Sentencing in Mag and CC

Question 1

When will the court grant an absolute or conditional discharge?

Answer 1

if the court is of the opinion (regarding nature of offence and character of offence) that it is inexpedient to inflict punishment

Question 2

Can discharges be combined with other sentences?

Answer 2

NO - cannot be combined for single offence. however can be given a discharge for one of mutiple offences and the court can sentence the offender to other things for the other offences

Question 3

What can discharges be combined with?

Answer 3

1. imposing a disqualification
2. compensation order
3. deprivation order
4. restitution order
5. confiscation order
6. order under S21A
7. make an order for costs

Question 4

A football banning order can be combined with a discharge?

Answer 4

cannot be combined with an abosolute discharge but can be with a conditional discharge.

Question 5

An absolute discharge is usually imposed to reflect what 3 circumstances?

Answer 5

• Usually imposed to reflect either:
• (1) the triviality of the offence,
• (2) the circumstances in which an offender came to be prosecuted,
• or (3) special factors relating to the offender.

Question 6

When can an absolute discharge be imposed?

Answer 6

Can be imposed on conviction of any offence, EXCEPT those set out in s12(1) Powers of Crim Court (Sentencing) Act 2000  i.e. offences where sentence is fixed by law or there is a mandatory minimum sentence.

Question 7

How is an absolute discharged passed as a sentence?

Answer 7

“Mr Smith, taking into account the triviality of this offence, I am going to discharge you absolutely”

Question 8

What are the consequences of breaching an absolute discharge?

Answer 8

There is no way of breaching an absolute discharge so breach proceedings don’t exist.

Question 9

What age of offender does a discharge apply to?

Answer 9

ALL

Question 10

What is a conditional discharge?

Answer 10

• A discharge (so again, no actual punishment) but with a condition attached.
• Condition = if the D commits another offence during the period specified (max 3 YEARS), they can be re-sentenced for the original offence and sentenced for the new offence.

Question 11

How long can a conditional discharge run for?

Answer 11

3 yrs

Question 12

What does S12(6) allow in regards to a conditional discharge?

Answer 12

• S12(6): a court may, on making an order for conditional discharge, allow any person who consents to give security for the good behaviour of the offender

Question 13

What offences can a conditional discharge not be imposed on? (3)

Answer 13

1. offences where sentence is fixed by law or there is a mandatory min sentence.
2. breach of sexual offenders prevention order / sexual harm prevention order
3. breach of an anti social behavioural order/ criminal behaviour order

Question 14

When can a conditional discharge not be given to a youth? (2)

Is this absolute?

Answer 14

(a) a person who has received 2+ youth cautions is convicted of an offence committed within 2 years of the date of the last of those cautions; OR
(b) a person who has received a youth conditional caution followed by a youth caution is convicted of an offence within 2 years of the date of the youth caution
o  the court must NOT order a conditional discharge, UNLESS ‘exceptional circumstances’ justify it

Question 15

How is a conditional discharge sentence passed in court?

Answer 15

“Mr Smith, you are conditionally discharged for a period of 12 months. That means if you don’t commit an offence for 12 months from today, there will be no further punishment for this offence. If, however, you do commit another offence during that 12-month period you will be sentenced for that new offence and the court may re-sentence you to this offence”.

Question 16

How can someone breach a conditional discharge?

Answer 16

committing a further offence during the period that the order is in force.

Question 17

What will happen if a person commits another offence on a conditional discharge?

Answer 17

upon convition (plea or verdict) of the second offence, the court will sentence D for offence 2, and MAY resentence him for offence 1

Question 18

Is the court obliged to re sentence a D if they breach a conditioanl discharge?

Answer 18

NO

Question 19

If a D was under 18 when they commited an offence and placed on conditional discharge, and have now turned 19 and committed a new offence, waht will happen?

Answer 19

• Court can deal with him for the original offence in any way it could do as if he had just been convicted of that offence (i.e. if has now turned 18, as an adult, even if wasn’t originally an adult when committed the offence. Subject to indictable-only offences, see below, fine or 6 months). [presumably relevant time as the date of conviction of the new offence]

Question 20

If a secondary offence is comitted on a conditional discharge, and the D is sentenced for the origianl offence. what happens to ancillary orders imposed with the conditional discharge? Give 2 examples?

Answer 20

• Sentencing for the original offence following breach always terminates the conditional discharge itself; BUT any ancillary order for compensation/costs made at the time of the discharge remains valid.

Question 21

IF the M court imposed a conditional discharge, but this is breached and hte CC is dealing with the secondary offence what happens?

Answer 21

• Sentencing powers for dealing with a breach by re-sentencing a D, following a plea/verdict of guilty: (Essentially: if m’ court imposed the conditional discharge, then the re-sentencing is limited to m’ court maximum for the original offence)

Question 22

Can a different M court deal with a conditional discharge breach sentenced?

Answer 22

One magistrates court may deal with breach of a conditional discharge imposed by a different m’ court, but only with consent of the original m’ court.

Question 23

What are the sentencing powers of the M court in regards to resentencing for a conditioanl discharge?

Answer 23

Can re-sentence D for the original offence to anything it could have sentenced him to at the time

Question 24

IF the crown court imposed the conditioanl discharge, but it is being resentenced in the M court, what happens?

Answer 24

Where Crown Court imposed the conditional discharge  the m’ court Cannot re-sentence the D, and must commit him to Crown Court to be sentenced for the breach, under s13(5) PCC(S)A 2000.

Question 25

IF a conditional discharge handed out by the CC is breached, and it is being resentenced in the CC, what happens?

Answer 25

Can re-sentence the D for the original offence to anything it (the Crown Court) could have sentenced him at the time

Question 26

IF conditional discharge is imposed on appeal. where will the sentence be deemed to have taken place for the purposes of resentencing?

Answer 26

• NB, where a conditional discharge is imposed on appeal, it shall be deemed: if made on appeal from m’ court, to have been imposed by that m’ court; and if made on appeal from Crown Court or CA, to have been made by the Crown Court.

Question 27

• Where an offender aged under 18 has been conditionally discharged by a m’ court in respect of an indictable-only offence (if an adult)  and the offender has now, on breach, turned 18 - What happens?

Answer 27

• Where an offender aged under 18 has been conditionally discharged by a m’ court in respect of an indictable-only offence (if an adult)  and the offender has now, on breach, turned 18
o  the powers of court are:
o to impose a fine for the original offence,
o AND/OR any sentence which a m’ court could deal with him if it had just convicted him of an offence punishable with imprisonment for a term not exceeding 6 months.

Question 28

What is the max fine in the M court?

Answer 28

Level 5 - Unlimited

Question 29

What is a level 1 fine?

Answer 29

200£

Question 30

Where a statue fails to set amount on summary conviction, what is assumed to be the max level?

Answer 30

Level 3 - £1,000

Question 31

For crimes committed before 12th March 2015, what applies in terms of max fines?

Answer 31

o NB, for crimes committed before 12 March 2015, previous limitations on max fine in m’ court apply: previous limitations on a ‘relevant offence’ that was punishable on summary conviction by a fine of £5k of more was subject to limitations. Now such offences are punishable by any amount, no limitations.
o For other offences, where the max fine was previously in excess of £5k, the max fine becomes a fine of any amount.

CC = Unlimited

Question 32

Can a fine be paid in instalments (must get exact answer)?

Answer 32

• A financial penalty requiring a D to pay a certain sum of money to the court on conviction.
• The amount is due immediately, and can only be paid in instalments with agreement of the court.
• But court can allow time for payment, or allow payment in instalments.

Question 33

When can a fine be imposed?

Answer 33

• Can be imposed on conviction (plea or verdict) of any offence, unless specifically prohibited by statute (eg an offence with a mandatory minimum sentence).

Question 34

What 2 sentences can fine not be imposed alongside for a SINGLE offence?

Answer 34

• A fine can be imposed alongside any other sentence EXCEPT for:

a) a hospital order;
b) a discharge (conditional or absolute) when sentencing for a single offence [[remember a discharge cannot be combined with a punitive measure]].

Question 35

When may a fine be combined with an immediate custodial sentence and still be seen as good sentencing? However which order would be more appropraite?

Answer 35

• A fine may be combined with an immediate custodial sentence, such as where the fine is being used as a means of removing an offender’s profit from his offending. But a more appropriate method to remove proceeds of offending is make a confiscation order.

Question 36

Crown Court when imposing a fine, may make an order (2)

Answer 36

a) allowing time for the payment of the fine;

b) allowing payment by instalments, of such amounts & dates as may be specified.

Question 37

When a D is given time to pay or allowed to pay in instalments for a fine - the fine ordinarily should be set at a level which allows the total amount to be paid within?

Answer 37

12 months - although no statutory basis prohbiting lnger

Question 38

Does the court have to fix installmenes if allowing a person to pay a fine in this manner?

Answer 38

NO - o Court can fix particular instalments (eg £20/week)
o OR can fix a term: simply allow a payment in instalments of any number and amount but fix a date by which the whole sum of the fine must be paid.

Question 39

What is the exception to the rule that a fine should ordinarly be able to be paid within 12 months?

Answer 39

corporate defendants - fine may be payable over a substantially longer period than for an indvidual.

Question 40

What is a financial circumstances order?

Answer 40

requires a D to report their asserts and finanical circumstances to court within a perscribed time limit

Question 41

Can a finanical cicumstances order be imposed bya CC and a MC COurt?

Answer 41

YES

Question 42

What happens if a D breaches a fianical circumstances order? Is this an offence?

Answer 42

YEs - offence within itself.

• Failure to do so, without reasonable excuse, is an offence itself, for which D can be summarily convicted to a fine not exceeding level 3 (£1,000).

Question 43

If an individual in a finanical circumstances order makes a statement which he knows to be false, is reckless to falsity or knowingly fails to diclose any material he is?

Answer 43

liable on summary conviction to a fine not exceeding level 4 (£2,500)

Question 44

When using a fine to sentence, and considering its amount, what should the fine do?

Answer 44

• The use of a fine as a sentence, and its amount, should reflect the seriousness of the offence, considering aggravating/mitigating factors. Eg fine inappropriate where the seriousness of the offence requires an immediate custodial sentence.
• The imposition of the maximum available fine should be reserved for the most serious instances of the offence.

Question 45

Should the existence of mitigation influence the amount payable on fine? what is an example?

Answer 45

• The existence of significant mitigation (eg a guilty plea) should normally preclude the imposition of a maximum fine.

Question 46

If a D has spent time in custody, but receiving the sentnece as a fine, what should happen?

Answer 46

• Where an offender had spent time on remand in custody, but then received a fine as the sentence for the offence  some credit should normally be given for the time spent in custody.

Question 47

A fine must be proprtionate to (2)

Answer 47

A fine must be proportionate to: (1) the gravity of the offence and (2) the means of the offender.

Question 48

When looking at the offender paying his fine, and his means to pay, can other people paying it for him be taken into account?

Answer 48

no - o Is about the means of the offender himself: in considering means, the court should not assume that someone other than the offender will be paying the fine).

Question 49

Can the court give a custodial setnence instead of a fine where D lacks means?

Answer 49

NO

Question 50

IF D is rich, can the fine be increased?

Answer 50

o BUT, where D is rich, it is proper to increase the fine, to increase its impact on the offender  although there must remain proportionality between the offence and fine.

Question 51

What does the crown court have to do when fgiving out a fine that the MC do not?

Answer 51

fix a term in default

Question 52

does failure to fix a term in default invalid a fine in the CC?

Answer 52

NO

Question 53

where fines are imposed for more than one offence in the CC and therefore a term in default is set, how do the term in default run?

Answer 53

• Where fines are imposed for more than one offence: the terms in default may be ordered to run concurrently OR consecutively
• and court may order that the term(s) to be served in default may run concurrently or consecutively to any other term of imprisonment/detention to which the offender is sentenced at that time or which he is currently serving.

Question 54

What is a term in default?

Answer 54

a term of imprisonment / detention to be served in default of hte fine

Question 55

IF an offender fails to pay a fine, what happens?(4)

Answer 55

they may be brought back before a magistrates’ court (regardless of whether an m’ court or Crown Court imposed the fine) and a means enquiry can be held. Court has power to:

a) Allow D more time to pay
b) Require D to pay instalments
c) Write off some or all of the fine (if the fine was imposed by Crown Court, the m’ court must obtain permission from that court before following this course)
d) Where D refuses to pay through wilful refusal or culpable neglect  he can be sentenced to the specified period of imprisonment in default. The court must have tried other means of obtaining the money first. [[NB, the normal 6-month max limit for imprisonment in m’ court does not apply for non-payment of a fine]]

Question 56

What is a community order?

Answer 56

a community sentence is a sentence that consits of or includes a community order or a youth rehabilitation order. It is a sentnece that requires D to comply with 1+ requirements available to a court to punish and/ or rehabilitate a D in the community.

Question 57

What must be passed to impose a community service order?

Answer 57

must pass the community threshold test. i.e. court must be satsified that the offence comitted by D was serious enough to warrent a community order.