Unit 24 Custodial Sentences Flashcards
(34 cards)
What custodial sentences are available?
(1) sentence of imprisonment
(2) sentences of (long-term) detention (U18 murder/serious offences)
(3) sentence of custody for life (O18 U21 serious offences)
(4) sentence of detention in young offender institution (O18 U21 less serious)
(5) a detention and training order
N.B. Committal for contempt of court or any kindred offence is not a ‘custodial sentence’
Can offenders U21 be committed to prison?
- Cannot be sentenced to imprisonment
- Cannot be committed to prison for any reason
- If remanded in custody, committed in custody for sentence, or sent in custody for trial, may be committed to prison for period before case disposed of
What is the maximum custodial sentence (irrespective of the court that the case is being dealt in)?
Statutory offence liable to imprisonment:
- Term of life usually specified in statute - if not, max = 2 years
Common law offence:
- Term “must not be disproportionate” to actual offence committed
What are the limits that apply to the Mags powers to imprison and what is the minimum custodial sentence that they can impose?
- Sentence must be at least 5 days
- Single summary offence: 6 months (unless a lower max sentence applies to that offence)
- 2 or more summary offences: 6 months
- 2 or more EW offences: 12 months
A was charged with EW and summary offences (and the whole thing was dealt with in the CC). A was then acquitted of the EW offences or they weren’t proceeded with. The summary offences still fall to be sentenced (e.g. common assault or criminal damage below £5,000). What are the CC’s sentencing powers?
When are the CC powers of sentencing limited to those available to the Mags? What are its powers in those cases?
They’re limited to those available in the Mags. I.e.
Max for:
- Common assault: 6 months
- Criminal damage below £5,000: 3 months (I think this is just bc that’s the max that the statute specifies in this case)
- Aggregate sentence: 6 months, less reduction for G plea
What do we mean by ‘custody threshold’?
Custody threshold = the rule that 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.
Except:
- (a) where the sentence is fixed by law; or
- (b) where there is a mandatory minimum sentence
How do we determine whether an offence is so serious that is passes the ‘custody threshold’? How do you assess this if you are dealing with multiple offences at once?
Depends on circumstances of individual offence and factors assessed by offence-specific guidelines
Where the case involves ‘associated offences’, the question is whether they are sufficiently serious in sum
Offences are associated if:
- (1) convicted/sentenced in same proceedings;
- (2) admitted in same proceedings, and D requests court to take into consideration for sentencing
If an offence passes the custody threshold, is a custodial sentence inevitable?
No
Can the court impose a custodial sentence in cases where O has failed to express a willingness to comply with a community order?
In exceptional circumstances, namely where O’s willingness to comply is necessary for the order (i.e. (1) mental health treatment; (2) drug rehabilitation; (3) alcohol treatment)
In deciding on the length of a custodial sentence, what is the guiding principle that the court must apply?
The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of—(a) the offence, or (b) the combination of the offence and one or more offences associated with it.
Except:
- (a) sentences fixed by law
- (b) mandatory min sentences
What is the effect of time remanded in custody on the prison sentence?
Automatically counts towards that time (no judicial discretion).
But n.b. if O was detained for another offence when they were remanded in custody for the offence in respect of which the court is now sentencing them, then that time doesn’t count
Is time spent on bail credited towards the period of custody?
Can be if:
- (1) a curfew condition of not less than 9 hours in any given day was imposed
- (2) an electronic monitoring condition was imposed
In such cases, the court must (there are some exceptions but we’re not told what they are) make a direction that the time should be taken into account.
BUT unlike time spent remanded in custody, even if these conditions are satisfied the time is not credited automatically.
How are the number of days spent on bail for which credit is given calculated?
(1) Take days on which O was subject to the relevant conditions (min 9h curfew, e-monitoring) - Incl. first day, even if not whole day; Excl. last day if spent in custody
(2) Deduct days where D temporarily released or broke a condition
(3) Divide by two
(4) Round up to nearest whole number
In imposing custodial sentences for more than one offence does the court impose a cumulative sentence for all offences?
No - it imposes separate sentences for each offence (but subject to the totality principle)
If the court fails to say whether sentences are to run concurrently or consecutively, what is the default position?
It is assumed that they run concurrently
N.B. court must also state clearly whether a new sentence is to run concurrently or consecutively with a sentence that O is already serving (i.e. if they’re already in prison bc of a previous conviction)
When should concurrent sentences be used?
When:
(1) Offences arise out of same incident/facts; or
(2) Series of offences of same or similar kind (esp when committed against the same person)
NB: should reflect overall criminality and presence of associated offences
When should consecutive sentences be used?
When:
(1) Offences arise out of unrelated incidents/facts
(2) Offences of same or similar kind, but overall criminality will not sufficiently be reflected by concurrent sentences
(3) One or more offence(s) qualifies for statutory min sentence and concurrent sentences would improperly undermine that min
NB: judge should add up and consider whether aggregate length is just and appropriate
When is there a duty to release the offender on licence?
Different rules apply for different kinds of custodial sentences. But it seems that all we need to know is that (at least in many cases) the duty arises after O has served 1/2 of the custodial sentence. The licence can be revoked and O can be required to return to custody to continue serving the sentence.
What is the minimum sentence for murder?
- Aged 21 and over at conviction – mandatory imprisonment for life
- Aged U21 at conviction – custody for life
- Aged U18 when COMMITTED – detention at Her Majesty’s pleasure
What are the rules regarding early release provisions of a person convicted of murder?
General rule = Court must normally order that early release provisions are to apply to O as soon as he has served that part of sentence specified in order
- That part = such as court considers appropriate taking into account: (1) seriousness of offence, or combination w/ associated offences (note: not dangerousness of offender); (2) effect of any credit given for remand in custody/on bail
- Once min term served, responsibility of Parole Board to ensure public protection
- Exception: Court may order that early release provisions do not apply and impose a ‘whole life’ min term if:
- (1) D aged 21 or over when offence committed and
- (2) seriousness of offence merits
- The court must state its reasons for deciding on order
When is there a minimum custodial sentence for a Class A drug offence and what is the minimum?
If it’s the third Class A drug offence convictions = custodial sentence of at least seven years
NB: Includes inciting, attempting, conspiring
Depending on when the offence was committed the court may waive this minimum and impose a shorter sentence:
- Before 28 June 2022: if it would be unjust in all the circumstances to impose the 7 year minimum
- On or after 28 June 2022: if there are exceptional circumstances that justify not imposing the minimum (i.e. this is a more stringent test)
What is the effect of a guilty plea on the minimum custodial sentence that must be imposed for the third class A drug offence?
Sentence cannot be reduced to less than 80% of the minimum (i.e. just under 5 years and 8 months), unless the court has waived the minimum.
When is there a minimum custodial sentence for domestic burglary offence and what is the minimum?
If it’s the third domestic burglary offence conviction in a row (one after the other) = custodial sentence of at least three years
Depending on when the offence was committed the court may waive this minimum and impose a shorter sentence:
- Before 28 June 2022: if it would be unjust in all the circumstances to impose the 3 year minimum
- On or after 28 June 2022: if there are exceptional circumstances that justify not imposing the minimum (i.e. this is a more stringent test)
What is the effect of a guilty plea on the minimum custodial sentence that must be imposed for the third domestic burglary?
Sentence cannot be reduced to less than 80% if the minimum (i.e. just under 2 years and 5 months), unless the court has waived the minimum.
