Sentencing Flashcards
(38 cards)
What are the 5 purposes that the court should have regard to when sentencing an offender aged 18 or over?
Court sentencing an offender aged 18 or over must have regard to 5 purposes of sentencing:
- Punishment
- Reduction of crime, including reduction by deterrence
- Reform and rehabilitation of offenders
- Protection of the public
- Reparations by offender to persons affected by the offence
These don’t apply where the sentence is fixed by law, subject to a statutory minimum or if D is classed as a dangerous offender
- Murder must attract life imprisonment
What are the maximum sentences for all the offences we consider?
- Criminal damage – 10 years (£5000 or over); 3 months (under £5000)
- Aggravated criminal damage – Life imprisonment
- Arson – Life imprisonment
- Aggravated arson – Life imprisonment
- Simple assault – 6 months’
- Battery – 6 months’
- Assault occasioning ABH – 5 years’
- Wounding or inflicting GBH – 5 years’
- Wounding or causing GBH with intent – Life imprisonment
- Murder – Life imprisonment (mandatory)
- Constructive manslaughter – Life imprisonment
- Gross negligence manslaughter – Life imprisonment
- Theft – 7 years’
- Robbery – Life imprisonment
- Burglary – 14 years (dwelling); 10 years (non-dwelling)
- Aggravated burglary – Life imprisonment
- Fraud – 10 years’
What is the foremost principle/concept that a court must consider when passing sentence?
Seriousness
This requires a court to consider:
(a) the offender’s culpability in committing the offence, and
(b) any harm which the offence
- (i) caused,
- (ii) was intended to cause, or
- (iii) might foreseeably have caused
How is culpability assessed in making a determination about the seriousness of an offence?
4 levels of culpability, in descending order of seriousness, where the offender:
- (a) has the intention to cause harm, with the highest culpability being when an offence is planned. The worse the harm intended, the greater the seriousness;
- (b) is reckless as to whether harm is caused;
- (c) has knowledge of the specific risks entailed by their actions, even though the offender does not intend to cause the harm that results;
- (d) is guilty of negligence
How is harm assessed in making a determination about the seriousness of an offence?
Harm to individuals or to community at large may include:
- Physical injury
- Sexual violation
- Financial loss
- Damage to health
- Psychological distress
Furthermore, a particular offence might be treated more seriously if it is prevalent in a certain area and these offences are causing harm to the community at large
A sentencing court will also consider aggravating and mitigating factors to decide the seriousness of a particular case.
There are 4 statutory aggravating factors, where a case must be treated as more serious than it would otherwise be. What are these 4 factors?
1) Previous convictions – if, based on their nature and time that has elapsed since the conviction, the court considers it reasonable to do so
- Committed recently and/or similar types of offence
2) Offences committed whilst on bail
3) Racial or religious aggravation – if this was a motive, it must be treated as an aggravating factor
4) Hostility based on sexual orientation or disability
Outside of the statutory factors, there are various aggravating factors that may be considered. What are some of these?
- (a) offences that are planned or premeditated;
- (b) offenders operating in groups or gangs;
- (c) the deliberate targeting of vulnerable groups (such as the elderly or disabled victims);
- (d) offences committed whilst under the influence of drink or drugs;
- (e) the use of a weapon;
- (f) deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence;
- (g) offences involving the abuse of a position of trust;
- (h) offences committed against those working in the public sector or providing a service to the public;
- (i) in property offences, the high value (including sentimental value) of property to the victim; and
- (j) failure to respond to previous sentences
What mitigating factors may be considered by a sentencing court?
- (a) offences where the defendant has acted on impulse;
- (b) when the defendant has experienced a greater degree of provocation than normally expected;
- (c) defendants who are suffering from mental illness or physical disability;
- (d) if the defendant is particularly young or old (particularly in the case of young offenders who are immature and have been led astray by others)
- (e) the fact that the defendant played only a minor role in the offending;
- (f) defendants who were motivated by genuine fear; and
- (g) defendants who have made attempts to make reparation to their victim
A guilty plea may have the effect of reducing the sentence a defendant receives, but is solely dependent on when it is entered.
What discounts are available and at what stages?
Remorse and strength of CPS’ evidence are irrelevant – timing is everything
1) Full one-third discount on sentence is only available where a guilty plea is indicated at the 1st stage of proceedings:
- 1st hearing in MC, including where the case is then committed for sentence to CC
- Indication of guilty plea in MC to an offence triable only on indictment, followed by a guilty plea at the 1st hearing in CC
2) Reduced to maximum of one-quarter after the 1st stage of proceedings
- Indicated at PTPH
3) Reduced to a maximum of one-tenth where entered on 1st day of trial and may be reduced further if entered during trial
What is meant by the totality principle?
Court will consider associated offences at same time as sentencing main offence
- Associated offence = D convicted for this in same proceedings, sentenced at same time or D has asked the court to consider it when passing sentence
When might a defendant ask for other offences to be taken into consideration when a sentence is passed?
D might ask court to take other offences into consideration, if they have committed other offences for which they have not yet been prosecuted
- Police usually present D with a list of additional offences for which they are under investigation and D can ask court to consider some or all of these
- They should be of a similar nature or less serious than the main offence
- Helps to ‘wipe the slate clean’ for D
Most offences have definitive sentencing guidelines, and they require the court to follow an 8-step approach to deciding sentence.
What is this general 8-step approach?
Steps 1, 2 and 4 and 8 are the key steps
Step 1 – determining the offence category
- 3 categories to differing levels of harm and culpability and they give a starting point sentence, which applies to all offenders equally and is shaped by the later steps
- Category 1 – greater harm and enhanced culpability
- Category 2 – either greater harm or enhanced culpability
- Category 3 – lesser harm and a lower level of culpability
Step 2 – Shaping the provisional sentence: starting point and category range
- Aggravating and mitigating factors shape sentence
- Relevant statutory thresholds for custody must be considered
Step 3 – Other factors which indicate a reduction in sentence
- Where offender assists police (not very common)
Step 4 – Reduction in sentence for a guilty plea
Step 5 – Imposing an extended sentence
Step 6 – Totality principle
Step 7 – Compensation and other ancillary orders
- Consider if D should pay compensation
- Consider if they should make any ancillary orders, such as confiscation, destruction or forfeiture orders
Step 8 – Giving reasons
- Court must give reasons for their sentence, including its effect, the effect of non-compliance and the sentencing guidelines they followed
What is the difference between a concurrent and consecutive sentence and when will either be relevant?
Relevant when sentencing an offender to a custodial sentence for 2 or more offences
- Concurrent – custodial terms are deemed to be served at the same time
- Consecutive – one custodial sentence will start after the other has finished
What is the main principle to help a court decide between concurrent or consecutive sentences?
When sentencing for more than 1 offence, the overriding principle of totality is that the overall sentence should:
- Reflect all offending behaviour with reference to overall harm and culpability; and
- Be just and proportionate
How are consecutive and concurrent sentences adjusted, when imposed, to ensure they are just and proportionate?
If consecutive, usually some downward adjustment, as adding 2 single sentences may not be just and proportionate
If concurrent, usually some upward adjustment, as the single sentence will not adequately reflect the overall offending
Thinking about certain factual scenarios, when will a concurrent and consecutive sentence be more appropriate?
Concurrent more appropriate where:
- Offences arise out of same incident or facts
- Series of offences of the same or similar kind
Consecutive more appropriate where:
- Offences arise out of unrelated facts or incidents
- Offences of same or similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences
- Offences committed in same incident are distinct, involving an aggravating element requiring separate recognition
What is the 4 step approach that the Sentencing Guidelines present as to making a just and proportionate choice between consecutive or concurrent sentences?
1 – Consider sentence for each individual offence
2 – Determine whether the case calls for concurrent or consecutive sentences
3 – Ensure overall sentence is just and proportionate
4 – Consider is the sentence is structured in a way that will be best understood by all concerned with it
When will a legal representative obtain a pre-sentence report?
Where D pleading guilty and case is likely to be sentenced by MC, their legal representative can ask the Probation Service to prepare a pre-sentence report before the 1st hearing
- Court can decide whether to use it to sentence D
Legal representative will only ask for one to be prepared where D will plead guilty to all offences on full prosecution facts + D agrees to cooperate with PS to prepare a report
Legal representative must also be satisfied that:
- D likely to be sentenced in MC
- Offence is serious enough for community order + pre-sentence report is likely to be necessary
- D understands that MC retains all sentencing options and chooses whether to consider the pre-sentence report before plea + they can proceed to sentence without one
Does the court need to obtain a pre-sentence report?
Court must obtain and consider one before forming an opinion on:
- whether the custody threshold has been passed and, if it has, how long the custodial sentence should be; and
- whether the threshold for imposing a community sentence has been passed and, if it has, the requirements that should be imposed on the defendant under a generic community order
They don’t have to obtain one if they consider it unnecessary (if they know for sure that the custody threshold is met for example)
Where D pleads guilty or is found guilty through a trial, they have an entitlement to present a plea in mitigation before a sentence is imposed.
What is the purpose of a plea in mitigation and what general structure will it take?
The aim is to persuade the sentencing court to give D the most lenient sentence they could reasonably be expected to give for that offence
Structure of a plea often has 4 parts:
- The likely sentence
- The offence
- The offender
- The suggested sentence
How will the plea in mitigation address the likely sentence?
D must research likely range of sentences to identify the starting point sentence that D wants to persuade the court to go lower than
How will the plea in mitigation address the offence itself?
D will:
- Minimise the impact of aggravating factors
- Emphasise the importance of mitigating factors
How will the plea in mitigation address the offender?
Plea should consider any personal mitigation that D may have, including:
- Age – relevant if D young and impressionable or older + first offence
- Health – relevant to draw attention to long-term illnesses that D might be suffering from or how a different sentence might help an addiction
- Cooperation with the police/early guilty plea – relevant if they made a prompt confession to not waste police time for example
- Voluntary compensation – D may get credit for making good the harm they caused, particularly if they are of limited means
- Remorse – evidence of true remorse is effective mitigation; helpful to show they took positive steps to tackle problems leading to offence (getting addiction support)
- Character – distinguish prior convictions or highlight absence of prior convictions, which is important mitigation; D may call character witnesses to give evidence of their good character
- Family circumstances – can help gain sympathy for D or show a likelihood to avoid reoffending
- Low risk of re-offending
How will the plea in mitigation address the suggested sentence?
D should conclude by suggesting a lower sentence, based on all the mitigating factors they have put forward
Must be realistic and at the lower end of the range of possible sentences in the mind of the court
