Sentencing PDF

Preview

Summary

sentencing terminology...

Description

SENTENCING TERMINOLOGY: NEWTON HEARING: - Newton hearing takes place when D admits guilt and pleads G, but they do not admit to committing the offence in the way the pros claims they did. - When D disputes factual events put forward by the pros which may affect sentencing. - Pros can call evidence and test defence evidence in usual ways. - D can give evidence – if they don’t without good reason judge may draw infs. - Ordinary rules of BOP/SOP apply. Pros must prove all elements beyond reasonable doubt. - R v Marsh 2018 – emphasised how crucial it was that factual basis for sentencing was est prior to the hearing to avoid any injustice for D

TIC: -

a) b) c) d)

‘taken into consideration’ A previous offence court take into account ONLY when considering sentence, not before or it may cloud jury’s view of D unfairly

Court have discretion to consider: Ds behaviour Ds co-operation with police Plea Past convs – similar offs. They wont consider a prev off if it will inc sentence higher than the crime in question is worth. e) Public interest

PRE-SENTENCE REPORT: - Report made by probation service and delivered before a sentence is delivered by the court - Report allows them to gather info on offender. Gives overview of character. - Report should be balanced and not bias swaying in favour or against D (S158 (1) CJA 2003) - Report should inc: a) Nature of crime b) Seriousness of offence c) Impact on V d) Probations officers assessment on riks of harm to public e) Conclusion on what they think is most appropriate re sentencing. E.g. if they state dangerous judge likely to impose harsher sentence than if they’re not a threat. - S159 (2a) CJA 2003: report must be disclosed to D/Ds sol - Case adjourned for 3-4 weeks to allow report to be made. -

VICTIM IMPACT STATEMENT: - Written or oral statement - Allows V to have a voice during the trial and inform court of how crime impacted them - May convince judge to give harsher sentence - If V died – right to speak extended to Vs family. Optional. If they decline, pros will give a speech on the impact of the family - If they decline, police should record fact that they have been asked but declined. Avoids disputes later.

SENTENCING PROCEDURE: PROCEDURE IF D PLEADS GUILTY: -

Rules governing procedure that a mags court should follow upon conviction are in Crim PR Part 24.

-

When D pleads G, need for trial is avoided

-

Sentencing hearing begins with pros outlining the circs of the offence. Based on evidence contained in witness statement and Ds interview, CCTV, victim impact statement. (V impact statement – optional statement allows V to inform court how crime impacted them) -

-

-

Prosecutor provide court with a copy of Ds crim record, draw attention to any prev convs. If the current conv places D in breach of an existing order, pros should provide details of earlier offence. If offence involves injury/damage to prop, pros should hand in apps for compensation. Pros may refer the court to photos of injury/damage.

-

Pros should present facts fully and fairly.

-

Pros ask for any relevant order and pros costs in a specified sum.

-

Defence will then submit a plea in mitigation

-

If defence thinks a pre-sentence report might be reqd, they’ll ask for adjournment for report to be prepared before addressing court on sentencing

Procedure similar in both Mags and Crown.

PROCEDURE IF D IS FOUND GUILTY BY COURT:

-

Court will know the circs of the offence and Ds involvement

-

Defence sol invited to make a plea in mitigation of sentence

-

Hearing may be adjourned for a presentence report if court believes that further info about D is reqd before sentence can be passed. Report prepared by the Probation Service and delivered orally on day of conv following trial or guilty plea

-

If full pre-sentence report needs to be prepared an adjournment needed Where court adjourns sentence for a full report, it can remand the D in custody or on bail. Custody: court can adjourn sentence for no more than 3 weeks. Bail: conditional or unconditional. It can inc a condition that the D co-operates with Probation Service in prep of report. Adjournment on bail can be for no more than 4 weeks. Mags court ask for a fast delivery pre-sentence report when poss to avoid adjournment.

-

-

Pros/CPS Lawyer (same thing) role: - Represents Vs - reading out any victim impact statement - Referring court to the Ds prev history – get longest sentence poss for V. - Detailing requests for compensation and asking for ancillary orders inc pros costs

Benefits of guilty plea: - Reduction in sentence – sliding scale.

SENTEN CING

WHEN IS OFFENDER SENTENCED? - ADJOURNMENT: What - When D is convicted, may be sentenced straight away or there may be adjournment before sentencing. (max 4 weeks in mags court when granted bail/ 3 weeks if remanded in custody) When - Usually done when the court is waiting for a pre-sentence report before passing sentence.

SENTENCING PROCESS - 2 STAGES: 1. Aggravating factors – factors which make it worse/ lengthen sentence. Incs: seriousness of offence, culpability, racially/religiously aggravated, multiple Vs, abuse of power etc. 2. Mitigating factors – factors which may help Ds case/reduce sentence. Incs: mental illness/disability, age, minor role in offence etc.

SERIOUSNESS OF OFFENCE: o helps determine which sentencing threshold has been crossed o indicates whether custodial, community or other sentence most appropriate and the length imposed.

CULPABILITY – factor which determines seriousness of offence. 4 levels of culpability: 1. Intention to cause harm: highest culpability when an offence is planned; worse harm intended = the greater the seriousness. 2. Recklessness as to whether harm is caused: D appreciates that some harm would be caused but commits act anyway. No thought given to the consequences even though extent of risk would be obvious to most people. 3. Knowledge of specific risks entailed by actions but doesn’t intend to cause the harm that results 4. Negligence – lowest culpability

PURPOSE OF SENTENCING: CJA 2003 sets out sentencing objs: 1. Punishment of offenders 2. Reduction of crime – deterrence 3. Reform and rehabilitate 4. Protect public 5. Making of reparation to people affected by offences – forgiveness

CREDIT FOR GUILTY PLEA: o Pleading guilty early on reduced sentence – saving court time and resources. Saves family trauma of trial o Court should consider at what stage of proceedings D pleaded guilty (earlier the better) and what circs D pleaded guilty in. o Discount for guilty plea is on a sliding scale. Offender gets more credit for pleading G at earliest chance: - Plea entered first reasonable opportunity = max 1/3 reduction - Plea entered when trial date set = max 1/4 - Plea entered after trial has begun = max 1/10

EFFECT OF PREVIOUS CONVICTIONS: - Under CFA 2003 S143(2) court must treat each prev conv as an aggravating factor. - Court should consider: a) Nature of offence the conv relates to b) Relevance of prev conv to current offence c) Time elapsed since prev conv -

Offence more serious if committed by someone with relevant prev convs...