Sentencing

Criminal Practice - Chapter 11

What are the five purposes of sentencing?

i) the punishment of offenders

ii) the reduction of crime (including its reduction by deterrence)

iii) the reform and rehabilitation of offenders

iv) the protection of the public

v) the making of reparation by offenders to persons affected by their offence

**not relevant if sentence fixed by law or subject to a statutory minimum or D classed as a dangerous offender

What is the principle of seriousness when considering sentencing?

a) the offender’s culpability in committing the offence

b) any harm which the offence:

i) caused

ii) was intended to cause

iii) might foreseeably have caused

How is culpability decided?

Four levels:

i) has the intention to cause harm, with the highest culpability being when an offence is planned

ii) is reckless as to whether harm is caused - covers situations when the defendant appreciates that some harm would be caused but goes ahead, giving no thought to the consequences

iii) has knowledge of the specific risks entailed by their actions, even though the offender does not intend to cause the harm that results

iv) is guilty of negligence

What constitutes ‘harm’?

physical violence, sexual violation, financial loss, damage to health and psychological distress

*the same harm can be sentenced more harshly if the type of offence is prevalent in the area and the court has before it evidence that these offences are causing harm to the community at large.

What are statutory aggravating factors?

i) previous convictions - consider nature and time passed

ii) offence committed whilst on bail

iii) racial or religious aggravation/motive

iv) hostility based on sexual orientation or disability

Other factors include:

i) offences that are planned or premeditated

ii) offenders operating in groups or gangs

iii) the deliberate targeting of vulnerable groups (such as the elderly or disabled victims)

iv) offences committed whilst under the influence of drink or drugs

v) the use of a weapon;

What are some mitigating factors?

i) acting on impulse - one blow

ii) greater degree of provocation

iii) mental illness/physical disorder

iv) really old or young

v) only played a minor role

vi) motivated by genuine fear

vii) made attempts to make reparation to their victim - remorse

viii) isolated incident

*courts can take into account the impact of the current prison population levels when making that decision as an exceptional factor to justify suspending a custodial sentence

What discounts are available for an early guilty plea? (saves time/expense of trial - not dependent on remorse or strength of case)

i) The full one-third discount on sentence will only be available where a guilty plea is indicated at the ‘first stage of proceedings’ - i.e. first hearing in MC/CC

ii) Where a guilty plea is usually indicated after this first stage of the proceedings, the ‘maximum level of the reduction is one-quarter’ - e.g. at PTPH at MC

ii) One-tenth reduction if on first day of trial - may be reduced to zero if entered during course of trial.

*indication to plead guilty IS NOT ENOUGH

What is the totality principle?

When an offender is being sentenced, the court will take into account both the offence they are being sentenced for and any associated offences (i.e. an offence for which the defendant has been convicted in the same proceedings)*

*or being sentenced at same time/ D has asked court to take it into account.

Is the court required to give reasons for the sentence?

YES - includes:

i) explaining to the offender the effect of the sentence that has been passed

ii) the effect of non-compliance with the sentence

iii) to identify the definitive sentencing guidelines that have been followed at reaching the sentence passed

When will consecutive sentences not be imposed?

Where matters of fact arise out of the same incident - likely to be a concurrent sentence

A concurrent sentence may also be imposed even if they do not arise out of the same incident if the sentencing court applies the totality principle

The overriding principle of totality is that the overall sentence should:

i) reflect all of the offending behaviour with reference to overall harm and culpability (with aggravating/mitigating factors)

ii) be just and proportionate.

When will concurrent sentences be appropriate?

i) offences arise out of the same incident or facts

ii) there is a series of offences of the same or similar kind, especially when committed against the same person.

When will consecutive sentences be appropriate?

i) offences arise out of unrelated facts or incidents

ii) offences committed in the same incident are distinct, involving an aggravating element that requires separate recognition

iii) offences are of the same or similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences

*can combine concurrent and consecutive sentences

What can a solicitor ask for if their client is pleading guilty and their case is likely to be sentenced in the MC?

Can ask the Probation Service to prepare a pre-sentence report before the first hearing.

How can drink and drugs be used in mitigation?

i) If there is evidence that the defendant is a drug addict or an alcoholic, this may be used to suggest to the court that a sentence designed to help the defendant overcome this addiction

ii) a defendant convicted of theft may have several previous convictions for thefts which were committed in order to fund a drug habit - used to distinguish previous convictions

What is the significance of having no previous convictions?

Can be used the mitigation - suggest here is a specific ‘one-off’ explanation for her committing a criminal offence

In R v Seed; R v Stark [2007] - CoA held that the absence of previous convictions was important mitigation that might make a custodial sentence inappropriate, even if the custody threshold had been crossed

What sentence should the solicitor suggest?

The plea in mitigation should conclude with the defendant’s advocate suggesting to the court the sentence which they think the court should impose

• This should be lower than the likely sentence and should reflect all the mitigating factors which the defendant’s solicitor has placed before the court.

If the sentence which the defendant’s solicitor suggests as being appropriate is the same sentence as is recommended in the pre-sentence report, the solicitor should emphasise this point

When the court has a discretion whether or not to pass a custodial sentence, what threshold test should it apply? (i.e. custody threshold test)

The court must not pass a custodial sentence unless it is of the opinion that the offence, or 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.

*don’t have to impose a custodial sentence - consider mitigation

**the custody threshold test does NOT apply where an offender fails to express a willingness to take part in a community sentence.

How does the court decide the length of a custodial sentence?

To determine the length of the sentence, the court must apply s 231(2) of the Sentencing Act 2020:

i) must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or

ii) the combination of the offence and one or more other offences associated with it.

What is the max sentence in the MC and the CC?

The maximum custodial sentence that a magistrates’ court may impose on a defendant is 12 months’ imprisonment

Judges in the Crown Court have the power to sentence a defendant to a term of imprisonment up to the maximum permitted for that offence

*where an adult offender is aged between 19–21 years, any custodial sentence they receive will not be served in prison, but in a young offender institution (YOI)

How does early release work?

Adult defendants who receive a custodial sentence or sentences that amount to five years or less (for relevant offences committed after 10 September 2024) will be automatically released after serving 40% of their sentence

Defendants who receive determinate sentences (i.e. incarceration) of over two years will also usually be released automatically after serving half their sentence and the remaining half is served on licence in the community, unless they are classified as an ‘offender of particular concern’ - they must apply for parole

will be i) on licence and ii) under the supervision of the Probation Service for a 12 month period.

When will a suspended sentence be imposed?

A custodial sentence of at least 14 days but no more than two years (or 12 months in the case of the magistrates’ court) may be suspended for at least six months and not more than two years = “operational period|

The court will impose a suspended sentence only if it initially decides that the custody threshold (see above) has been met, but then considers that particular circumstances exist which justify the suspension of the sentence (e.g. need to care for an ill child)

What requirements may a court impose?

The requirements are the same type of requirements which the court may require a defendant to comply with when imposing a generic community order:

i) unpaid work

ii) activity requirement

iii) program requirement - e.g. anger management, rehab, sex offending

iv) prohibited activity requirement

v) curfew requirement - will be electronically monitored (i.e. tagged)

vi) supervision requirement

vii) supervision requirement

What happens if you breach a suspended sentence?

if: i) breaks requirement ii) commits a further offence

If the suspended sentence was imposed by the magistrates’ court, they may be dealt with for the breach either by the magistrates’ court or by the Crown Court.

The court must do one of:

a) order the custodial sentence originally suspended to take effect unaltered

b) order the custodial sentence to take effect, but for a shorter period of time, and/or substitute a lesser custodial period

c) add more onerous community requirements

d) extend the operational period, or by extending the supervision period

*must do a) or b) unless it would be unjust (e.g. near end of supervision period or a relatively minor offence

** if the court does make an order under (a) or (b), the term of imprisonment for the original offence will be consecutive to the sentence imposed for any new offence - can also impose a fine up to 2,500

What is the threshold for imposing a generic community order?

The court must not make a community order 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 serious enough to warrant the making of such an order.

*must decide which severity band the offence is in to decide which requirements to impose.

What happens if you breach a community sentence?

i) the defendant will receive a warning from the officer from the Probation Service who is supervising the defendant’s compliance with his generic community order.

ii) if happens again in 12 months - ordered before the court

iii) if court is satisfied the D has failed to comply without a reasonable excuse it must:

a) amend the order so as to impose requirements on the defendant which are more onerous - e.g. increase amount of unpaid work

b) revoke the order completely and re-sentence the defendant for the offence

c) where the defendant has wilfully and persistently failed to comply with the order, the court may revoke the order and impose a custodial sentence - can be done even if the original offence was not punishable by way of a custodial sentence.

What happens if further offences are committed during a generic community order?

The magistrates may either allow the original generic community order to continue OR

If it is in the interests of justice having regard to the circumstances that have arisen since the original order was made, they may:

a) revoke the order (this will be done if the magistrates are imposing a custodial sentence for the ‘new’ offence, since an offender in prison cannot comply with a community sentence)

b) revoke the order and re-sentence the defendant for the original offence as if they have just been convicted of it - the court must have regard to the extent to which the defendant has complied with the original order

What is a Newton hearing?

Sometimes a defendant may plead guilty to the charge they face but dispute the specific factual version of events put forward by the CPS

If the dispute concerning the correct version of events may have a bearing on the type of sentence the court imposes, the court must either:

i) accept the defendant’s version of events, or

ii) allow both the CPS and the defendant to call evidence so that the court can determine the true factual circumstances of the offence on which the defendant’s sentence will be based = NEWTON HEARING

*can be avoided if P + D agree a version of events upon which the defendant will be sentenced = BASIS OF PLEA

What is a BASIS OF PLEA?

A document that sets out the defendant’s factual version of events to an offence which the defendant accepts they are guilty of

The purpose of the basis of plea from the defence perspective is to remove various aggravating features of the case which would lead to a higher sentence and which the defendant does not accept are an accurate reflection of what actually happened.

If the basis of plea is accepted by the prosecution and the sentencing judge, the sentence will proceed on the version put forward by the defence

If rejected - NEWTON HEARING - to consider submissions of the P*

*can straight up reject D’s version w/o NH if deemed ABSURD - final decision up to sentencing judge (can reject even if accepted by P)