Prep 8 Sentencing

Types of Sentence

• Custodial

• Non-Custodial

Purposes of Sentencing under s57 Sentencing Act 2020

1. Punishment of offenders

2. Reduction of crime (including deterrence)

3. Reform and rehabilitation of offenders

4. The protection of the public

5. Making of reperation by offenders to persons affected by their offence

s14 Sentencing Act 2020

Magistrates court can commit an adult for sentence to the Crown Court for either way offences where greater sentencing powers are required

Newton Hearings

Decides the factual basis upon which a court should pass sentence where a defendant pleads guilty on a basis that it will make a material difference to a sentence

Conclusion of a Newton Hearing

The defendant will be sentenced on either the prosecution or defence version of the fact

Consequences of being sentenced on the Prosecution’s version of the facts after a Newton Hearing

• Reduction of sentence for guilty plea may be halved

• Reduction may be further decreased if witnesses are called

Totality

When sentencing for more than one offence, the judge must consider whether the sentences will be concurrent or consecutive

Deciding between consecutive and concurrent sentence

A concurrent sentence is more appropriate when sentencing on offences arising out of the same facts and consecutive where the offences arise out of different facts

Deferring a sentence

A sentence can be extended up to 6 months and a further 6 months only when the Magistrates Court defers and commits to Crown Court for sentencing and they also defer

Indication of Sentence in a Magsitrates Court

• Not obliged to be given upon application

• Can only say whether the sentence would be custodial or non-custodial

• Only binding if the defendant pleads guilty

Indication of Sentence in Crown Court

• Can be applied for at PTPH or any stage of proceedings before the verdict

• Defendant must accept prosecution facts or agree a written basis of plea with parties and court

• Defendant msut give clear instructions to their counsel that they wish to ask for an advance indication

Considerations for the seriousness of an offence udner s63 SA 2020

• The offender’s culpability in committing the offence, and

• Any harm which the offence caused, was intended to cause, or might forseeably have caused

Threshold for a Custodial Sentence under s230 SA 2020

Court must not pass a custodial sentence unless it consider the offence/ combination of offences so serious that neither a fine nor community sentence can be justified

Threshold for a Community Order under s204 SA 2020

Court must not make a community order unless it considers the offence/ combination of offences serious enough to warrant the making of such an order

What is Culpability?

Blamwoethiness with reference to:

• Offender’s role

• Level of intention and/ or premeditation

• Extent and sophisticaiton of planning

Prosecution duties at a Sentencing Hearing

• Remind the court of any previous convictions;

• Ancillary orders

• Relevant sentencing guidelines

• General sentencing issues

• Victim impact statement

Pre-Sentence Reports under s30 SA 2020

Court must obtain a presentence report before passing a custodial or community sentence unless it considers it unnecessary

Code for Approaching Sentencing

1. Determine offence’s seriousness

2. Consider aggravating factors

3. Consider mitigating factors

4. Consider any assistance given to the prosecution

5. Consider the appropriate reduction for any guilty plea

6. Consider totality

7. Consider appropriate ancillary orders

Category of an Offence

1. Greater culpability and greater harm (highest)

2. Greater culpability and lesser harm/ lesser culpability and greater harm

3. Lesser culpability and lesser harm (lowest)

Credit for a Guilty Plea

• At first stage of proceedings - MAX 1/3

• After first stage of proceedings - MAX ¼

• On day of trial - MAX 1/10

Requirements when passing sentence

• Explain the sentence to defendant in nontechnical language

• Identify sentencing guidelines followed and explain if not followed

• Explain why defendnat passes custody threshold if applicable

• Explan credit for guilty plea

• Set out any aggravating and mitigating factors considered

Types of Non-Custodial Sentence

• Bind over

• Absolute discharge

• Conditional discahrge

• Fines

• Community order

Bind Over

Offender is bound over to keep the peace for a sum of money that they forfeit if they fail to do so

Absolute Discharge under s79 SA 2020

Lowest form of sentence and effectively no punishment

Conditional Discharge under s80 SA 2020

A discharge with a condition which if breached can result in resentencing for the new offence and original offence with a maximum time limit of three years

What can a fine not be imposed alongside?

• A hospital order

• A discharge for a single offence

Conditions that must be given for a Community Order under s201 Sch 9 SA 2020

At least one of the following:

• Max length of 3 years

• At least one punitive element unless a fine is imposed or exceptional circumstances

• Avoid connflict with offender’s religious beliefs and/or education and/or work

• Electonircally monitored curfew if appropriate

Community Order Requirements

• Unpaird Work

• Programme

• Prohibited Activity

• Curfew

• Exclusion

• Residence

• Foreign Travel Prohibition

• Mental Health Treatment

• Drug Rehabilitation

• Alcohol Treatment

• Alcohol Abstinence and Monitoring

• Attendance Centre

• Electronic Monitoring

Consequences for breaching a community order

• First instance - Warning

• Second instance - breach proceedings begin

Breach Proceedings for a Community Order

If the offender denies the breach, a trial will be held as to failure without reasonable excuse

Consequences if found guilty of breaching a community order udner Sch 10 SA 2020

• Making the order more onerous

• Fining the offender up to £2500

• Revoking the order and resentencing the offender up to 6 months

• Extension of the order for a further 6 months (beyond the 3 year max if necessary)

Types of Custodial Sentence

• Determinate custodial

• Suspended determinate

• Minimum sentence for certain offence

• Extended determiante

• Mandatory life sentence for murder

• Other statutory life sentences

Magistrate Courts’ powers for a Determinate Custodial Sentence

• 6 months for a summary only offence

• 6 months for a single either way offence

• 12 months for two or more either way offences

Crown Court powers for a Determiante Custodial Sentence

Unlimited powers of imprisonment subject to the statutory maximum

Magistrates Court’s powers for a Suspended Sentence

May suspend between 14 days and 6 months

Crown Court’s powers for a Suspended Sentence

May suspend between 14 days and 2 years

Elements to a Suspended Custodial Sentence

• Custodial Term

• Operational Period

• Supervision Period

Minimum sentences for offences

• 7 years for a third Class A drug trafficking offence

• 3 years for a third domestic burglary

• 5 years for certain firearms offences

• 6 months for a second offence of possessing a weapon

• 6 months for threatening with a weapon

Minimum tariffs for a life sentence for murder

15, 20 and 30 years