Setencing

Question 1

Purposes of sentencing

Answer 1

When determining the proportionate sentence to be imposed, the court will have regard to the various purposes of sentencing.
Section 57 SA 2020- In cases involving those aged 18 and over (at the date of conviction) the court must have regard to:
(a)the punishment of offenders,
(b)the reduction of crime (including its reduction by deterrence),
(c)the reform and rehabilitation of offenders,
(d)the protection of the public, and
(e)the making of reparation by offenders to persons affected by their offences.
The purposes are given equal weight though in a particular case some may be more important than others.

Question 2

Newton Hearings

Answer 2

Where a defendant pleads guilty on a basis that will make a material difference to sentence, the court must hold a Newton hearing to decide the factual basis upon which it should pass sentence (R v Newton).
What happens at a Newton hearing?
In the magistrates’ court, a Newton hearing is presided over by magistrates or a District Judge much like a regular trial. In the Crown Court it takes place without a jury. This is one of the limited number of occasions where a Crown Court Judge acts as the arbiter of both law and fact.
A Newton hearing is an exception to the rule that where a defendant enters a guilty plea there is no ‘trial’ phase to the process.
The prosecution makes an opening speech and calls evidence in the usual way and their witnesses can be cross-examined by the defence. The defendant is able to give evidence and call witnesses if they so wish. Both parties are entitled to address the Judge by way of a closing speech.
At the conclusion of the hearing the court must decide whether the prosecution has proved its version of the facts beyond reasonable doubt. If it has, the defendant will be sentenced on the prosecution version of the facts. If it has failed to prove their factual basis to that standard, the defendant will be sentenced on the defence version of the facts as set out in their basis of plea.
If the prosecution is able to prove their case beyond reasonable doubt and the defendant sentenced on their version of the facts, a further consequence for the defendant is that they lose some of the credit that they receive for pleading guilty. The Reduction in Sentence for a Guilty Plea guideline says that the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called, it may be appropriate to further decrease the reduction. The rationale must be that the defendant has used up some court time that otherwise would have been saved due to their plea and/or that witnesses who would have been spared from giving evidence due to their plea instead had to come to court and give evidence at the Newton hearing.

Question 3

Totality

Answer 3

When sentencing for more than one offence, a court must consider what the total sentence should be and arrive at one that is just and proportionate.
This is not as simple as adding the two (or more) sentences together, the Judge will consider whether consecutive or concurrent sentences are more appropriate in the circumstances.
Where the various offences arise out of the same facts it will usually be appropriate to pass concurrent sentences for each, and where they arise out of different facts, consecutive sentences are likely to be passed.

Question 4

Deferring sentence

Answer 4

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.

Question 5

Indications of sentence

Answer 5

There are two formal procedures for seeking an indication of sentence in the
event of a guilty plea. One in each court:
Magistrates’ court
The offence is either-way and the court has accepted jurisdiction during the allocation process.
At this stage, D is entitled ask for an indication of what their sentence would be were they to remain in the magistrates’ court and plead guilty.
The court does not have to give an indication of sentence but, if it does it can only say whether the sentence would be a custodial or a non-custodial sentence.
Only binding if D then pleads guilty.
Crown Court – Goodyear indication
D can ask for an indication of the sentence either before the PTPH or at any stage of the proceedings before the jury return their verdict.
Before asking for an indication D must:
Either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court
Give clear instructions to their counsel that D wishes to ask for an advance indication of sentence.
The giving of an indication is discretionary and it remains the decision of the Judge whether to give one or not.

Question 6

Seriousness

Answer 6

In order to decide on the appropriate sentence, the court will consider the Sentencing Code 2020 alongside any relevant sentencing guidelines.
The court must determine the seriousness of the offence.
The starting point to determine seriousness is to consider culpability and harm.
Section 63 SA 2020: Where a court is considering the seriousness of any offence, it must 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.

Question 7

Seriousness and thresholds

Answer 7

Where appropriate the court must consider whether either statutory threshold has been passed to justify imposing a custodial or community order.
Section 230 SA 2020:
The court must not pass a custodial sentence unless it is of the opinion that—
(a)the offence, or
(b)the combination of the offence and one or more offences associated with it,
was so serious that neither a fine alone nor a community sentence can be justified for the offence’

Section 204 SA 2020:
(2)The court must not make a community order unless it is of the opinion that—
(a)the offence, or
(b)the combination of the offence and one or more offences associated with it, was serious enough to warrant the making of such an order

Question 8

Culpability and harm

Answer 8

Culpability is essentially blameworthiness and is assessed with reference to the offender’s role, level of intention and/or premeditation and the extent and sophistication of planning.
The mere presence of a factor that is inherent in the offence should not be used in assessing culpability – so for example, intention to cause serious harm is a necessary element in a section 18 OAPA. What would increase culpability might be how the injuries were inflicted e.g. with a weapon.
Harm is an assessment of the damage caused to the victim.
So, in an assault it is a consideration of how injured the victim was and whether the assault was sustained or repeated.
In a theft it will be assessed by the financial loss resulting from the theft and any additional harm suffered by the victim or anyone else, for example injury or emotional distress.

Question 9

Sentencing Guidelines

Answer 9

Every court MUST follow any sentencing guidelines which are relevant to the offender’s case unless the court is satisfied that it would be contrary to the interests of justice to do so.
Sentencing guidelines are available for most of the significant offences sentenced in the magistrates’ court Sentencing guidelines for use in the magistrates’ courts and for a wide range of offences in the Crown Court Sentencing guidelines for use in Crown Court.
There are also overarching guidelines on general sentencing issues and principles such as Sentencing children and young people.
Where no offence-specific sentencing guideline exists, courts will refer to the General guideline: overarching principles. Judges in the Crown Court might also refer to Court of Appeal judgments to look at how sentences have been reached for similar cases.
The General guideline can also be used with offence-specific guidelines where factors are not covered, and overarching guidance is required.

Question 10

What happens at a sentencing hearing?

Answer 10

Prosecution open facts, make submissions & applications
Then
Defence Mitigate
Then
Judge passes sentence
Prosecution
The duties of a prosecutor extend to reminding the court of the following:
Any previous convictions
Any ancillary orders that the prosecution seeks (e.g. costs, compensation, restraining order)
Any relevant sentencing guidelines
Any general sentencing issues necessary to ensure that a lawful sentence is passed (e.g. the mandatory minimum sentence provisions)
Any victim impact statement which has been produced.
It is not the role of the prosecution to tell the court or to suggest to the court what the ultimate sentence may be.

Question 11

Defence

Answer 11

As with the prosecutor, the defence are under a general duty to ensure that a lawful sentence is passed.
Legal representatives must ensure that what they put forward is consistent with their instructions and their duties not to mislead the court.
The defence may ask for a pre-sentence report should they want one. It is, however, more common to ask for one before the prosecution goes through the process of opening the case. If a pre-sentence report is ordered by the court the case will ordinarily be adjourned for a period for this to happen.
Pre sentence reports can be ordered at the Plea and Trial preparation hearing or even at the time of sending.

Question 12

Pre-sentence reports

Answer 12

Section 30 SA 2020 states that a court must obtain a pre-sentence report before passing a custodial or community sentence, unless it considers it unnecessary to do so.
The report is to assist the court in determining the most suitable method of dealing with an offender. Probation input is needed before a community order can be imposed to assess the defendant’s suitability for any programmes
The probation officer will meet the defendant and discuss the offence and the defendant’s attitude towards it.

Question 13

Other reports

Answer 13

Sometimes other reports will be obtained, either by order of the court or by the defence.
These can include medical reports (if the defendant has a physical condition) or a psychiatric report.
If the court is contemplating a sentence pursuant to the Mental Health Act 1983 then it must receive evidence from two medical practitioners stating that in their opinion the defendant is suffering from a mental disorder

Question 14

The Code – approach to sentencing

Answer 14

The Code confirms the approach the court should take as:
Determine offence seriousness (i.e. harm and culpability).
Consider aggravating factors (i.e. those increasing seriousness), both statutory (e.g. previous relevant convictions, on bail, racial, religious, disability or sexual aggravation) and other non-statutory matters (e.g. alcohol, abuse of power, breach of trust).
Consider mitigating factors (i.e. those reducing seriousness), e.g. those relating to the offence, such as provocation or excessive self-defence; and those relating to the offender, such as positive good character, offender’s vulnerability, mental health, remorse or other personal mitigation.
Consider any assistance given to the prosecution.
Consider the appropriate reduction for any guilty plea.
Consider totality.
Appropriate ancillary orders must be considered e.g. compensation, disqualification, forfeiture, restraining order, costs, surcharge, Criminal Courts Charge.

Question 15

Determining sentence

Answer 15

Determine which category of the sentencing guidelines applies
Then
Adjust the starting point up or down according to aggravating/ mitigating factors
Then
Reduce sentence to credit any guilty plea
Then
If multiple offences, ensure the final, overall sentence is just and proportionate
Category
For most offences, the sentencing guidelines set out the appropriate range of sentence based on:
Greater culpability and greater harm.
Greater culpability and lesser harm, or greater harm and lesser culpability.
Lesser culpability and lesser harm.
The highest level of offence category would be 1, the lowest 3, and the middle category 2.
The guideline will then provide a sentence starting point and range for each category.

Question 16

Common aggravating factors

Answer 16

Statutory factors
Previous conviction(s), particularly where a pattern of repeat offending is disclosed
Offence committed whilst on bail for other offences
Offence was racially or religiously aggravated
Offence motivated by, or demonstrating, hostility to the victim based on his sexual orientation (or presumed sexual orientation) or on the victim’s disability ( or presumed disability)
Commission of an offence while under the influence of alcohol or drugs
Planning of an 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 previous sentences
Offence committed whilst on licence
Offence motivated by hostility towards a minority group, or a member or members of it
Use of a weapon to frighten or injure victim
Multiple victims
Deliberate and gratuitous violence or damage to property, over and above what is needed to carry out the offence
An especially serious physical or psychological effect on the victim, even if unintended
Victim is particularly vulnerable
Deliberate targeting of vulnerable victim(s)
An intention to commit more serious harm than actually resulted from the offence
Location of the offence (for example, in an isolated place)
A sustained assault or repeated assaults on the same victim
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 (e.g. taking photographs of a victim as part of a sexual offence)
Abuse of a position of trust
Abuse of power

Question 17

Common mitigating factors

Answer 17

Common mitigating factors for any offence:
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
Good character and/or lack of previous convictions
Any personal mitigation
To return to the example
There are a number of relevant facts here:
Use of a knife
Lack of remorse
Fleeing from the scene, leaving the victim bleeding
Reasonable recovery from physical injuries but ongoing psychological effect on the complainant
D has no previous convictions involving serious violence
No previous custodial sentences
Incident can be viewed as a relatively isolated incident involving a single blow
D in full time employment
Partner and children
Example continued
Note the following
As the use of a knife has been used to indicate higher culpability it cannot also be used also as an aggravating factor. That would be double counting.
The ongoing psychological effect on the complainant, however, was not regarded as indicating greater harm and therefore elevate this offence into category 1. Instead, its effect is that of an aggravating factor which raises the seriousness of the offence within the category range.
Although the presence of remorse is often a mitigating factor, its absence is not necessarily to be regarded as an aggravating one.

Question 18

Credit for a guilty plea

Answer 18

Defendants are given ‘credit’ or a discount on their sentence if they plead guilty. The amount of credit depends on when the guilty plea was entered.
The Reduction in Sentence for a Guilty Plea Guideline says that the first stage of proceedings will normally be the first hearing where a plea or indication of plea is sought and recorded by the court. However, the safest way the defendant can obtain maximum credit is, either by:
* entering a guilty plea to a summary only or either way offence at the first hearing; or
* where the matter is indictable only, by providing an unequivocal indication at the first hearing that the defendant intends to plead guilty and the defence team will contact the Crown Court to arrange for this to happen imminently.
Guilty plea at first stage of proceedings – max 1/3
Guilty plea after the first stage of proceedings – max ¼
Guilty plea on the day of trial – sliding scale with max 1/10

Question 19

Passing sentence

Answer 19

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

Question 20

Bind over

Answer 20

It can be imposed in the magistrates’ court and the Crown Court.
A bind over, however, stands apart from the other sentencing options in that it can be, and often is, imposed on someone instead of them entering a guilty plea or being tried for an offence. It can even be imposed following an acquittal or on a witness in a case.
A person can be bound over by a court to ‘keep the peace’ for a sum of money that they forfeit if they fail to do so.
If a defendant breaches the peace they are liable to pay the monetary sum that they were bound over for.

Question 21

Discharge

Answer 21

Absolute discharge
S 79 SA2020
An absolute discharge is the lowest form of sentence available to the magistrates’ court and the Crown Court. It is usually imposed to reflect either the triviality of an offence, the circumstances in which an offender came to be prosecuted or special factors relating to the offender. It is in effect no punishment at all since there is nothing that the defendant must do or not do to comply with it.
Conditional discharge
S 80 SA 2020
A conditional discharge, as the name suggests, is a discharge (so again, no actual punishment) but with a condition attached to it. The condition is that if the defendant commits another offence during the period specified, they can be re-sentenced for the original offence and sentenced for the new offence. The specified period must be no more than three years.
The magistrates’ court and the Crown Court can both impose a conditional discharge.

Question 22

Fines

Answer 22

The magistrates’ court and the Crown Court can both impose fines. In the Crown Court the power to fine is for any amount with no upper limit. In the magistrates’ court, fines are set on a standard scale from Level 1 (£200) to Level 5 (unlimited).
A fine is a financial penalty that requires a defendant 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 the agreement of the court.
Fines
Fines can be imposed on conviction (guilty plea or verdict) of any offence unless specifically prohibited by statute (e.g. an offence that imposes a mandatory minimum sentence). A fine can be imposed alongside any other sentence except for a hospital order or alongside a discharge (conditional or absolute) when sentencing for a single offence. Although there is no general prohibition on doing so, it is generally accepted as undesirable to combine a fine with imprisonment.
Fines are the most common type of sentence given by the courts (about 80% of offenders receive a fine) mainly because they are given for lower-level crimes such as minor driving offences and theft.
Before imposing a fine, the court can either enquire of the defendant (in person or through their advocate) as to their means. This is usually by asking the defendant to fill in a means form in which they set out their income and outgoings.
If an offender fails to pay their fine, they may be brought back before a magistrates’ court (irrespective of which court issues the fine) and as a last resort D can be sentenced to a period of imprisonment in default.

Question 23

Community Order

Answer 23

A Community Order is a sentence that requires a defendant to comply with one or more requirements to punish and/or rehabilitate a defendant in the community.
The court must not make a community order unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant the making of such an order.
s 204 Sentencing Act 2020
Community Order
The offender must be over 18 and the offence must be punishable with imprisonmen.t
When making a Community Order, the court must impose at least one of the requirements set out in s 201 and Sch 9 SA 2020. Multiple requirements must be compatible one with another.
The maximum length of a community order is three years.
(2) A community order must have at least one requirement, including a punitive element unless a fine is imposed or there are exceptional circumstances that would make it unjust (s.208 (10) – (11)). (3 (4) Requirement/s must avoid conflict with the offender’s religious beliefs and/or interference with the offender’s times of work and/or education. (5) The court may have regard to any period spent on remand, or qualifying electrically monitored curfew, when determining the restrictions/s on liberty which such a sentence imposes
Community Order
Though there are a number of different requirements available to a court, on the next few pages you will find details of some of those.
The maximum length of any Community Order is three years. A court must specify a period of operation for a Community Order and that in effect is an overall limit within which the requirements must be completed, unless a specific time period is designated for a particular requirement. Where a defendant completes their order within the time period specified, they or the Probation Service may apply for the order to be discharged.
Section 30 SA 2020 states that a court should obtain a pre-sentence report before imposing a Community Order unless it thinks it unnecessary to do so. In practice, the Probation Service write reports and supervise Community Orders so courts will want a report unless it’s obvious that a requirement is suitable.

Question 24

Community Order requirements

Answer 24

Unpaid work requirement – carry out unpaid work as directed by the Probation Service – 40-300 hours to be completed within 12 months
Rehabilitation activity requirement – attend appointment or participate in activities as directed by the Probation Service – The maximum number of days that the defendant must attend as instructed
Programme requirement – Participate in an accredited programme (e.g. anger management, alcohol treatment) – That a programme is needed and the number of days upon which the defendant must attend
Prohibited Activity requirement – Not do a certain thing as defined by the court (e.g. attend a football match) – What the prohibited article is and whether it is at specified days and/or times and/or a period of time
Curfew requirement – Stay at the specified place (usually a specified address) during the times specified – 2-16 hours in any 24 hours; max term 12 months; must consider those likely to be affected; must be electronically monitored unless the person whose cooperation is necessary does not consent or it is otherwise inappropriate
Exclusion requirement - Not enter a specific area or keep away from a particular person - Maximum period two years: may be continuous or only during specified periods; must be electronically monitored unless
Residence requirement – Live at a particular address – to reside as directed
Foreign travel prohibition requirement – Prohibit travelling, on a particular day or days, or for a particular period, to a particular country or countries. – Not to exceed 12 months
Mental health treatment requirement – undergo mental health treatment -The length of the treatment, that the defendant has a condition susceptible to treatment, that they are willing to undergo treatment, that a hospital order is not required
Drug rehab requirement - Submit to treatment and take a drug test as and when required to prove that they are not taking drugs - Offender needs to be dependent on drugs and require treatment. Must be suitable for the treatment and must consent
Alcohol treatment requirement - Attend treatment under the direction of a specified person to reduce or eliminate their dependency on alcohol - Offender needs to be dependent on alcohol and require treatment. Must be suitable for the treatment and must consent
Alcohol abstinence and monitoring requirement - Abstain from consuming alcohol, or
not consume alcohol so there is more than a particular level of alcohol – maximum of 120 days
Attendance centre requirement - For defendants 18–24 only. Attendance centres punish the offender by loss of their free time but also provide a disciplined learning environment - The total number of hours that they must attend (between 12 and 36)
Electronic monitoring requirement - Apply when the defendant must be subject to a community order requirement that must be monitored by an electronic tag - An electronic monitoring requirement must be imposed where a curfew or exclusion requirement has been made unless the court considers it inappropriate to do so. It can use an electronic monitoring requirement in conjunction with any other requirement if it wishes to do so

Question 25

Community Order

Answer 25

The consequences of breach?
If an offender fails without reasonable excuse to comply with any requirement of their Community Order, they must be warned that their failure is unacceptable. If they fail without reasonable excuse to comply with any requirement of their Community Order again, breach proceedings must be instituted against the offender.
The offender will be brought back before the court and have the breach put to them. They can either admit or deny the breach; if they choose the latter, the court will hold a trial as to whether there was a failure without reasonable excuse.
If the offender admits the breach or the court finds that there was a breach following a denial, then it must deal with them in one of the following ways set out in Sch 10 SA 2020:
By amending the order to make it more onerous.
By fining the offender up to £2,500.
By revoking the Community Order and re-sentencing the offender for the offence in respect of which the order was made. Where the court decides to do this, they must take into account the extent to which the offender has complied with the order.
The court is able to extend (once only) the period of the Community Order by up to six months beyond the usual three-year limit if necessary.
Community Order
The consequences of breach
Where the offender has willfully and persistently breached the requirements of the community order, and the court decides to revoke the Community Order and re-sentence the offender for the offence in respect of which the order was made it is important to note that the court does have the power to impose a custodial sentence not exceeding six months, even in respect of an offence which was not an offence punishable with imprisonment.

Question 26

Discretionary sentences

Answer 26

Most imprisonable offences carry discretionary custodial sentences- i.e. a court may send them to prison provided the custodial threshold under s 230 Sentencing Act 2020 has been reached.
A custodial sentence must not be passed unless the court is satisfied that the offence
or offences are so serious that neither a fine nor a Community Order can be justified.
Where a custodial sentence is imposed it must be for the shortest possible period to reflect the purpose of the sentence (such as the punishment of offenders, reduction of crime, reform and rehabilitation of offenders, protection of the public and the making of reparation by offenders).
The court uses sentencing guidelines to assist in determining the seriousness of an offence and the length of any sentence. The process a court goes though is covered in another element.
A determinate custodial sentence (immediate imprisonment)
A prison sentence for a defined period of time. e.g. 6 weeks, 12 months, 3 years or 8 years.
These are the most usual custodial sentences passed.

Question 27

Determinate custodial sentence

Answer 27

Where a defendant falls to be sentenced to a period of imprisonment for more than one offence, the court must consider whether to make the sentences concurrent or consecutive to each other, i.e.
Two 12-month sentences to run concurrently with each other = a total sentence of 12 months
Two 12-month sentences to run consecutive to each other = a total sentence of 24 months
The Judge must consider totality when passing custodial sentences for multiple offences and this includes whether sentences run consecutively or concurrently. Generally speaking, offences that arise out of the same events will attract concurrent sentences. Consecutive sentences are generally used where the defendant has done something that needs to be punished separately, e.g. committing an offence whilst on bail for another offence.
Determinate custodial sentence
Who has the power to impose this sentence
The magistrates’ court can impose a maximum of:
- 6 months for a summary only offence;
- 6 months for a single either way offence; or
- 12 months for two or more either way offences.
The Crown Court has unlimited powers of imprisonment subject to the statutory maximum for each offence.
In both cases it must be noted that these are the maximum powers. If an offence has a statutory maximum below the court’s overall maximum sentencing power, then the court must follow the statute (e.g. criminal damage £5000 or below is summary only and has a maximum of 3 months).
Determinate custodial sentence
If a defendant has been remanded in custody for any period prior to sentence, then that period is automatically counted towards their sentence. This is administered by the Home Office once the defendant is serving.
Depending on the length of the sentence there might be a period of post sentence supervision as well.
In addition, if a defendant has been on bail with a curfew condition, which was electronically monitored, where the number of hours under curfew was at least nine, they are entitled to credit towards their sentence.
This is not automatic (unlike time on remand) and the court must expressly state that the time under curfew counts. Each day on bail is calculated as equal to half a day serving a prison sentence and rounded up to the nearest whole number. Note, any days upon which the curfew was breached does not count towards this calculation.

Question 28

A suspended sentence of imprisonment

Answer 28

A suspended sentence of imprisonment must be for offending that crosses the custody threshold but the defendant does not go into immediate custody and if they fulfil certain criteria, they can avoid prison entirely.
A magistrates’ court may suspend any determinate custodial sentence of between 14 days and 6 months.
The Crown Court may suspend any determinate custodial sentence of between 14 days and 2 years.

Question 29

Suspended sentence

Answer 29

A suspended sentence has three elements to it:
The custodial term: How long a custodial term they would have received but for it being suspended.
The operational period: How long the custodial term is suspended for. This must be between six months and two years.
The supervision period: How long the defendant must be supervised by the Probation Service for. This is optional, but if used, must be between six months and two years and equal to or shorter than the operational period.
When passing a suspended sentence, the court may (but not must) make the defendant subject to any one or more of the Community Order requirements set out in Schedule 9 SA 2020.

Where a breach is alleged by virtue of (b) or (c) above, the same process as with breach of a Community Order exists, i.e. the defendant must be warned on their first breach and if they commit another breach within 12 months of a warning, breach proceedings will then be instituted.
If the breach is found proved or is admitted then the court must activate the suspended custodial sentence in part or whole having regard to the extent to which the defendant had complied with the order prior to breach, unless it would be unjust to do so.

Question 30

Minimum sentences

Answer 30

Minimum sentences for a third domestic burglary or third Class A drugs offence
For some serious offences, statute prescribes minimum sentences that must be imposed unless there are exceptional circumstances:
seven years’ imprisonment for a third Class A drug trafficking offence
three years for a third domestic burglary
five years for certain firearms offences
six months for a second offence of possessing a weapon
six months for threatening with a weapon.
Minimum sentences - Third Class A drugs offence
Only the Crown Court has jurisdiction to impose this sentence
For the Class A drug trafficking offence:
(a) The defendant must have committed three Class A drug trafficking offences.
(b) They must chronologically have occurred in this order:
(i) Commission of offence 1
(ii) Conviction (plea/verdict of guilty) of offence 1
(iii) Commission of offence 2
(iv) Conviction (plea/verdict of guilty) of offence 2
(v) Commission of offence 3
(vi) Conviction (plea/verdict of guilty) of offence 3
If convicted of offence 3, the court must pass a minimum custodial sentence of seven years unless it would be unjust to do so. If the defendant enters a guilty plea at the first opportunity then the reduction must be such that the final sentence is still at least 80% of the minimum seven-year term.
That is, unless the court states that it would be unjust to pass the minimum term, in which case the final sentence can be below the 80% of the prescribed minimum term.
Minimum sentence - Third domestic burglary
For burglary, all of the qualifying offences must be domestic burglaries, i.e. those where the place burgled was in some way a dwelling. Burglary is ordinarily an either-way offence. Where a defendant faces a third potential conviction, they must be committed to the Crown Court as the prescribed minimum is three years.
Defendants are often sentences for more than one burglary offence at a time.
A defendant may therefore commit:
12 domestic burglaries and be convicted of those. One of those will count as commission 1 and conviction 1.
18 further domestic burglaries after the first 12, which will count as commission 2 and conviction 2.
20 further domestic burglaries which will count as commission 3 and conviction 3.
However, given these are minimum terms the court is, of course, at liberty to pass a longer sentence than the three years…
There is a maximum of 20% reduction on a guilty plea.

Question 31

Extended determinate sentence

Answer 31

Extended sentences are imposed in certain types of cases (specified violent, sexual or terrorism offences) and where the court has found that the offender is dangerous.
It is the licence period which is extended not the period of custody as an extended licence period is required to protect the public from risk of harm.
Extended determinate sentences s 254-257 SA 2020
The extension period must—
(a)be at least 1 year, and
(b)not exceed—
(i)5 years in the case of a specified violent offence;
(ii)8 years in the case of a specified sexual offence or a specified terrorism offence.
The overall term of an EDS imposed cannot exceed the maximum term permitted for the offence.
A prisoner serving an EDS is eligible to apply for parole at the 2/3 point of the custodial term and must be released at the end of the custodial period.

Question 32

Mandatory life sentence for murder

Answer 32

Where a defendant is convicted of murder, (which is indictable only) the court must pass a mandatory life sentence. It has no discretion to pass any other sentence. A mandatory life sentence is not available for any other offence than murder.
On sentence the court will fix a minimum term. Once that minimum term has expired the defendant can apply for release to the Parole Board who has ultimate discretion as to when a defendant is released. If released the defendant remains on licence for life.
Mandatory life sentence for murder
The minimum term for murder is based on the starting points set out in Schedule 21 of the Sentencing Code. The Judge will decide which starting point applies and then adjust it based on the aggravating and mitigating factors present.
For the most serious cases of murder, an offender may be sentenced to a life sentence with a ‘whole life order.’ This means that their crime was so serious that they will never be released from prison. There are never usually more than about 100 prisoners serving whole life orders.
The remaining starting points are 30, 25 and 15 years.

Question 33

Statutory life sentences

Answer 33

Offenders who are considered dangerous or who are convicted of a second, very serious offence may be sentenced to imprisonment for life. The provisions are contained in the SA 2020.
Unlike the life sentence for murder which is mandatory there is still an element of discretion in the imposition of these life sentences.
There are also offences such as rape or robbery for which the maximum sentence is life imprisonment. It is, however, unheard of for offenders convicted of these offences to get a life sentence without fulfilling the statutory provisions under the SA 2020.
Statutory life sentences
Life for dangerous offenders
Where an offender is:
convicted of an offence set out in Schedule 19 of the Sentencing Code; and
the court is of the view that the offender is dangerous; and
the offence justifies a life sentence.
Life for second listed offence
Where an offender is:
convicted of an offence set out in Schedule 15 of the Sentencing Code; and
both the sentence condition and the previous conviction condition are satisfied;
unless it would be unjust to impose a life sentence.