23 Non-custodial sentences PDF

Preview

Summary

Combination of lecture notes and personal notes. Contains all the information needed for the BPTC Criminal paper 2020/21....

Description

23. Non-custodial sentences 1. absolute and conditional discharges 2. fines and the consequences of default 3. community sentences and the consequences of breach of a community sentence Community threshold Title Discharge

Description Conditions Having regard to the circumstances including  Nature of the offence  Character of the offender And it is not advisable to punish, the court may order (1) Absolute discharge (2) Condition discharge Exceptions  Sentences which are fixed by law Combinations Combination with other sentences  Disqualification  Confiscation order  Compensation order  Deprivation order  Unlawful profit order Cannot combine discharge with other punitive sentences, unless more than one offence and discharge is just for one e.g.  Custodial sentence  Community order  Fine Absolute discharge Consider  The triviality of the offence  Circumstances in coming to be prosecuted  Special factors of the offender Note: No surcharge is payable if absolute discharge. Conditional discharge The offender should commit no further office during the period of condition discharge (must not exceed three (3) years)  NO OTHER CONDITION may be inserted. When CANNOT use

Title

Fines

Description  Sentences fixed by law  Breach of Sexual Harm Prevention Order (SHPO)  A person received two or more youth cautions, UNLESS exceptional circumstances. Breach of condition order  Court who made the discharge may sentence for original offence. o Crown can sentence conditional discharge issued by magistrate but only with magistrate limits o Magistrate may sentence CD issued by another magistrate but with permission from that other magistrate. o Magistrate must commit to Crown if CD issued by Crown. Conditions (a) Fine not prohibited by law  Unlimited in both magistrate and Crown unless prohibited Combination Can combine with all other sentences except  Hospital order  Discharge for one offence  (Undesirable but possible) custodial sentence + fine Procedure 1. Before sentence, court may make a financial circumstances order  Sentenced person must give to the court a statement of his o Assets o Other financial circumstances  Failure to comply is liable to a fine not exceeding £1000 (level 3)  False statement liable to a fine not exceeding £2500 (level 4) 2. Fine must be proportional to the gravity of the offence  E.g stealing bottle of liquor with no pre-con not fine but conditional discharge  E.g. Wound with intent to GBH should custodial sentence and not £300 fine  Maximum sentence only for the MOST serious instances of that offence 3. It is proper for the offender to endure hardship to pay the fine but cannot exceed his means. 4. Where it exceeds his means  Court CANNOT impose custodial sentence instead  Court should decrease the level of fine or raise the level (if the person is welloff) Method of fine  Due immediately  Deadline to pay  Instalments

Title

Description o Usually over 1 year, but can be 2 years, rarely 3 depending, so long as not undue burden depending on nature of offence and offender o Longer for companies.

Communit y sentences

Conditions (a) Community sentence can be  Community order  Youth rehabilitation order (b) Must be serious enough to warrant a community sentence Requirements in community sentence MUST be  Suitable for the offender  Requirement(s) of the community sentence and restrictions to liberty must be proportionate to seriousness of the offence(s)  Not more than 3 years  If two or more requirements, the last day for each must be the same date Types of requirements  Unpaid work o MUST be 40 – 300 hours (min and max) o MUST determine that (a) offender is suitable for unpaid work (b) there are local arrangements in place (after consulting probation officer*) o Two community orders may run concurrently/consecutively, usually less than 12 months o Failure to complete within 12 months can be extended or considered breach.  Rehabilitation activity o Attend appointments or activities o Requirements must ONLY be used to secure attendance o Court MUST specify (a) proportionate number of days the offender must complete; (b) The specific accredited programme or other activity o Should obtain the agreement of any person whose co-operation is necessary  Mental health treatment o Requirement that the offender must submit to mental health treatment by a registered medical practitioner/psychologist (may change the location by informing the responsible officer and with offenders consent) o Treatment may be (a) In a care home

Title

Description











(b) In a hospital o Court must (a) Ensure the mental condition is one that can be treated (b) Is not one that needs to make a hospital/guardianship order (c) Ensure that arrangements can be made in the order (d) Ensure that the offender expressed willingness to comply Drug rehabilitation o Drug rehabilitation which includes drug treatment and testing o May be resident or non-resident o No maximum time (Secretary of State may amend the time) o The court must ensure (a) That offender has a propensity to misuse drugs (b) That the misuse can be treated (c) That arrangements can be made (d) It has been recommended by a probation officer (e) The offender has expressed willingness to comply Prohibited activity o MUST first consult probation officer o May require refraining from certain activities (e.g. no contact of person, no football matches) for days or specified days. o Must be proportionate to the risk of further offending Curfew o Offender must be at a place for certain period of time (Must be 2 – 16 hours) o Maximum 12 months o MUST consider (a) Effect of such order on the people staying at that place (b) Other information about the place (c) Culpability and needs o MUST also impose electronic monitoring, unless court considers inappropriate to do so Exclusion requirement o Excluding offender from a specified place or person (that person given the order) during a specified period (may include different times) (Secretary of State may amend the time) o Maximum two (2) years o MUST also impose electronic monitoring, unless court considers inappropriate to do so o Must be proportionate to the risk of further offending Residence requirement o Person should reside in a place at certain times/period of time. o Court must consider (a) Effect of such order on the people staying at that place

Title

Description (b) Other information about the place o No hotel or hostel unless probation officer recommends  Electronic monitoring o Can be used with other requirements o For exclusion or curfew MUST use, unless inappropriate to do so o Court (a) Must set periods + duration of e-monitoring (b) Must secure the consent of a person other than the accused if necessary (c) Must ensure that arrangements can be made  Attendance centre requirement o May require offender to attend an attendance centre for a number of hours (12 – 36 hours, not more than 3 hours a day, not more than once a day) o MUST be under 24 years or under. o Court must ensure (a) There is a attendance centre available (b) Attendance centre is not unreasonably far (c) Responsible offer will inform date and time of the first attendance and subsequent hours fixed by the centre.  Alcohol treatment o Requirement that the offender submit to alcohol treatment by a person qualified o May be resident or non-resident o No minimum period o Court must (a) Ensure there is a dependency on alcohol (b) Ensure the dependency can be treated (c) Ensure that arrangements can be made (d) Ensure that the offender expressed willingness to comply Procedure 1. Before sentence, court MAY obtain pre-sentence report to determine if community sentence suitable and its restrictions 2. Breach (a) Responsible officer must give a warning describing the failure, stating it is unacceptable and if fail again within 12 months, will be brought back to the court. (b) Fail again, matter will be referred to enforcement officer and he has a duty to consider the matter, and may seek more information (appealing conviction is NOT a good reason) (c) Heard by magistrate/Crown (depending on who issued)  Prosecution must prove beyond reasonable doubt that order was

Title

Description breached without reasonable excuse.  Court should consider nature and extent of the breach and MUST deduct from the community order the time served in detention.  Court may order o Amendment of terms (more onerous) o Fine not exceeding £2500 o As if he had been convicted of the offence o In magistrate, if >18, not punishable by imprisonment and persistently fail to comply: Imprisonment for 6 months (18-21 in a young offenders institution; jail for > 21).  CANNOT take no action. 3. Revocation (a) On application by the offender or probation officer  In the interest of justice (including good progress)  Change in circumstance (b) If CONVITED of new offence (not charged)  Heard by magistrate/Crown  May be revoked and hear the new offence  If Crown, magistrate should remand/bail to appear in Crown Court  Consider the extent of compliance 4. Amendment (a) On application by the offender or probation officer  Change in address  Cancellation or replacement of requirements  Change in treatment requirements  Extending the order (may be total beyond three years, but no more than 6 months from the original end date)  May extend the 12 months of unpaid work...