1
Q
Which Legislation governs Sentencing?
A
The Sentencing Act (“SA”) 2020.
Parts 2 to 13 constitute the Sentencing Code (the “Code”).
2
Q
What are the Five Purposes of Sentencing?
A
- Rehabilitation: To help Offenders to change their behavior.
- Protection of the Public: To prevent Offenders from causing further harm.
- Reduction of Crime: To discourage Recidivism and others from Offending.
- Reparation to Victims: To compel Offender to make amends to their Victims.
- Proportionate Punishment: To impose a penalty proportionate to the Offence.
All Purposes are weighed equally, although some may take precedence depending on the Offence and Offender’s circumstances.
3
Q
What are the Two Types of Maximium Sentence?
A
- Court Maximum: The highest Sentence a given Court can prescribe.
- Statutory Maximum: The highest Sentence any Court can prescribe for a given Offence.
4
Q
What is the Procedure for Submitting a Guilty Plea while Disputing Facts?
A
Step 1 — Defence Basis:
- The Defence submits a Written Basis of Plea, disputing Facts that would affect the Sentence’s severity.
Step 2 — Prosecution Basis:
- The Prosecution will decide whether it accepts the Defence Basis.
- If it does, the Basis will proceed to the Judge.
- If it does not, it will submit a Basis of its own and move the issue to the Judge.
Step 3.1 — Judicial Evaluation, Basis Accepted:
- The Judge considers whether the Defence Basis is real and true.
- If it does, it will Sentence on the Defence Basis.
- If it does not, it will call a Newton Hearing.
Step 3.2 — Judicial Evaluation, Basis Rejected:
- The Judge considers whether the Defence Basis is absurd.
- If it does, it will Sentence on the Prosecution Basis.
- If it does not, it will consider whether the Prosecution’s objection is material to Sentencing.
- If it does, it will call a Newton Hearing.
- If it does not, it will Sentence on the Defence Basis.
5
Q
What is a Newton Hearing?
A
A Hearing to resolve a Factual Dispute arising from a Guilty Plea that is relevant to Sentencing.
In the Crown Court, this take place without the Jury.
6
Q
What is the Procedure for a Newton Hearing?
A
- Prosecution Evidence: The Prosecution presents its arguments, Evidence, and Witnesses.
- The Prosecution must prove Beyond a Reasonable Doubt the Prosecution Basis.
- Defence Evidence: The Defence presents its arguments, Evidence, and Witnesses.
- Cross-Examination of Prosecution Witness is permitted.
- Submissions and Ruling: The Parties make submissions, and the Judge reaches a decision.
- If the Prosecution fails to prove its Basis, the Judge will Sentence on the Defence Basis.
7
Q
What is the Impact of an Unsuccessful Newton Hearing for the Defendant?
A
The Sentencing Credit it received for Pleading Guilty is halved, with steeper penalties possible if Witnesses were called.
8
Q
What is the Totality Principle?
A
When Sentencing for multiple Offences, the Court must ensure the Total Sentence is just and proportionate.
The Court will apply this Principle when determing whether to pass Concurrent or Consecutive Sentences.
9
Q
Can the Court Defer Sentencing?
A
Yes, by up to 6 months, in order to:
- Observe the Defendant’s conduct in the interim; and
- Better inform the Sentencing decision.
10
Q
When is an Indication of Sentence available in the Magistrates’ Court?
A
During the Allocation of an Either-Way Offence.
- In this case, the Defendant is entitled to seek an Indication.
- Although the Magistrate need not accept, if it does, it will only Bind if the Defendant Pleads Guilty immediately after.
11
Q
When is an Indication of Sentence available in the Magistrates’ Court?
This is otherwise called a ‘Goodyear Indication’.
A
- The Parties agree on the Facts or a Written Basis; and
- The Defendant clearly instructs counsel to seek an Indication.
If granted, it indicates the Maximum Sentence if a Guilty Plea is entered at that Stage.
12
Q
What is the Effect of a Goodyear Indication?
A
- The Proscution cannot appeal the Indication.
- The Judge cannot pass a Sentence exceeding the Indication.
13
Q
What does the Court consider when determining a Sentence?
A
- The Offender’s Culpability in committing the Offence.
- The Harm the Offence:
- Caused.
- Was intended to cause.
- May foreseeably have caused.
14
Q
What constitutes Culpability?
A
Blameworthiness, as shown by:
- The Offender’s role in the Offence.
- The Offender’s level of intention.
- The Offence’s level of planning and sophistication.
Factors inherent to the Offence itself should not be considered when assessing Culpability.
15
Q
What constitutes Harm?
A
Damage caused to the Victim or Society, including:
- Physical Damage.
- Economic Damage.
- Emotional Distress.
- Psychological Damage.
16
Q
When will the Court decide to Impose a Community Sentence?
A
The Offence(s) is serious enough to warrant such a Sentence
17
Q
When will the Court decide to Pass a Custodial Sentence over a Non-Custodial?
A
- The Offence(s) is so serious that neither a Fine alone nor a Community Sentence can be justified.
- The Sentence must be for the shortest Term that reflects:
- The Offence’s seriousness; and
- The Purpose(s) for Sentencing.
18
Q
Must Courts follow Sentencing Guidelines?
A
Yes, unless the Interests of Justice demand others.
19
Q
What is the Procedure for Sentencing?
A
1 — Prosecution Case:
- The Prosecution will open with the Facts and make its submissions and applictions. It may:
- Recall Prior Convictions.
- Requesting Ancillary Orders.
- Present Victim Impact Statements.
- Highlight relevant Sentencing Guidelines.
- The Prosecution should not suggest a Sentence.
2 —Defence Mitigation:
- The Defence presents factors in migitaiton of the Prosecution Case. Accordingly, it may request a Pre-Sentence Report.
- It must not mislead the Court.
3 — Sentencing:
- The Judge considers both Parties’ submissions and passes a Sentence.
20
Q
What is a Pre-Sentence Report?
A
A Report on the Offender’s background, attitude, and suitability for specific programmes.
- This is mandatory prior to a passing Custodial or Community Sentence, unless deemed unnecessary.
It is prepared by Probation Officers and involves meeting the Defendant and discussing the offence.
At times, Medical or Psychiatric Reports may be useful to the Court or the Defence.
21
Q
When is Medical Evidence required to a Pass a Sentence?
A
When the Sentence concerns the Mental Health Act 1983, in which case, Evidence from two Medical Practitioners is necessary.
22
Q
What is the Sentencing Code’s Prescribed Approach to Sentencing?
A
1 — Seriousness:
- Evaluate Culpability and Harm to determine the Offence’s Category.
2 — Aggravating Factors:
- Consider factors that increase Seriousness to increase the Starting Point.
3 — Mitigating Factors:
- Consider factors that decrease Seriousness to decrease the Starting Point.
4 — Offender Assistance to Prosecution:
- Weigh any aid given by the Offender to the Prosecution.
5 —Sentencing Credit:
- Adjust the Sentence based on the Guilty Plea’s timing.
6 — Totality Principle:
- Apply the Totality Principle.
7 — Ancillary Orders:
- Consider the effect of Ancillary Orders on fairness.
23
Q
What are the Three Offence Categories?
A
Category 1:
- Greater Culpability, Greater Harm.
Category 2:
- Greater Culpability, Lesser Harm.
- Lesser Culpability, Greater Harm.
Category 3:
- Lesser Culpability, Lesser Harm.
24
Q
What are the Statutory and Non-Statutory Aggravting Factors?
A
Statutory Factors:
- Previous Convictions.
- Offence Committed While on Bail.
- Racially or Religiously Aggravated Offences.
- Hostility Based on Sexual Orientation or Disability.
Non-Statutory Factors:
- Impact on Victim.
- Use of a Weapon.
- Location and Timing.
- Group or Gang Activity.
- Professional Offending.
- Abuse of Trust or Power.
- Planning and Premeditation.
- Particularly Vulnerable Victims.
25
What are the Mitigating Factors?
* **Age**.
* **Remorse**.
* **Provocation**.
* **Good Character**.
* **Role** in the Offence.
* **Personal Circumstances**.
* **Mental Illness** or **Disability**.
* **Lack** of **Previous Convictions**.
26
How much Sentencing Credit will a Defendant get for Pleading Guilty?
**At the First Stage:**
* Up to a **One-Third** Sentence Reduction.
**After the First Stage:**
* Up to a **One-Fourth** Sentence Reduction.
**On the Day of Trial:**
* Up to a **One-Tenth** Sentence Reduction.
## Footnote
The First Stage is the First Hearing in the Magistrates' Court, as that is the first opportunity to indicate a Guilty Plea.
27
What are the Judicial Obligations when Passing a Sentence?
* **Explain Sentence:** Explain the Sentence in clear language to ensure the Defendant understands.
* **Reference Guidelines:** Identify the Sentencing Guidelines used and explain any deviations.
* **Justify Custody:** Explain why the Custody Threshold was met in this Case.
* **Highlight Factors:** Outline the Aggravting and Mtigiating Factors considered.
* **Account for Credit:** Specify any Credit given and why.
28
What are the Types of Non-Custodial Sentences?
| These are called **First Part Sentences**.
* **Fines**.
* **Bind Over**.
* **Community Order**.
* **Absolute Discharge**.
* **Conditional Discharge**.
29
What is a Fine?
**Definition:**
* A financial Penalty payable to the Court, due immediately unless the Court permits instalments.
**Relevant Courts:**
* The Crown Court has unfettered discretion, subject to the Statutory Maximum.
* The Magistrates' Court must follow a Standard Scale, and only has unfettered discretion at Level 5, subject to the Statutory Maximum.
**Notes on Applicability:**
* Fines will not usually be imposed alongside detention.
* Fines can be impoesd on any Offence unless Statute prohibits.
* Fines can be imposed alongside any other Sentence except a Hospital Order or the Discharge of one Offence.
* Failure to pay a Fine will result in reappearance in the Magistrates' Court and may lead to Imprisonment in Default.
30
What is Bind Over?
**Definition:**
* An Order requiring a person to keep the peace for a specified period, on pain of losing a Collateralised Sum.
**Relevant Courts:**
* This is within the power of both Courts.
**Notes on Applicability:**
* Bind Over can be imposed without, and often instead of, a Conviction or Guilty Plea.
* Bind Over can be imposed on Defendants or Witnesses.
31
What is a Community Order?
**Definition:**
* An Order requiring the Offender to perform one or more Requirements, aimed at punishment or rehabilitation.
**Relevant Courts:**
* This is within the power of both Courts.
**Note on Applicability:**
* An Order must ensure Requirements are compatible.
* An Order must be informed by a Pre-Sentence Report, unless the Court believes it is unnecessary.
* An Order cannot impose Requirements that conflict with the Offender's religious beliefs or times of work and education.
* An Order cannot initially exceed 3 years in duration, and the Court can only extend it once, up to 6 months, if it is necessary.
* An Order must include at least one Punitive Requirement, unless a Fine is imposed or exceptional circumstances would make it unjust.
32
What is the Threshold for Imposing a Community Order?
* The **Offender** must be **at least aged 18**.
* The **Offence** must be **punishable by imprisonment**.
* The **Offence** must be **serious enough** to **warrant** such a **Community Order**, meaning a **Fine** or **Discharge** is **insufficient**.
33
What are the Consequences of Breaching a Community Order?
**1 — First Breach:**
* The Offender receives a warning for its first Breach without Reasonable Excuse.
**2 — Second Failure in 12 Months:**
* The Court initiates Breach Proceedings to determine whether the Offender had a Reasonable Excuse.
**3 — Court Actions Upon Guilty Finding:**
* **Amendment of Order:** Make the Requirements more onerous.
* **Imposition of a Fine:** Impose a Fine of up to £2,500.
* **Revocation and Resentencing:** Revoke the Order and Resentnce for the Original Offence, considering compliance to date.
**3.1 — Consequences of Persistent Breach:**
* If the Offender willfully and persistently Breached the Order, the Court may impose a Custodial Sentence up to 6 months upon Resentencing.
34
What is Absolute Discharge?
**Definition:**
* The Defendant is Convicted, but no Sentence is passed.
**Relevant Courts:**
* This is within the power of both Courts.
35
What is Conditional Discharge?
**Definition:**
* The Defendant is Convicted, but no Sentence is passed subject to it not Reoffending for up to three years.
* If it does Reoffend, it will be Sentenced for the New Offence and may be Sentenced for the Old Offence.
**Relevant Courts:**
* This is within the power of both Courts.
36
What are the Types of Custodial Sentences?
| These are called **Second Part Sentences**.
* **Minimum** Sentence.
* **Suspended** Sentence.
* **Statutory Life** Sentence.
* **Mandatory Life** Sentence.
* **Determinate Custodial** Sentence.
* **Extended Determinate** Sentence.
37
What are the Relevant Minimum Sentences?
* **Third Class-A Drug Trafficking Offence:** 7 Years.
* **Certain Firearms Offences:** 5 Years.
* **Third Domestic Burglary:** 3 Years.
* **Second Possession of a Weapon:** 6 Months.
* **Threatening with a Weapon:** 6 Months.
38
What are the Relevant Details of the Minimum Sentence for Third Class-A Drug Trafficking Offences?
**Relevant Courts:**
* This only within the power of the Crown Court.
**Specific Criteria:**
* The offender must have three separate Convictions for Class A Drug Trafficking, committed as follows:
* Commission of Offence 1.
* Conviction for Offence 1.
* Commission of Offence 2.
* Conviction for Offence 2.
* Commission of Offence 3.
* Conviction for Offence 3.
**Notes on Applicability:**
* The Court cannot impose less than the Minimum, unless it would be unjust.
* Any Reductions cannot decrease the Sentence by more than 20% of the Minimum, unless it would be unjust.
39
What is a Suspended Sentence?
**Definition:**
* A Prision Sentence that is delayed for a specified period (the "Operational Period").
* During this Period, the Offender must comply with certain conditions, and if it does so, it will not serve the Sentence.
* During this Period, the Offender may be supervised by the Probation Service (the "Supervision Period").
**Relevant Courts:**
* The Crown Court can suspend a Sentence for between 14 days and 2 years.
* The Magistrates' Court can suspend a Sentence for between 14 days and 6 months.
**Notes on Applicability:**
* To potentially Discharge the Sentence, the Operational Period must be at least 6 months.
* The Supervision Period cannot exceed the Operational Period in duration.
* Suspension is often combined with a Community Order.
40
What are the Consequences of Breaching the Conditions of a Suspended Sentence?
**1 — First Breach:**
* The Offender receives a warning for its first Breach without Reasonable Excuse.
**2 — Second Failure in 12 Months:**
* The Court initiates Breach Proceedings to determine whether the Offender had a Reasonable Excuse.
**3 — Court Actions Upon Guilty Finding:**
* The Court must activate the Custodial Term, in whole or in part, considering compliance to date, unless it would be unjust.
41
What is a Statutory Life Sentence?
**Life Sentences for First Listed Offences:**
* **Type of Offence:** The Offender is convicted of an Offence under SA 2020, Sch. 15.
* **Dangerousness:** The Court considers the Offender to be a Danger.
* **Seriousness:** The Offence's seriousness justifies a Life Sentence.
**Life Sentences for Dangerous Offenders:**
* **Type of Offence:** The Offender is convicted of an Offence under SA 2020, Sch. 19.
* **Dangerousness:** The Court considers the Offender to be a Danger.
* **Public Necessity:** The Court considers a Life Sentence necessary to protect the Public.
**Life Sentences for Second Listed Offences:**
* **Recidivism:** For a second time, the Offender is convicted of an Offence under SA 2020, Sch. 15.
* **Propsective Sentence:** The present Offence is serious enough to warrant at least 10 years.
* **Prior Sentence:** The prior Sentence was for at least 10 years and is not Spent under the Rehabilitation of Offenders Act 1974.
* **The Justice Condition:** A Life Sentence would not be unjust.
## Footnote
This is **only** within the power of the **Crown Court**.
42
What is an Extended Determinate Sentence?
**Definition:**
* A Prision Sentence for a fixed period, with an extended Licence Period after Release (the "Extension Period").
* The Offender must be convicted of a Specific Offence and deemed Dangerous.
**Relevant Courts:**
* The Crown Court can impose a Sentence up to the Statutory Maximum.
* The Magistrates' Court can impose a Sentence of:
* Up to 6 months for Summary-Only Offences and singular Either-Way Offences; or
* Up to 12 months for two or more Either-Way Offences.
**Notes on Applicability:**
* The Extension Period must be at least 1 year and cannot exceed:
* 5 years for specific Violent Offences.
* 8 years for specific Sexual or Terrorism Offences.
* The Statutory Maximum Term for the Offence.
* Offenders are eligible to apply for Parole after serving Two-Thirds of the Custodial Term.
43
What is a Mandatory Life Sentence?
**Definition:**
* The only Sentence available for the Offence of Murder.
**Relevant Courts:**
* This is only within the power of the Crown Court.
**Notes on Applicability:**
* On Sentence, the Court may pass a Whole Life Order, under which the Offender will never be released.
* Alternatively, the Court may fix a Minimum Term, after which, the Offender is eligible apply for Parole.
* If released, the Offender will be on Licence for life.
44
What is a Determinate Custodial Sentence?
**Definition:**
* A Prision Sentence for a fixed period.
**Relevant Courts:**
* The Crown Court can impose a Sentence up to the Statutory Maximum.
* The Magistrates' Court can impose a Sentence of:
* Up to 6 months for Summary-Only Offences and singular Either-Way Offences; or
* Up to 12 months for two or more Either-Way Offences.
**Notes on Applicability:**
* Every day spent on Remand is automatically deducted from the Sentence.
* Every two days spent on Bail under Qualifying Electronic Monitoring (min. 9hrs p/d) may be deducted as one day from the Sentence if the Court so acknowledges.
(FLK2) Criminal Litigation
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