CLP Workshop 8 - Sentencing

What is the Sentencing Code?

- brings together existing sentencing procedure law

- courts will use this. along with the guidelines published by the Sentencing Council

What categories do the court's sentencing options fall into?

Custodial and non-custodial

What aims of sentencing must the court 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 (includes victims)

(e) the making of reparation by offenders to persons affected by their offences.

What will the mags court do when their sentencing powers are insufficient?

- send offender to CC for sentencing e.g., if they believe they should be imprisoned for more than 12 months

- only for either way offences, not for summary offences

What is a basis of plea?

- Used when defendant pleads guilty but disputes prosecution's version of events

How does a basis of plea work?

1. D enters guilty plea, but written basis is submitted to prosecution

2. Prosecution indicates if basis is acceptable

3. Court considers if basis is acceptable

4. Court decides if Newton hearing is required

What happens if the prosecution accepts the basis of plea?

- court must decide whether they are happy with the basis of plea

- if so, will sentence on the defence basis

- if not, must hold a Newton hearing

What happens if the court does not accept the basis of plea? (absurdity)

- judge will consider the basis and decide whether it is absurd

- if they consider it absurd, will sentence D based on prosecution version of events

- if not absurd, must decide whether it would make a material difference to the sentence

- if it would not make a material difference, will sentence according to defence version of events

- if so, must hold a Newton hearing

What is a Newton hearing?

a hearing to decide the factual basis upon which a court should pass sentence

Will judge and jury be present at a Newton hearing?

- will have mags/District Judge in mags court and a CC judge in the CC

- the difference with the rest of the trial is that there will be no jury in the CC - judge acts as tribunal of both fact and law

What will happen during a Newton hearing?

- P makes opening speech and calls evidence

- witnesses are cross-examined by defence

- D can give evidence and call witnesses if they wish

What will happen at the end of a Newton hearing?

- Both parties can make closing speeches

- Court decides if prosecution proved its version beyond reasonable doubt

- Sentencing based on whichever version is accepted

What are the consequences of a Newton hearing for the defendant?

- If prosecution proves its case, defendant loses some credit for guilty plea

- Reduction in sentence for guilty plea is normally halved

- Further decrease in reduction is possible if witnesses are called

What is the totality principle in sentencing?

- Applies when sentencing for more than one offence

- Court must consider total sentence to ensure it's just and proportionate

- Not simply adding sentences together

When are concurrent sentences more likely vs when are consecutive sentences more likely?

- Concurrent sentences - usually for offences from same facts

- Consecutive sentences - likely for offences from different facts

How do concurrent sentences work?

- sentences will run alongside each other

- ie 3 years and 3 years for two thefts = 3 years in total

What is sentence deferral?

- Court can defer sentence for up to six months

- Allows defendant to prove they've changed or offence was one-off

- Can lead to lighter sentence

- Deferral period can't be extended except in specific circumstances

How does sentence indication work in magistrates' court?

- Only for either-way offences after court accepts jurisdiction

- Defendant can ask for indication of sentence if they plead guilty

- Court can only indicate custodial or non-custodial sentence

Is the court's indication of sentence binding?

Indication only binding if defendant then pleads guilty

How does a Goodyear indication work in Crown Court?

- D can ask for an indication of the sentence before the PTPH or at any stage before the jury return their verdict.

- to get this indication, D must accept prosecution facts or agree written basis of plea

- Defendant must instruct counsel to request indication

Does the judge in the CC have to give an indication of sentence if requested?

No, this is at their discretion

What are the court's steps in determining a sentence?

1. determine offence seriousness and which category it falls into

2. increase within that category for aggravating factors (statutory and non-statutory)

3. decrease within that category for mitigating factors (related to offence and offender)

4. Consider assistance given to prosecution

5. Apply appropriate reduction for guilty plea

6. Apply totality principle to ensure final sentence is just and proportionate

7. Consider appropriate ancillary orders

What 2 things will the court consider when measuring seriousness of harm? (step 1 of determining sentence)

will consider the seriousness of the offence, based on offender's culpability and any harm that the offence caused/was intended to cause/might foreseeably have caused

What is culpability?

- offender's role, level of intention, and level of planning

- something like having mens rea and having a knife would increase culpability

On what grounds can the court pass a custodial sentence?

The court must not pass a custodial sentence unless the offence was so serious that neither a fine nor a community sentence can be justified.

Does the court have to use the 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.

How is the category of an offence determined in sentencing guidelines?

Category 1: Greater culpability and greater harm

Category 2: Greater culpability and lesser harm, or greater harm and lesser culpability

Category 3: Lesser culpability and lesser harm

each category has a starting point and sentencing range

What is the running order of a sentencing hearing?

- Prosecution open facts, make submissions & applications

- Defence Mitigate

- Judge passes sentence

What are the duties of a prosecutor at the sentencing hearing?

Remind the court of:

- previous convictions

- ancillary orders that the prosecution seeks (e.g. restraining order)

- relevant sentencing guidelines

- general sentencing issues necessary to ensure that a lawful sentence is passed (e.g. the mandatory minimum sentence provisions)

- victim impact statements

What general duty is on both P and D at the sentencing hearing?

to ensure that a lawful sentence is passed.

What are the duties of the defence advocate at the sentencing hearing?

- must not mislead the court

- must put forward a case consistent with their instructions

- can ask for pre-sentence report

What is a pre-sentence report?

- A document written by a probation officer following an interview with D

- provides the court with information about D's background, to decide on the best way to deal with D

When MUST a pre-sentence report be obtained by the court?

- must obtain a pre-sentence report before passing a custodial or community sentence

- unless it considers it unnecessary to do so.

What other reports may need to be obtained?

- medical or psychiatric report

What must court do if considering a sentence pursuant to the Mental Health Act 1983?

must receive evidence from two medical practitioners stating that in their opinion the defendant is suffering from a mental disorder.

What are common aggravating factors?

• Previous convictions

• Offence committed while on bail

• Racial or religious aggravation

• Hostility based on sexual orientation or disability

• Commission under influence of alcohol or drugs

• Planning of offence

• Group or gang involvement

• Professional offending

• High level of profit

• Attempt to conceal evidence

• Failure to respond to previous sentences

• Use of weapon

• Multiple victims

• Serious effect on victim

• Targeting vulnerable victims

• Abuse of trust or power

Can a factor used to indicate higher culpability be used also as an aggravating factor?

No, can only be used once

What are common mitigating factors?

• Greater degree of provocation than normally expected

• Mental illness or disability

• Youth or age affecting responsibility

• Minor role in offence

• Good character or lack of previous convictions

• Personal mitigation (e.g., remorse, cooperation with authorities)

• Isolated incident

• Steps taken to address offending behaviour

How is credit given for a guilty plea?

- Maximum 1/3 reduction for plea at first stage of proceedings

- Maximum 1/4 reduction for plea after first stage

- Sliding scale up to 1/10 reduction for plea on day of trial

(all at the discretion of the judge)

What must a court explain when passing sentence?

- Explain sentence in non-technical language

- Identify sentencing guidelines followed or reasons for not following

- Explain why custody threshold is passed (if applicable)

- Explain credit given for guilty plea and reasoning

- Set out aggravating and mitigating factors considered

What are the types of non-custodial sentences?

- Absolute discharge

- Conditional discharge

- Fines

- Community Order

- Binding over

What is an absolute discharge?

- no punishment

- Lowest form of sentence available to magistrates' court and Crown Court

- Imposed to reflect triviality of offence, circumstances of prosecution, or special factors relating to offender

What is a conditional discharge?

- no punishment - as long as D obeys a condition

- specified period must be no more than three years

- do not confuse with a suspended sentence

What happens if D reoffends following conditional discharge?

- if defendant commits another offence during specified period, they can be re-sentenced for original offence

- re-sentenced, not activated (that is for suspended sentence)

Who can impose conditional discharge?

mags and CC

What fines can mags court and CC impose?

- Crown Court - unlimited (but limited by what the guidelines say for that offence)

- Magistrates' court - on scale from Level 1 (£200) to Level 5 (unlimited) (but limited by what the guidelines say for that offence)

Will court take into account D's means before imposing a fine?

- Court can enquire about defendant's means before imposing

- installments can be allowed with court agreement

When can fines not be imposed?

can be imposed for any offence unless

- it is prohibited by statute

- cannot be imposed alongside hospital order or discharge

What is the penalty for not paying a fine as punishment?

imprisonment as a last resort

What are the requirements for imposing a community order?

- Offender must be over 18

- Offence must be punishable with imprisonment

- Must have punitive element unless fine imposed or exceptional circumstances

- Requirements must not conflict with religious beliefs or work/education

What is the maximum length of a community order?

3 years

Community orders must include at least one requirement, as shown here:

- Unpaid work requirement

- Rehabilitation activity requirement

- Programme requirement

- Prohibited Activity requirement

- Curfew requirement

- Exclusion requirement (eg keeping out of certain place)

- Residence requirement (live at an address)

- Foreign travel prohibition requirement

- Mental health treatment requirement

- Drug/alcohol rehab requirement

- Alcohol abstinence and monitoring requirement

- Electronic monitoring requirement

What is attendance at a centre requirement for community orders?

- for Ds age 18-23

- punish the offender by loss of their free time

- but also provides a disciplined learning environment

- must attend between 12 and 36 hours

What will happen after first breach of community order?

offender is warned

What will happen after second breach of community order?

- Breach proceedings instituted

- Offender brought before court to admit or deny breach

What are the penalties for breaching community order?

If breach admitted or proven, court can:

- Amend order to make it more onerous

- Fine offender up to £2,500

- Revoke order and re-sentence offender, extending order or imposing custodial sentence

What is binding over?

- Court orders defendant to keep the peace for a specified period

- Defendant agrees to forfeit a sum of money if they fail to keep the peace

Who can be subject to a bind over?

- can be, and often is, imposed on someone instead of them entering a guilty plea or being tried for an offence

- can even be imposed upon acquittal

- or imposed on a witness

Should the court aim to keep custodial sentences short?

must be for the shortest possible period to reflect the purpose of the sentence

What is a determinate custodial sentence?

- A prison sentence for a defined period of time

What are the mags court's sentencing powers for determinate custodial sentences?

- 6 months for summary only offence

- 6 months for single either way offence

- 12 months for two or more either way offences

What are the CC's sentencing powers for determinate custodial sentences?

subject to statutory maximums for each offence, but otherwise unlimited

Does time spent on remand count towards custodial sentences?

Yes, will be counted automatically

Does time spent on bail with electronically monitored curfew count towards custodial sentences?

yes, if spending at least 9 hrs under curfew

- will count for half a day in custody

- court must expressly state that this time counts

- days when curfew was breached will not count

What is a suspended sentence of imprisonment?

- For offending that crosses custody threshold but defendant avoids immediate custody

- can impose conditions along with this eg going to rehab/unpaid work while sentence is suspended

- possible to avoid custody entirely

- do not confuse with conditional discharge

What will happen if D reoffends during the operational period when their sentence is suspended?

- some or all of their suspended sentence can be activated (not re-sentenced)

- unless it is unjust to do so

- during the whole operational period, not just the supervision period

How long can mags court suspend sentence?

between 14 days and 12 months

How long can CC suspend sentence?

between 14 days and 2 years

What are the 3 elements of a suspended sentence?

- the operational period = length of time the sentence is suspended for (from 6 months to 2 years)

- The length of the custodial term

- the supervision period = how long D must be supervised by the Probation Service for - optional! (from 6 months to 2 years)

What is the minimum sentence for a third Class A drug trafficking offence (unless there are special circumstances)?

7 years' imprisonment unless it would be unjust to do so

- must be 3 separate convictions in a row, will not work if being convicted of 3 counts all at the same time

- even if D enters guilty plea, reduction must be such that final sentence is still at least 80% of the minimum term (unless it would be unjust to do so)

What is the minimum sentence for a third domestic burglary (unless there are special circumstances)?

3 years

- an either way offence, but must be sent to CC at least for sentencing as this sentence is too long for mags

- must all be domestic burglaries

- must be three separate convictions, not a single conviction for 3 counts eg

What is the minimum sentence for a second count of possessing a weapon (unless there are special circumstances)?

6 months

What is the minimum sentence for threatening with a weapon (unless there are special circumstances)?

6 months

What is the licence period?

period after a prisoner's release where they must follow a set of rules and conditions for the remaining part of their sentence

What are extended determinate sentences?

- Imposed for specified violent, sexual, or terrorism offences where offender is deemed dangerous

- extends licence period, not custody period

How long can the extension period for extended determinate sentences be?

- must be at least 1 year

- Maximum extension: 5 years for violent offences, 8 years for sexual or terrorism offences

- term in total cannot exceed maximum permitted for the offence

When can someone serving an EDS apply for parole?

eligible to apply to the parole board for release at the 2/3 point of their custodial term - can be released then, and must be released at end of custodial term

Which offence carries a mandatory life sentence?

murder

- court has no discretion to pass any other sentence than this

- court will fix a minimum term for the point at which D will be able to apply for parole (15, 25, 30 years), but cannot apply before this

- or will impose a whole life order with no prospect of parole

Can mitigating factors reduce the length of a life sentence?

Mitigations cannot reduce life sentence below minimum term for murder

What happens if a D convicted of murder is released early?

will still be on licence for life

What are statutory life sentences?

- possible to sentence very dangerous offenders to life sentences, but not mandatory as for murder

When will an offence cross the custodial threshold?

court must not pass a custodial sentence unless it is of the opinion that the offence/combination of offences was so serious that neither a fine nor community sentence can be justified for the offence

When will an offence cross the threshold for a community order?

court must not pass a community order unless it is of the opinion that the offence/combination of offences was serious enough to warrant the making of such an order

What is the minimum term for a sentence of less than 4 years?

1/2 of the sentence (e.g., three years, minimum term is 1.5 years)

What is the minimum term for a sentence of 4 years or more?

2/3 of the sentence

What is double counting of aggravating/mitigating factors?

- Can use aggravating factors to move up by one category (and must use that starting point)

- or can stay in the same category and use the highest point of that category range

- but cannot both move up a category and go to the top of that range (this would be double counting of the same factor)

- works the same in reverse for mitigating factors

When is the first opportunity for client to plead guilty in order to gain maximum credit?

- First hearing at mags court would be best option

- Will need to enter plea again in CC, so should also enter this plea at PTPH

What is the maximum custodial sentence in the mags court? (above this, must be sent to CC)

12 months