Setencing Flashcards
(33 cards)
Purposes of sentencing
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.
Newton Hearings
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.
Totality
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.
Deferring sentence
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.
Indications of sentence
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.
Seriousness
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.
Seriousness and thresholds
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
Culpability and harm
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.
Sentencing Guidelines
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.
What happens at a sentencing hearing?
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.
Defence
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.
Pre-sentence reports
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.
Other reports
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
The Code – approach to sentencing
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.
Determining sentence
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.
Common aggravating factors
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
Common mitigating factors
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.
Credit for a guilty plea
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
Passing sentence
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
Bind over
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.
Discharge
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.
Fines
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.
Community Order
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.
Community Order requirements
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
