Sentencing - Hearings Flashcards
(26 cards)
What are the three ways a defendant can come to be sentenced?
- Found guilty after trial
- Pleads guilty on a full facts basis
- Pleads guilty on a basis of plea that differs from prosecution facts
What is a basis of plea?
A written, signed document by the D setting out the version of facts they accept as true admitting guilt.
What must a basis of plea always include?
An unequivocal admission to the offence - it cannot contradict the elements of the offence.
What are the prosecution’s three options on receiving a basis of plea?
- Accept the basis - signs the document
- Reject the basis as inconsistent
- neither accept nor reject - if it is outside their knowledge
What is the 1st question the court asks about a basis of plea?
Is the basis of plea absurd? If so, the court will reject it and sentence on the prosecution version. If not absurd then the court asks whether the basis would make a material difference to sentence. If it does not make a material difference, the court sentences on the defence version. If it makes a material difference, then a Newton hearing must be held.
When does Prosec outline facts at sentencing?
- If sentence is adjourned from Trial
- always when D pleads guilty
What must the prosecution remind the Court of?
- Previous convictions
- ancillary orders sought (eg. compensation, restraining order)
- relevant sentencing guidelines
- Any legal requirements (eg. minimum terms)
- any victim impact statement
Can the Prosec suggest a specific sentence?
No, but they can inform the court of its powers
What is the Defence advocate’s role at this stage?
To mitigate on Ds behalf - explain personal circs, remorse, etc
When is a pre-sentence report required?
Before a custodia or community sentence, unless the court deems it unnecessary
When are medical reports used?
- When D wishes to introduce a report
- Where the court is considering sentend under Mental health act
What must the court have before passing a custodial sentence on someone with a mental disorder?
A report from medical practitioner
What is defence’s duty during mitigation?
To ensure that a lawful sentence is passed, and not to mislead the court
What are the 4 steps the judge takes when passing sentence?
- Determine the category of the sentencing guidelines
- Adjust for aggravating/mitigating factors
- Apply credit for guilty plea
- Apply the totality principle for multiple offences
What are the 3 typical sentencing categories?
- Greater culpability and greater harm
- Greater culpability and lesser harm or vice-versa
- Lesser culpability and lesser harm
Who publishes sentencing guidelines?
The Sentencing Council
Is the court bound to follow sentencing guidelines?
Yes - unless doing so would be contrary to the interests of justice
What happens after identifying the category?
The Court identifies a starting poing and range, and adjusts based on aggravating or mitigating factors
What is the difference between general and offence-specific aggravating factors?
Generally apply to any offence; offence-specific appear in the relevant guideline
What is the Totality principle in sentencing?
The sentence must be just and proportionate, taking account of multiple offences.
When are concurrent sentences appropriate?
For offences arising out of the same facts/incident
When are consecutive sentences appropriate?
For offences that arise from separate facts/incidents
Can a court increase sentence based on the offence’s prevalence alone?
No - only if supported by evidence from a Criminal Justice Board or Community Impact Statement
Can a court defer sentence?
Yes - for up to 6 months to allow D to show positive change
