where the defendant must comply with the instructions of the program leader, which is a probation officer o Activities are designed to address the offending behaviour related to the offence o It is said that: where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment program requirement can be a proper alternative to a short or moderate length. Custodial sentence. o The court needs to specify that the program needed to be complied with and to specify the number of days in order for the order to be lawful

Answer 79

o The court can require the offender to refrain from participating in certain activities on the specified day or days over a specified period of time o This can be where the court refrain is the defendant from attending football matches o the court must consider information from an officer of the probation board before making a order

Answer 80

o Where the offender must remain at a place specified by the court for a certain period of time o Different places and a few different curfew times may be specified by the court o The period of time must not be less than two hours, and no more than 16 hours in any given day the order must not amount more than 112 hours in any period of seven days o This can be given over a period of two years the court must normally also impose electronic monitoring requirements, unless the court considers it an appropriate to do so

Answer 81

o And exclusion requirement prohibits an offender from entering a specified prohibited place or places or area during the period of a specified time in the order o The order can exclude the offender from different places for different periods of time o It may be used to keep the offender away from a specified person o It can last no longer than two years o Normally electronic compliance monitoring requirement is also imposed, unless it is inappropriate to do so o It is found that it is unlawful for a court to expel an offender from the UK by way of an exclusion requirement within a community order

Answer 82

o Posed where the defendant must reside at a specified address for a specified period of time o It can be a residence at a hostel but only with the recommendation of an officer have a local probation board or an officer who provides probation services o The courts must consider the home surroundings of the offender

Answer 83

o This is where the offender must obtain treatment to address their mental health issues, which are the cause of the offending o The courts must first consider that a hospital order or a guardianship order is not required o Must be conducted within a specified time

Answer 84

o Defender must attend drug treatment sessions and drug testing sessions every specified amount of time o They must attend to a specifically qualified person o The courts must be satisfied that the offender is dependent on, or has a propensity to misuse any controlled drug o The drug rehabilitation must have been recommended to the court by a probation officer as an appropriate form of sentencing o It’s me take the form of treatment as a resident in a specified, institution or place or treatment as a non-resident o Offender must express willingness to comply with the requirement o There is no minimum period of time

Answer 85

- Court must be satisfied that the vendor is dependent on alcohol - Offender is subjected to treatment by a specified individual for a specified amount of time in order for them to be rehabilitated and treated for their alcohol dependency - The offender must express willingness to comply with a requirement - There is no minimum period of time - Offender can be treated as a resident or non-resident at a specific location

Answer 86

o This is only available for offenders aged under the age of 25 years o Only available where the offender was convicted before the 28th of June 2022 o Must be no less than 12 months, no more than 36 o Offender cannot be required to attend more than once on any single day, more than three hours on any occasion o Attendance must only be imposed when the tenants can be done locally

Answer 87

o Effectively, it’s where, like Tronic tag is attached in order to complement a curfew requirement or an exclusion requirement o It cannot be imposed without the persons consent if that person is someone other than the offender and is required to cooperate in order to make this requirement work o Must be available in the local area at the necessary provision coming made under those arrangements

Answer 88

o Electronic or monitoring may be ordered as a freestanding requirement of a community order o The court will specify the duration of the period of electric wiring within the terms of its order o If the order cannot be complied, with without the cooperation of another person that it cannot be done without that persons consent o Court must ensure that the electronic arrangements are available in the local area. There are necessary provisions can be made under those arrangements.

Answer 89

o Probation officer must give sufficient warning if the order has been breached within the 12 months o The further breach does not require that officer to give a further warning, however, they must report it the matter to the enforcement officer o The enforcement officer is then underestimated to consider the matter, and where appropriate to cause an information to be laid in respect of the failure to comply o This may result for issue of summons or warrant by the Justice of the peace, or by the Crown Court o Effectively, if the second breach has happened within the 12 months period and the individual must be brought back to the court who created the order in the first place o If the individual has lodged an appeal against their sentence, this does not suffice to a reasonable excuse for non-compliance.

Answer 90

o The crown court may allow any breaches of specific orders to be dealt with by the magistrates. If not, then individual be brought back before the Crown Court. o If the quarters of the mind that the individual is to be resentenced, then they will be resentenced on the basis of their age, when the original order was made o Any breach will be either admitted by the offender, or should be proven to the criminal standard of proof o The court must deal with the breach. There is no power to take no action and breach. o The court may extend the order for up to 6 months beyond the original end date even if it involves a total duration of the order, exceeding three years o The court must always consider the nature of the breach and the extent of the compliance for that order o If probation indicate that the service wishes to continue working with the offender, and that should be given considerable weight o When the Crown Court is dealing with a breach of a community order if they are to re-sentence individual to a custodial sentence, then the deduction of remand in custody will still apply

Answer 91

- By ordering the offender to pay a fine not exceeding £2500 - By amending the terms of the community order to impose a more onerous requirement, which the court could include as if it has just convicted the offender - If the order qualifies for special measures, then the court may send the person to prison for a specified period to which they see fit, but not to exceed 28 days - If the community order was made by the magistrates court by resentencing the offender for the fence and respect, for which the order was made

Answer 92

This may apply where did defendant has committed further offences whilst under a community order

Answer 93

There are various forms of amendment to requirements and agreed to order, which may be made by an appropriate court and application by the offender or an officer of probation services An amendment may be made in light of the following circumstances:  Change of offenders residence  Change of requirements in the order  Change of a treatment requirements and reports of a medical practitioner  Substitution of a later end date, but an extension of no more than six months, even if that exceeds the maximum of three years in total, it may be three years and six months  For an extension of the period of 12 months for completion of unpaid work requirement

Answer 94

(a) a detention and training order under section 233, (b) a sentence of detention under Chapter 2 of this Part, (c) a sentence of detention in a young offender institution, (d) a sentence of custody for life under section 272 or 275, or (e) a sentence of imprisonment. o Offenders aged under 21 at the date of conviction cannot be sentenced to imprisonment o Those aged under 21 cannot be sentenced to imprisonment for non-payment of fine o Does not apply to those who are aged under 21 and remanded in custody

Answer 95

If the offence is indictable and committed to crown court for sentence, if the maximum is not specified within the statute, then a rule of thumb is that the maximum is 2 years

Answer 96

- Purpose of the threshold test is to save all custodial sentences for those serious enough to warrant one - The guideline also states that ‘Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable’. - Court may apss a custodial sentence where there has been a willingness not to comply with s community order - Where there are two or omore offences then the courtmust consider the level of seriousness - The offences have to e associated with one another in order for thr provision to work

Answer 97

o Ensure there is not a total sentence which is disproportionate to the offending behaviour o The rule pf totality will be considered o Where totality will be considered, the court will normally have the sentences run concurrently

Answer 98

- When a custodial sentence is to be passed, it should be as short as possible but to reflect the seriousness of that offending and the defendant themselves - In forming its opinion, the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors and the pre-sentence report requirements apply to the court in relation to forming that opinion

Answer 99

Where the defendant has been on bail with a curfew condition and an electronic monitoring condition then it can count towards the credit off custodial period The following steps are taken in order to calculate this: - Step 1 is to add (a) the day on which the offender’s bail was first subject to the relevant conditions (and for this purpose a condition is not prevented from being a relevant condition by the fact that it does not apply for the whole of the day in question), and (b) the number of other days on which the offender’s bail was subject to these conditions (but exclude the last of those days if the offender spends the last part of it in custody). - Step 2 is to deduct the number of days on which the offender, whilst on bail subject to the relevant conditions, was also (a) subject to any requirement of securing the electronic monitoring of the offender’s compliance with a curfew requirement, or (b) on temporary release under rules made under the Prison Act 1952, s. 47. - Step 3 is to deduct from the remainder the number of days during that remainder on which the offender has broken either or both of the conditions. - Step 4 is to divide the result by two, - Step 5 is, if necessary, to round up to the nearest whole number. Subject to s. 240A(3A) and (3B), the court must direct that the credit period is to count as time served. Section 240A(3A) states that a day of the credit period counts as time served in relation to only one sentence, and only once in relation to that sentence, and s. 240A(3B)says that a day of the credit period is not to count as time served as part of any automatic release period served by the offender. The sentencer should state in open court the number of days on which the offender was subject to the conditions and the number of days which the court deducted under each of Steps 2 and 3 (SA 2020, s. 325(4)). Only applies where the defendants bail condition was a curfew of 9 hours or more And if that is the case then it only counts towards a day of the custodial sentence credit

Answer 100

The guideline states that concurrent sentences will ordinarily be concurrent where: (a)offences arise out of the same incident or facts, or (b)there is a series of offences of the same or similar kind, especially when committed against the same person. Where concurrent sentences are to be passed the sentence should reflect the overall criminality involved. The sentence should be increased to reflect the presence of the associated offences.

Answer 101

The guideline states that consecutive sentences will ordinarily be appropriate where: (a)offences arise out of unrelated facts or incidents. (b)offences are of the same or similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences; (c)one or more offence(s) qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum. It is not permissible to impose consecutive sentences for offences committed at the dame tie in order to evade the statutory minimum penalty Judges are to add up and make the aggregate amount for a sentence with is just and proportionate

Answer 102

Defendant s may be allowed out of prison half way through their sentence and remain on license until the end of their sentence

Answer 103

- It is presumed that the sentences will run concurrently - Each count will be dealt with separately then the court will decide whether it will run concurrently or consecutively - You can’t split and make some sentences run concurrent and some consecutive - Sentence starts from the day that it has been passed - it is wrong in principle in such a case to pass a sentence which is disproportionate to the most recent offence in an attempt to ensure that the offender serves more than the remainder of the licence period of the original offence.

Answer 104

- An offender aged 21 and over who is convicted of murder (but not related offences such as attempted murder or conspiracy to murder) must be sentenced to imprisonment for life - For an offender aged under 21 on the date of conviction, the equivalent sentence is custody for life - If, however, the offender who is convicted of murder was aged under 18 when the offence was committed, irrespective of age on the date of conviction, the sentence is one of detention at Her Majesty’s pleasure - A judge fixing the minimum term to be served as part of the mandatory life sentence for murder is concerned with the seriousness of the offence itself, and not the dangerousness of the offender. The element of public protection is provided by the indeterminate nature of the life sentence and becomes the responsibility of the Parole Board once the minimum term has been served - It is, however, open to a judge to express the view that D should not be released immediately upon expiry of the minimum term, or perhaps that D should not be released at all. The judge may direct that a transcript of those comments be made available to the Parole Board

Answer 105

- Court may not impose a sentence which is less than 80 percent of the minimum term - Eighty per cent of seven years produces a sentence slightly less than five years and eight months. If the sentencer has taken a starting point which is higher than the minimum sentence, a sentence reduction of one-third to reflect a timely guilty plea may be perfectly appropriate, always provided that the final sentence is not less than 80 per cent of the minimum sentence

Answer 106

A minimum term of 7 years MUST be imposed so long as the offender was: - 18 or over at the time of the offence; and - there have been 2 previous offences unless the court is of the opinion that there are particular circumstances which— (a) relate to any of the offences or to the offender, and (b) would make it unjust to do so in all the circumstances.

Answer 107

a minimum of 3 years MUST be imposed so long as the offender was: - 18 or over at the time of the offence; - there have been 2 previous offences; and - one of the burglaries to which those other relevant domestic burglary convictions relate was committed after the person had been convicted of the other. unless the court is of the opinion that there are particular circumstances which— (a) relate to any of the offences or to the offender, and (b) would make it unjust to do so in all the circumstances.

Answer 108

- The power to impose a suspended sentence under the SA 2020 applies to sentences of imprisonment and to sentences of detention in a young offender institution. - The suspended sentence is available where a court imposes a determinate custodial sentence of not more than two years. Sentences of less than 14 days’ imprisonment cannot be suspended. - For the sentence of detention in a young offender institution, sentences of less than 21 days cannot be suspended, 21 days being the minimum term available for that sentence. Detention and training orders cannot be suspended. - ‘a suspended sentence must not be imposed as a more severe form of community order. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.’

Answer 109

Where two or more sentences imposed on the same occasion are to be served consecutively, the power to suspend sentence is not exercisable in relation to any of the sentences unless the aggregate of the terms does not exceed two years

Answer 110

o Immediate and suspended sentence should not be imposed at the same time o Suspended sentence should not be imposed whilst D is currently serving as sentence o It is submitted that a suspended sentence cannot be combined with a discharge when sentencing for a single offence but a discharge could be given for one offence when a suspended sentence was passed in respect of another offence sentenced on the same occasion. A fine may be combined with a suspended sentence, but it is improper to combine them when a fine standing alone would have been the proper sentence. o No imposition of ancillary, compensation or reparation orders alongside a suspended sentence o The conditions of a suspended sentence are the same as community order requirements

Answer 111

o Look at my order that the suspended sentence is to take affect with its original term unaltered; o Court may order that the suspended sentence is to take affect with a substitution for the original term of a lesser term; o The court may order the offender to pay fine with an amount not exceeding £2500; o In the case of a suspended sentence order that imposes one or more community requirements, the courts can impose more onerous community requirements, it can extend the supervision period, or the operational period; o With a suspended sentence does not impose any community requirements, the court can extend the operational period

Answer 112

- This works the same as when there is been a breach of a community order - If the defendant has a reasonable excuse for breaching, the order, the probation officer will take that into consideration - The court must deal with the offender in one of the ways listed in paragraph 13 of schedule 16 in the sentencing act. The court is not promised, permissible to simply revoke the order or to revoke it and re-sentence or to make no real order with respect to it. - Although the courts must deal with a breach of a suspended sentence, they can avoid imposing any penalty where it would be unjust to do, so in the view with all the circumstances

Answer 113

o The court must consider the extent to which the offender has complied with a suspended sentence order, and they must consider whether it is unjust in all the circumstances to activate the sentence whole or in part. o The cups need only take into account the new and exceptional matters

Answer 114

o The facts and the nature of the new events is the primary consideration, and the court will have to consider the question of whether the activation of the sentence in whole or in part would be unjust in all the circumstances o These relevant factors will include personal mitigation, whether there is a real prospect, rehabilitation, or whether immediate customers will result in significant impact on others o Overall, only the factors or circumstances which were not present at the time of the suspended sentence order was imposed should be taken into account

Answer 115

- The accused may be ordered to pay the prosecution costs - It applies to a convicted accused, an unsuccessful appellant or a person in breach of various court orders where the appellant is unsuccessful in the court of appeal to the prosecutor or other named third-party . - It’s also applies to where there is been a committal to the Crown Court, so the Crown Court when dealing with a commercial offender they order him or her to pay costs.

Answer 116

- The court must order a payment of an amount that it considers to be just unreasonable - The courts must specify that some in the order - The court is to be the one to determine the amount it cannot delegate this duty, but they can seek assistance from the criminal cases unit of the legal aid authority or registrar of criminal appeals - It is for the prosecutors all the claimants to justify the amount claims and its connection to the particular prosecution. They cannot rely on figures published by the CPS.

Answer 117

o (1)The order to pay costs should never exceed the sum which D is able to pay, and which it is reasonable to expect D to pay, having regard to his or her means and any other financial order imposed. o (2)Nor should it exceed the sum which the prosecutor has actually and reasonably incurred. o (3)The purpose of such an order is to compensate the prosecutor and not to punish D, e.g., for exercising the constitutional right to defend him or herself. o (4)Any costs ordered should not in the ordinary way be grossly disproportionate to any fine imposed. Where the fine and the costs exceeded the sum which D could reasonably be ordered to pay, the costs should be reduced, rather than the fine. o (5)When facing a fine or an order as to costs, D should disclose to the magistrates the data relevant to his or her financial position, so that they can assess what D can reasonably afford to pay. Failure to make such disclosure could lead the court to draw reasonable inferences as to D’s means. o (6)The court should give D a fair opportunity to adduce any relevant financial information and make submissions prior to the determination of any financial order.

Answer 118

...the offender to pay a surcharge.

Answer 119

- both Crown and Magistrates must order a surcharge when D is guilty of one or more offences committed on or after 1 April 2007. - If the court postpones confiscations proceedings, then said she surcharge should not be imposed until those proceedings are complete - Unless it is exceptionally in all the circumstances necessary, a surcharge should not be set aside, if by mistake, it has been imposed during confiscation proceedings

Answer 120

if it is deemed appropriate to order a compensation order and D has low funds, then the surcharge MUST be reduced accordingly.

Answer 121

an order made in respect of an offender for an offence that requires the offender— (a) to pay compensation for any personal injury, loss or damage; or (b) to make payments for funeral expenses, or bereavement, in respect of a death resulting from any such offence.

Answer 122

In determining— (a) whether to make a compensation order against an offender, or (b) the amount to be paid under such an order, the court must have regard to the offender's means, so far as they appear or are known to the court.

Answer 123

the amount to be paid which is appropriate.

Answer 124

- It is possible to impose a compensation order with a custodial sentence. However, this is exercised with severe caution as if the defendant does have them did not have the means to pay the compensation order upon release. It may force them back into criminal activity. - If the compensation order is mixed with a fine or a surcharge, then the compensation order will take precedent over the fine or surcharge

Answer 125

- Property must have been lawfully seized from the offender OR property was in the offender's possession or under the offender's control when the offender was apprehended for the offence, or a summons in respect of it was issued - property must have been used for the committing or facilitating the offence or was intended for that purpose - The power does not extend to real property such as houses - The order may be quashed, if it is found that the property belongs to someone else, or that they have an interest in that property, and that they were not involved in the commission of the offence - Person has a proprietary interest must apply for that property to be recovered - The property has to be used for the commission of the events - The full and proper investigation should be made - Property which have has been used for previous offences, maybe deprived - If there is not been a proper enquiry, then this gives grounds for the deprivation order to be quashed

Answer 126

- Once one has been convicted under the misuse of drugs act 1971, the court may order anything sent to the satisfaction which relates to the event where items may be forfeited, destroyed, or dealt with in such a manner that the court may order and see fit - The court should not order anything to be forfeited under the section where a person claiming to be the owner of or otherwise interested. It applies to be heard by the court, unless the opportunity has been given to him to show cause why the order should not be made. - The property should be shown to be related to the offence

Answer 127

Crown Magistrates must commit the case to crown if a confiscation order is to be sought

Answer 128

section 6 POCA 2002

Answer 129

- The purpose of the proceeds of crime, confiscation orders is to recover from the defendant, a sum of money, not exceeding the value of the defendants proceeds of crime - What’s that song has been determined a conversation all day of that sum should be sought, unless the defendant can show that they only have an amount that is payable which happens to be less than the amounts, which seem to be of the benefit - If Civil proceedings are to be sought, then a confiscation order is not to be made, as this will be seen as disproportionate.- A confiscation order does not have to be in writing, although it is good practice if it is to be drawn up as a formal order - The conversation order may be made before sentence

Answer 130

It is for the prosecutor to ask the court to proceed to confiscation, and when that happens, a confiscation hearing is mandatory the court has to decide whether defendant has benefited from his conduct and if so to what value it can be that the defendant has had a criminal lifestyle

Answer 131

- The Crown Court may postpone the confiscation hearing for up to 2 years from the date of conviction, and proceeds to sentence the defendant, but not impose any financial orders or penalties in that period - Where they are exceptional circumstances, a longer post payment may be possible

Answer 132

- A PSR may be obtained in order to help determine the issue of dangerousness - The courts will rely on the circumstances of the offence - Where there is an extensive history of criminality together with the facts of the offence. This can justify a conclusion of dangerousness with or without a presentence report. - If a psychiatric report is obtained, and it should be clearly directed to the issue of dangerousness - The court can have regard to past previous specified offences which are relevant, but also offences that are on record which are not specified offences, especially where they indicate an escalating pattern of seriousness - Sentence imposed and more likely to change. - Within the meaning of significant risk to the members of the public was a general term, and it should not be construed to exclude any particular group and such risk can be properly made out where the risk is specific to a small group of individuals, or perhaps just one potential victim - Members of the public can include those citizens who would not be in with within the UK at a time when the anticipated risk might materialise.

Answer 133

The finding of dangerous on young people should be carefully considered, especially where there is no pattern of offending. Young people are more likely to act impulsively more likely to be responsive to any sentence imposed and more likely to change.

Answer 134

- It would be rare where the Court of Appeal would interfere with the Crown Court decision in the level of dangerousness - It is for the applicant to show that the judges decision could not properly have been reached, had the identified the relevant principles and applied his mind to the facts

Answer 135

immediate imprisonment

Answer 136

- This is where there is to be life sentences, extended sentences, serious terrorism, sentences and custodial senses for certain offenders of particular concern - Specified offences are those violent, sexual, or terrorism offences which are listed in schedule 18, all of which carry a maximum penalty of two years, imprisonment or more - Defences listed in schedule 19 means and specified offence, which carries a maximum sentence of imprisonment for life - Serious harm means death or serious, personal injury, whether physical or psychological

Answer 137

cannot exceed the maximum term specified for the offence.

Answer 138

once he has served 2/3 of the sentence

Sentencing Flashcards

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