Determining sentence

Question 1

What do courts consider when deciding appropriate sentence?

Answer 1

• Sentencing Code 2020 alongside other relevant guidelines
• courts must determine seriousness of offence and to do so, must consider:
  
  • offender’s culpability in committing offence and
  • any harm which offence caused, intended to cause or might have forseeably caused

Question 2

When must a court pass a custodial sentence or a community sentence?

Answer 2

Custodial order:
* when of the opinion that offence or combination of offence was so serious that neither fine alone nor community sentence can be justified for offence

Community order:
* when of the opinion that offence or combination of offence was serious enough to warrant such an order

statutory threshold

Question 3

What is culpability and what is harm?

Answer 3

Culpability:
* blameworthiness which is assessed by D’s role, level of intention and/or premeditation and extent of planning
* mere presence of factor inherent in offence should not be used to assess culpability (e.g., intention to cause serious harm is necessary for GBH)

Harm:
* assessment of damage caused to V
* whether damage caused was sustained or repeated
* in theft, assessed by financial loss resulting from theft and any additional harm suffered by V such as, emotional distress

Question 4

Sentencing Guidelines?

Answer 4

• MUST be followed by every court which are relevant to D’s case unless court is satisfied that it would be contrary to interest of justice to do so
• sentencing guidelines for use in MC and sentencing guidelines for use in CC are available
• overraching guidelines on general sentencing issues and principles such as Sentencing children and young people
• where no offence-specific guidelines, court will refer to General guideline: overraching principles or even CoA judgements to see how sentences have been reached for similar cases
  
  • General guidelines can be used with offence-specfic guidelines where factors aren’t covered

helps assess the offence categories such as (custodial sentence or on-custodial sentence)

Question 5

What happens at sentencing hearing?

Answer 5

• Prosecution opens facts, makes submission & application
• Defence mitigates
• Judge passes sentence

Question 6

What is the prosecution role in sentencing hearing?

Answer 6

• reminding court of:
  
  • any previous conviction
  • any ancillary orders that they seek (e.g., costs)
  • any relevant sentencing guidelines
  • any general sentencing issues to ensure lawful sentence is passed
  • any V impact statements which has been produced
• role is NOT to tell court or suggest to court what ultimate sentence may be

Question 7

What is the defence role in sentencing hearing?

Answer 7

general duty to ensure lawful sentence is passed
* legal representative must ensure what they put forward is consistent with their instructions and their duties not to mislead court
* defence may ask for pre-sentence report but common to ask for one before prosecution goes through opening case
* if pre-sentence report is ordered by court, case will be adjourned for a period
* pre-sentence reports can be orderd at PTPH ot at time of sending

Question 8

What is a pre-sentence report?

Answer 8

A report to assist court in determining most suitable method of dealing with an offender
- court MUST obtain a pre-sentence report before passing custodial or community sentence, unless it considers it unnecessary to do so
* probation input is needed before community order can be imposed to assess D’s suitability for any programmes - probation offiver will meet D and discuss offence and D’s attitude towards it

Question 9

What other reports can be obtained?

Answer 9

By order of court or by defence, other reports including medicial report or psychiatric report
* if court is contemplating a sentence pursuant to mental health act, then it must receive evidence from two medical practitioners stating that in their opinion D is suffering from a mental disorder