Sentencing Principles 1

Question 1

Court must have regard to the following purposes of sentencing

Answer 1

• The punishment of offenders
• The reduction in crime (including by deterrence)
• The reform and rehabilitation of offenders
• The protection of the public
• The making of reparation by offenders to persons affected by their offences

Question 2

For those under 18 the principal purpose of the youth justice system is

Answer 2

• The principal purpose of the youth justice system ‘is to prevent offending by children and young persons’,
• the statutory duty under the CYPA 1933, s. 44, to ‘have regard to the welfare of the child or young person’.

Question 3

Sentencing guidelines

Answer 3

• Every court
• Must follow any sentencing guidelines which are relevant to the offenders case, and
• Must in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so

Question 4

Determining the seriousness of an offence

Answer 4

• Where a court is considering the seriousness of any offence, it must consider
• Offenders culpability AND
• Any harm which the offence
• Caused
• Intended to cause or
• Might have foreseeably caused
• Once a provisional sentence is arrived at the court should take into account factors that may make the offence more serious and factors which may reduce seriousness or reflect personal mitigation

Question 5

Reduction in sentence for guilty plea in serious terrorism cases

Answer 5

• Cant be less than 80%

Question 6

Reduction in sentence for certain mandatory sentences

Answer 6

• If aged 18 or over it cant be less than 80% for
• section 312 (minimum sentence for threatening with weapon or bladed article);
• (b) section 313 (minimum of 7 years for third class A drug trafficking offence);
• (c) section 314 (minimum of 3 years for third domestic burglary);
• (d) section 315 (minimum sentence for repeat offence involving weapon or bladed article).

Question 7

Reduction where there are multiples offences sentenced on the same occasion

Answer 7

• Where multiple offences are being sentenced on the same occasion clarity requires that the proper reduction is made in respect of each sentence, rather than the sentences being totalled and reduction applied to the total, even if arithmetically this would produce the same final sentence
• However if D has entered pleas to different offences at different stages the court may decide whether to give differing levels of credit as appropriate or to take a view across the offences as a whole and make the same reduction for each offence

Question 8

Maximum level or reduction in sentence for guilty plea

Answer 8

• ⅓ if done at the first stage of proceedings

Question 9

Guilty plea indicated after the first stage of proceedings

Answer 9

• Max is 1/4

Question 10

Guilty plea indicated on first day of trail

Answer 10

• Max is 1/10

Question 11

Guilty plea indicated during course of the trial

Answer 11

• Should normally be decreased even further from 1/10 - maybe even to 0

Question 12

Exceptions to reduction for guilty plea - significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done,

Answer 12

• Where the court is ‘satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one third should still be made.
• Can’t just satisfy this exception if they delay the plea to assess strengths of case
• However it will apply in cases which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged

Question 13

Exceptions to reduction for guilty plea - Newton hearing

Answer 13

• ‘[i]‌n circumstances where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved
• Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction
• where a Newton hearing is set down and prepared for, but does not in the event proceed, it is a matter for the judge to decide what reduction, if any, should be made to the credit to which D would otherwise have been entitled

Question 14

Exceptions to reduction for guilty plea - lesser offence

Answer 14

• ‘if an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser offence or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication … was made …’

Question 15

Exceptions to reduction for guilty plea - certain firearms offences

Answer 15

• minimum five-year sentence for certain offences involving firearms that are prohibited weapons under the SA 2020, s. 311

Question 16

Aggravating factors - offence committed on bail

Answer 16

• S. 64 - In considering the seriousness of an offence committed while the offender was on bail the court must
• treat the fact that it was committed in those circumstances as an aggravating factor, and
• state in open court that the offence is so aggravated

Question 17

Aggravating factors - previous convictions

Answer 17

• S.65 - The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to—
• (a) the nature of the offence to which the relevant previous conviction relates and its relevance to the current offence, and
• (b) the time that has elapsed since the relevant previous conviction.
• Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) it must state in open court that the offence is so aggravated

Question 18

Aggravating factors - hostility

Answer 18

• S.66 - 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
• The court
• must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and
• must state in open court that the offence is so aggravated

Question 19

Aggravating factors - terrorist connection

Answer 19

• S.69 - If the offence has a terrorist connection, the court—
• (a) must treat that fact as an aggravating factor, and
• (b) 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—
• (a) is, or takes place in the course of, an act of terrorism, or
• (b) is committed for the purposes of terrorism.
• Offence is within this subsection if committed after 2021, punishable on indictment for more than 2 years and not
• Murder
• Manslaughter
• Kidnapping
• All other really bad stuff like taking hostages and making biological weapons
• OR
• Committed before 2021 but is
• Murder
• Manslaughter
• Kidnapping
• All other really bad stuff like taking hostages and making biological weapons

Question 20

Prevalance

Answer 20

• A judge may increase a sentence due to local prevalence only if there is strong supporting evidence.
• This evidence must come from an external, authoritative source (e.g., local Criminal Justice Board or a Community Impact Statement).
• Evidence must be presented:
• By a responsible body or senior police officer.
• Before the court in the specific case.
• With enough time for the defence and prosecution to respond
• Even if there is supporting evidence, a judge cannot automatically impose a higher sentence.
• The court must be satisfied that the harm caused in that locality is significantly worse than elsewhere.
• The circumstances must be exceptional and the sentence increase must be just and proportionate.

Question 21

The totality principle

Answer 21

• The Sentencing Council’s overarching guideline, Totality, states that the principle of totality comprises two elements:
• (a) the overall sentence should reflect all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors; and
• (b) be just and proportionate.

Question 22

Pre sentence reports

Answer 22

• If the offender is aged 18 or over, the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report.
• (3) If the offender is aged under 18, the court must obtain and consider a pre-sentence report before forming the opinion unless—
• (a) there exists a previous pre-sentence report obtained in respect of the offender, and
• (b) the court considers—
• (i) in the circumstances of the case, and
• (ii) having had regard to the information contained in that report or, if there is more than one, the most recent report,
• that it is unnecessary to obtain a pre-sentence report.
• Where a court does not obtain and consider a pre-sentence report before forming an opinion in relation to which the pre-sentence report requirements apply, no custodial sentence or community sentence is invalidated by the fact that it did not do so.

Question 23

Victim personal statements

Answer 23

• Victim personal statements provide a practical way of ensuring that the court will consider the evidence of the victim about the personal impact of the offence.
• The process is not an opportunity for the victim to suggest, or discuss, the type or level of sentence to be imposed. - The distinction is important
• Victims must be provided with information which makes it clear that they may make a statement but are under no obligation to do so

Question 24

Mentally disordered offenders - medical reports

Answer 24

• in any case where an offender is, or appears to be, suffering from a mental disorder, the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law.
• Unless in the circumstances of the case the court is of the opinion that is is unnecessary to do so
• A medical report is distinct from a pre-sentence report, and s. 232(7) clearly states that the ordering of a medical report does not displace the need to order a pre-sentence report under s. 30