Sentencing principles

Página 1

PURPOSES OF SENTENCING

Court must have regard to the following while dealing with D: (s142(1) CJA 2003)

Punishment of offenders

Reduction of crime

Reform and rehabilitation of Ds

Protection of the public

Making of reparation (compensation) by Ds to persons affected by their offences

^ does not apply in the following categories:

(1) in relation to D < 18 yo at the time of CONVICTION

relevant provisions for youth are at s 37 CDA 1998

to prevent reoffending by youth

to have regard to the welfare of youth

(2) where the offence is fixed by law

eg. murder

Sentence includes

any court order

ancillary orders

custodial sentence

community order

financial penalties (fines)

SENTENCING GUIDELINES

Court must

(a) in sentencing D, follow any sentencing guidelines relevant to D's case, and

(b) in exercising any oyher function in relation to sentencing, follow any relevant sentencing guidelines

unless the court is satisfied that it would be contrary to the interests of justice to do so

SERIOUSNESS

Seriousness is determined by culpability and harm caused/risked being caused by the offence

Culpability of D

Four levels of culpability

intention to cause harm - offence is planned

reckless as to whether harm is caused - D appreciates at least some risk of harm would be caused but proceedings giving no taught to the consequences

knowledge of the specific risk entailed by his actions - even though D does not intend to cause the harm that results

negligence

level of culpability is determined by factors such as

motivation

whether the offence was planned, or spontaneous

whether D was in a position of trust

Greater culpability

D deliberately caused more harm

D targets vulnerable victim

Harm of D

Encompasses both

where harm is caused - court will take into consideration the impact of the crime on victim, depending on their personal characteristics and circumstances of victim

where nobody suffers harm but a risk of harm is present - court will assess the relative dangerousness of D's conduct and the likelihood and gravity of harm that could have resulted

SENTENCING THRESHOLD

Custody Threshold

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

things to note while applying threshold test

prison is reserved for the most serious offences

passing the custody threshold does not mean that a custodial sentence should be deemed inevitable, and custody can still be avoided in light of personal mitigation, or where there is suitable intervention in the community which provides sufficient mitigation

Community Threshold

court must not pass a community sentence unless it is of the opinion that the offence was serious enough to warrant such a sentence

*** community threshold can be crossed even though the seriousness criterion is not met

in relation to D aged 16 or over, if sentences had been passed consisting only of a fine on 3 or more previous occasions, a community sentence may be imposed, if it is in the interests of justice, despite the fact that the seriousness of the current offence might not warrant such a sentence

court should consider all the disposals available (within/below the threshold) before sentencing

even where community threshold has been passed, a financial penalty or discharge may still be an appropriate penalty

Prevalence (enhanced sentences due to exceptional local circumstances)

seriousness of an individual case should be judged on its own dimensions of harm and culpability, rather than as part of a collective social harm.

It is legitimate for the overall approach to sentencing levels for particular offences to be guided by their cumulative effect.

However, it would be wrong to further penalise Ds by increasing sentence length for committing an individual offence of that type

however, there may be exceptional circumstances that may lead the court to decide that local prevalence should influence sentencing levels

the pivotal issue in such cases will be the harm being caused to the community, where there is a compelling need to treat the offence more seriously than elsewhere

the key factor in determining whether sentencing levels should be enhanced will be the level of harm being caused in the locality

enhanced sentences should be exceptional and in response to exceptional circumstances, and that it was just and proportionate to increase the sentence for such factors

the judge would only be entitled to treat prevalence as an aggravating factor if the judge was satisfied that the level of harm caused in the particular locality was significantly higher than that caused elsewhere.

example where court rejects increasing sentence - in Johncock [2016] EWCA Crim 2218 evidence was received from a senior police officer as to the scale of the local drug supply problem, but in each case the Court of Appeal was unimpressed, saying that these reports ‘showed an all-too-familiar picture of the effects of drug dealing, but not a situation which was so different to elsewhere in the country’.

Página 2

REDUCTION IN SENTENCE FOR GUILTY PLEA

in determining what sentence to pass on D who has pleaded guilty, a court must take into account

(a) stage which D pleaded guilty

(b) circumstances in which the indication of intention to plead guilty was given

note: where the court as a result of taking into account ^ imposes a punishment less severe than it otherwise would have imposed, it must state that fact i.e. make it clear that what credit has been given to guilty plea and what the starting point is before reduction

If D is convicted of the following offences and is >18 yo when CONVICTED, the court can impose a sentence not less than 80% of the specified sentence

THIRD class A drug trafficking offence

custodial sentence for a term of at least seven years

THIRD domestic burglary

custodial sentence for a term of at least three years

Prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse

a sentence of imprisonment for a term of at least 6 months;

Offence of threatening with offensive weapon in public

a sentence of imprisonment for a term of at least 6 months;

Offence of having article with blade or point in public place

a sentence of imprisonment for a term of at least 6 months;

Offence of having article with blade or point (or offensive weapon) on school premises

a sentence of imprisonment for a term of at least 6 months;

Offence of threatening with article with blade or point or offensive weapon

a sentence of imprisonment for a term of at least 6 months;

If D is convicted of the following offences and is aged 16 or 17 yo when CONVICTED, the court can impose any sentence it considers appropriate

Prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse

a detention and training order of at least 4 months

Offence of threatening with offensive weapon in public

a detention and training order of at least 4 months

Offence of having article with blade or point in public place

a detention and training order of at least 4 months

Offence of having article with blade or point (or offensive weapon) on school premises

a detention and training order of at least 4 months

Offence of threatening with article with blade or point or offensive weapon

a detention and training order of at least 4 months

Reduction of plea is a separate matter from remorse and other aspects of mitigation, and is separate from any reduction which may be appropriate to reflect assistance to authorities

*** benefits of a guilty plea apply regardless of the strength of the evidence against D, and so the strength of the evidence SHOULD NOT be taken into account when determining the level of reduction

AGGRAVATING FACTORS

Factors which court must treat as an aggravating factor

1. Previous Convictions

court must treat previous conviction as an aggravating factor, having regard to

(a) nature of the previous offence and its relevance to the current offence, and

(b) the time that has elapsed since the conviction

conviction accrued after the current offence is not previous conviction and could not be taken to aggravate the seriousness

court can treat pervious conviction by a court outside the UK as an aggravating factor if the court considers it appropriate to do so

2. Offending on bail (Commit offence while on bail)

3. Racial/Religious aggravation

4. Aggravation related to disability, sexual orientation or transgender identity

*** Lies told by offender, whether at interview or during trial, are NOT aggravating factor

MITIGATING FACTORS

Personal mitigation

eg. good character, clean record, remorse, youth/immaturity, old age, serious illness, lapse of time since the offence where this is not D's fault, significant pressure on him to commit the offence, determination to address addiction or offending behaviour, meritorious conduct unrelated to the offence

weight to be given is a matter within the discretion of the court

serious nature of the offence = little weight can be given to otherwise significant personal mitigation

even if a offence is so serious that a community sentence could not be justified for the offence, the court may, after taking matters of personal mitigation into account, pass a community sentence

Factors which indicate that it is appropriate to suspend a custodial sentence

realistic prospect of rehabilitation

strong personal mitigation

immediate custody will result in significant harmful impact upon others

TOTALITY PRINCIPLE

Duty on a court to follow sentencing guidelines is ‘subject to any rule of law as to the totality of sentences’

"... all courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence... it is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole."

The CJA 2003, s. 166(3), states that nothing prevents a court:

(a) from mitigating any penalty included in an offender’s sentence by taking into account any other penalty included in that sentence, and

(b) in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences.

Sliding scale of reduction: Maximum of

ONE-THIRD

where guilty plea indicated at first stage of proceedings

normally the first hearing where indication of plea is sought

*** NOTE: If an either-way case comes to CROWN COURT for PTPH

If D has pleaded guilty in the Magistrates Court - ONE-THIRD

If only at this stage D pleaded guilty - ONE-FOURTH

ONE-QUARTER

where guilty plea indicated after the first stage of proceedings

when trial date has been set

* no sliding scale between reductions of 1/3 and 1/4

ONE-TENTH

where guilty plea indicated on the first day of trial

ZERO

during course of trial

​​​​​​

EXCEPTIONS TO THE GENERAL SCHEME

FIRST EXCEPTION: Where the court is satisfied that there were particular circumstances which significantly reduced D's ability to understand what was alleged or otherwise made it unreasonable to expect D to indicate a guilty plea sooner than was done

ONE-THIRD reduction should still be made

cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether D is in fact and law guilty of the offence charged (where D genuinely cannot know whether he is guilty of the offence) --> fall within this exception

eg. in Markham [2017] 2 Cr App R (S) 30 (249), where the defendants (both juveniles) admitted in interview that they had intended to kill the victim, but in each case it was necessary to order psychiatric reports to determine whether a partial defence of diminished responsibility might be available.

cases in which D merely delays guilty plea in order to assess the strength of the prosecution evidence & the prospects of conviction/acquittal --> DOES NOT fall within this exception

SECOND EXCEPTION: Where there was a Newton hearing and D's version of events is rejected

reduction which would have been available when the plea was indicated should normally be HALVED

Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction

THIRD EXCEPTION: Where D is convicted of a lesser/different offence from that originally charged, and has earlier made an indication of guilty plea to this lesser/different offence

reduction at which the indication was made

FOURTH EXCEPTION: Minimum sentence under s 51A Firearms Act 1968

s 51A did not permit any reduction below that minimum to reflect a guilty plea

FIFTH EXCEPTION: Prescribed minimum custodial sentences

reduction must not produce a final sentence less than 80% of the required minimum sentence

Página 3

PRE-SENTENCE REPORTS (PSR)

The court has discretion to dispense with the requirement that the court should obtain a PSR before making a decision to impose a custodial or community sentence, whenever it appears to the court to be 'unnecessary' to obtain one

No sentence shall be invalidated by court's failure to comply with these requirements

However, in respect of D < 18 yo, the court must order a PSR, or at least have sight of the most recent previous PSR

Appeal

If appeal is brought against a sentence passed without considering a PSR, the appellate must obtain and consider a pre-sentence report, unless

(a) the court is of the opinion that the lower court was justified in not calling for the report, or

(b) the lower court was not so justified but, in the circumstances of the case at the time when it is before the appellate court, it is unnecessary to obtain a PSR

However, in respect of D < 18 yo, the appellate court must order a PSR, or at least have sight of the most recent previous PSR

VICTIM PERSONAL STATEMENTS (VPS)

relating to the impact which the offence had on the victim, or on victim's surviving close family if V has died

VPS ensures that the court will consider the evidence of the victim about the personal impact of the offence while assessing the seriousness of the offence

Victims may make a statement, but are under no obligation to do so

Importantly, this is not an opportunity for V to suggest/discuss the type or level of sentence to be imposed

court must pass what it judges to be the appropriate sentence, therefore V's opinions as to what the sentence should be are NOT relevant

MENTALLY DISORDERED OFFENDERS

"mentally disordered" = suffering from a mental disorder within the meaning of Mental Health Act 1983

where D is/appears to be mentally disordered, the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law

medical report is distinct from PSR - it does not displace the need to order a PSR

this is subject to the exception where if in the circumstances of the case, the court is of the opinion that it is unnecessary to do so, the court need not order such a report

Página 4

PLEA BARGAINING

Judicial Indications of Sentence

guilty plea must be entered voluntarily

if D is deprived of a genuine choice as to plea and in consequence purports to plead guilty, the plea is a nullity and conviction will be quashed on appeal

The Goodyear Approach

the correct approach as to judicial indications of sentence is set out in Goodyear

D may apply for an indication of the maximum sentence that would be passed if a guilty plea were entered

the court should never be invited to indicate levels of sentence which depend on possible different pleas

Indication may take the form of:

Indication that the sentence/type of sentence would be the same irrespective of whether the case proceeds as guilty plea, or guilty verdict post trial

"Whether you change your plea to guilty now, or are found guilty after a trial, I will sentence you to a custodial sentence"

Indication as to sentence following a guilty plea (not following a guilty verdict post trial)

where the sentence is likely to vary depending on whether D enters a guilty plea now, or is found guilty after trial, the court should only proceed to give an indication of sentence upon a guilty plea

this is because an indication as to sentence following trial may put undue pressure on D to plead guilty

Process of seeking an indication should be started by Defence

D should request for an indication, rather than judge initiating the process - judge should not give an indication unless one has been sought by D

in the case of an unrepresented D, he would be entitled to seek indicate of his own initiative, but it would be wrong for court & prosecution to take initiative in this regard

Prosecution are obliged to react to, rather than initiate the process

Nonetheless, the court has the power to reminds D's advocate that such a request can be made

if D seeks an indication, D's advocate should obtain a written authority signed by D, that he wishes to seek an indication

There must be an agreed, written basis of plea/factual basis

indication should not be sought while there is any uncertainty between P and D about an acceptable plea to the indictment, or the factual basis relating to any plea

Before an indication is sought, any agreed basis should be reduced into writing

if there is no final agreement but D nevertheless proceed to seek an indication, judge should refuse to given an indication

if the court appears minded to give an indication, P counsel should remind the court that indication should normally not be given until the basis of plea has been agreed, or the judge has concluded that he can properly deal with the case w/o the need for Newton hearing

Court may either (a) REFUSE or (b) DEFER to give an indication

court may do so with or without giving reasons

if court defer an indication, the probability is that it would explain his reasons for deferral and indicate the circumstances in which and when he would be prepared to respond

if court refuses, it remains open to D to make a further request at a later stage - thought court should not normally initiate the process except where circumstances have changed sufficiently to permit a renewed application

Binding?

an indication given is binding, and remains binding on the judge who has given it, and also any other judge who becomes responsible for the case

it remains binding even if D subsequently absconds and falls to be sentenced also for his failure to attend

it will cease to be binding if the situation at the time when it is given changes

eg. guideline authority from CA alters the appropriate sentencing level

eg. new sentencing guideline is issued

Not binding?

if D chooses not to plead guilty, the indication will cease to have effect

Indication remains subject to the entitlement of AG to any eventual sentencing decision as unduly lenient to CA

Indication given will be the most severe sentence D would receive if he plead guilty

sentence may reduce in severity after mitigation, but cannot increase in severity than the one indicated

Indication process

indication would normally be sought at plea and case management hearing

normally take place in open court with full recording of the proceedings, and both sides represented, in the presence of D

reporting restrictions should normally be imposed

in complicated/difficult cases, no less than 7 days notice of intention to seek an indication should be given in writing to Prosecution and court

if application is made without notice when it should have been given, discount for guilty plea should be reduced accordingly

the fact that notice has been given, any reference to a request for a sentence indication, or the circumstances in which it was sought, would be inadmissible in any subsequent trial

Página 5

SENTENCING IN CROWN COURT

FIRST STAGE: Ascertaining the Facts of the Offence

where D pleads guilty, the first stage of the sentencing process is for Prosecuting counsel to summarise the facts of the offence

where it is at the conclusion of a contested trial (i.e. following a verdict of guilty by the court), it will normally be unnecessary for the facts to be opened

*** Split Pleas by Co-accused (i.e. D1 plead guilty, D2 plead not guilty)

Sentencing of D1 who pleaded guilty will normally be adjourned until the conclusion of the trial of D2 who pleaded not guilty

If D2 (who pleaded not guilty) is convicted, the facts will still have to be summarised for the benefit for D1 (who pleaded guilty)

Counsel's duty to assist court

there is a positive obligation on both Prosecuting counsel and Defence counsel to ensure that no order is made which the court has no power to make

Disputes about the facts following a GUILTY PLEA

where there is dispute about the facts of the offence, where P's version of how the offence was committed differs from that advanced by D in mitigation, albeit that D is clearly guilty on either version

eg. arise where D advance a written factual basis of plea which is not accepted by Prosecution or the court

Prosecuting counsel is under a duty to alert the court as to the possible use of the Newton Hearings in these circumstances

Written basis of plea

where D pleads guilty on a particular basis (eg. accepting only a limited version of the allegations made by P), he should set out the basis of the plea in a written form

CA said that any basis of plea should be reduced to writing, so that it is unequivocal and unambiguous. If it is not, the judge is entitled to ignore it.

NEWTON Hearings in CC

3 ways in which judge can approach the disputes

(1) obtain answer from the jury

where issues require a verdict from jury eg. intent

eg. when it is a question whether conviction should be under s 18 OAPA 1861 (with intention) or s 20 OAPA 1861 (no intention), jury can determine the issue by deciding whether or not the necessary intent has been proved by prosecution

(2) hear evidence from both side and come to his own conclusion

acting so to speak as his own jury on the disputed issue

(3) hear no evidence but listen to counsels' submissions and come to a conclusion

if the judge chooses to do so, where there has been a substantial conflict between P and D, the judge must come down to D's side i.e. D's version must so far as possible be accepted

General Approach

It is D's responsibility to alert Prosecutor to the areas of dispute

it is D's responsibility to notify P that a plea of guilty will be put forward on the basis that D disputes P's version of facts

prosecution should not be taken by surprise

Prosecution may accept D's account of disputed facts

if so, the agreement should be reduced to writing and signed by both advocates

if agreed basis of plea is not signed/not legible, judge is entitled to ignore it

if Prosecution rejects D's versions, areas of dispute should be identified in a document that focuses court's attention on the disputed facts

where P lacks the evidence positively to dispute D's account/contradict D's assertions (eg. where facts relied upon by D arise from his personal knowledge and depend on his own account of the facts), P should only agree that account if it is supported by other material

Neither P nor the judge is bound to agree facts merely because P cannot gainsay D's account

Court should be informed that D wish to have the dispute resolved in a Newton hearing

Requirement for hearing should be raised expressly to the court before the prosecution's opening (i.e. at the outset of the hearing), and in any event before the sentencing hearing begins (i.e. at the latest during mitigation)

Whatever view is formed by P is deemed to be conditional on the judge's acceptance on it

whether or not the basis of plea is agreed, the judge is not bound by any such agreement

the ultimate decision on whether or not a newton hearing is required is for the court (i.e. does not depend on counsel)

the judge is entitled to insist that any evidence relevant to the disputed facts should be called

the judge is entitled to hold a hearing even where the basis of plea has already been agreed

the judge is entitled to hold a hearing even where defence are against that course

CC has the power to hold a hearing even where such a hearing has already taken place in MC

If the judge has decreed that there should be a Newton hearing, P and D can call any relevant evidence

the hearing follows normal adversarial lines

The parties are given the opportunity to call such evidence as they wish and to cross-examine the witnesses called by the other side

where basic facts are not in dispute, P is not obliged to call any evidence

but P are still required to participate - in questioning D, they should adopt the role of exploring matters which the court wished to be explored

judge is entitled to draw any inferences

Defence cannot be forced to call evidence or otherwise participate, but may simply observe while the prosecution seek to establish their version to the judge’s satisfaction

however, where the issue arises from the facts that are within the exclusive knowledge of D, the defence should be willing to call them. If D does not give evidence, the judge may draw inferences as he thinks fit

In order to avoid giving the impression that he has made up his mind in advance, the judge should usually wait until the offender has been examined by his own counsel, and cross-examined by counsel for the prosecution, before questioning him

Judge should also approach the matter and direct himself as if he is the jury (as the trier of fact)

In particular this required the court:

(a) to go through the steps which Turnbull [1977] QB 224 required the judge to set out when directing a jury;

(b) to consider the admissibility of identification evidence which breached the PACE 1984 codes of practice; and

(c) to consider the reliability of other aspects of the evidence, e.g., discrepancies between the contemporaneous descriptions

and G’s appearance.

Credit due to him for guilty plea?

if hearing is resolved in D's favour, the credit should not be reduced

if D disbelieved/obliged P to call evidence from witness, conveys to the judge that he had no insight of the consequences for his offence, no genuine remorse for it, the judge may reduce the discount for the guilty plea

credit may be wholly dissipated by newton hearing, in which case the judge should explain his reasons

Adjournment are often unnecessary

Burden of proof are in accordance with the ordinary principles

BOP on Prosecution to satisfy the judge beyond reasonable doubt that their version of events is the correct one

Where Newton Hearing is unnecessary

(1) Insignificant dispute

principles in Newton apply only where dispute between P and D is substantial

it follows that, where the judge's sentence would be the same whichever version of facts he were to accept, there is no obligation on him to hear evidence - he can make up his mind one way or the other simply on the basis of counsels' representations

(2) Defence version manifestly absurd

"where there has been a substantial conflict, the version of D must 'so far as possible' be accepted"

the implication is that D story may be so implausible that a judge ought not to be obliged to waste time by hearing evidence before rejecting it

eg. in Hawkins (1985) 7 Cr App R (S) 351, H accepted that he had acted as the get-away driver in a joint offence of burglary but he only became aware of the full facts at a very late stage. The judge declined to hear evidence about the facts but sentenced on the prosecution version that H had been a knowing participant throughout. The Court of Appeal dismissed H’s appeal because the suggestion that ‘he was driving the car around to keep the engine warm or to look for a lavatory for himself, whilst unknown to him his colleagues were burgling a house was an incredible assertion’. The judge did not have to trouble himself with evidence.

Disputes about the facts following a GUILTY VERDICT

where D is convicted following a trial, it is for the sentencer to form his own view as to the facts of the offence established by the evidence, and to sentence accordingly

jury should not be asked to supplement a guilty verdict by stating the factual basis on which they reached their decision

THIRD STAGE: D's Reports

After the prosecution summary of the facts and antecedents evidence, the court considers any reports that have been prepared on the offender.

pre-sentence reports,

medical and psychiatric reports and

assessments for suitability for a community sentence

Pre-Sentence Reports

Circumstances in which a PSR MUST be obtained

When determining whether a CUSTODIAL SENTENCE should be imposed

Not obligatory where D is > 18 yo, and the court is of the opinion that it is unnecessary

Obligatory where D is youth, unless the court considers it unnecessary, and in reaching that decision has considered any existing PSSR

Before forming an opinion as to the suitability of D for various types of community sentence

Medical and Psychiatric Reports

the court needs to be satisfied, on the written or oral evidence of TWO medical practitioners, that D is suffering from a mental disorder within the meaning of Mental Health Act 1983, such as to warrant the making of a hospital order

Before a custodial sentence is passed on a mentally disordered offender, a report from AT LEAST ONE medical practitioner is required

the medical practitioner who made the report may be required to attend for cross-examination

SECOND STAGE: Evidence of Character and Antecedents

After the prosecution summary of the facts, or immediately after the jury’s verdict of guilty if it was a not guilty plea, it is the responsibility of the prosecution to adduce evidence about the offender’s character and antecedents.

The evidence is based upon a copy of written antecedents prepared in advance by the police

Sentencing D for matters of which he has not been convicted

the basic principle for sentencing is that D should be sentenced only for those crimes he has been convicted and not for anything else the court may have consider him to have done

Exceptions to this principle (where sentencer may properly be influenced by other offences not officially before the court

(1) Taking into account a less serious secondary offence which has not been charged but the commission of which is implicit in, and represents an aggravating feature of, the more serious primary offence

(2) If the offender expressly asks for the other offences to be taken into consideration (TIC)

these are offences which D had not been charged, but which he is prepared to admit to wipe the slate clean

the benefit is that he will face a lower sentence than if each of these offences had been included on the charge sheet/indictment (he will face an increased sentence but not as heavy as if D was separately convicted for the offence)

(3) if the prosecution case is that the offences on the indictment are merely samples of a continuing course of conduct and the defence accept that to be so

prosecution may invite the judge to treat the offences on the indictment of which D has been convicted/pleaded guilty, as samples of a continuing course of conduct

this is an attractive course where D appears to have committed a large number of similar offences over a protracted period

FOURTH STAGE: Defence Mitigation

The final stage in the sentencing process before the sentence is pronounced is the presentation of defence mitigation

Before passing sentence, the court must give D an opportunity to make representations and to introduce evidence relevant to sentence

Where D is < 18 yo, the court may give his parents/guardian/other supporting adult such an opportunity as well

in the Defence counsel's discretion, he may additionally call witnesses to speak to D's generally good character, or to explain why, in their view, D acted the way he did

FIFTH STAGE: Pronouncement of Sentence

After the defence mitigation, the judge pronounces sentence.

Normally he does so immediately upon the close of defence counsel’s address, but there is no objection to his adjourning briefly to consider his decision.

Giving Reasons

Judge is obliged to give reasons for, and explain the effects of the sentence passed, save where the sentence is fixed by law/otherwise mandatory

The court must explain

(a) its reasons for deciding on the sentence passed, and

(b) the effect of the sentence, and the consequences of non-compliance

it is essential that the reasoning is articulated orally in public, even after the court has taken time to consider and to reduce those reasons to writing

DEFERRING SENTENCE?

Sentence may be deferred, and the purpose is to enable to court to have regard to:

his conduct after conviction (eg. making by him of reparation for his offence), or

any change in his circumstances

Requirement that must be satisfied to defer sentence:

(a) D consents to it, and

(b) Court must be satisfied the exercise of power is in the interests of justice

Court must fix the date to which sentence is deferred

the maximum period allowed is SIX MONTHS

Sentence may be deferred only ONCE

The new court dealing with D after the period of deferment may deal with him in any way the deferring court would have done

eg. where sentence was deferred by a magistrates’ court, committing the offender for sentence under s. 3.

Where a magistrates’ court defers sentence and then commits under s. 3, the Crown Court may also defer sentence, that being the exception to the rule that sentence may be deferred only once (s. 1D(3)).

Where there is a requirement to make a referral order on a young offender (see E10.5), the court may not defer passing sentence on him.

Página 6

SENTENCING PROCEDURE IN MAGISTRATES' COURT

Adjournments Prior to Sentence

s10(3) MCA 1980

"A magistrates’ court may, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case, exercise its power to adjourn after convicting the accused and before sentencing him or otherwise dealing with him; but, if it does so, the adjournment shall not be for more than four weeks at a time unless the court remands the accused in custody and, where it so remands him, the adjournment shall not be for more than three weeks at a time.

Maximum period for adjournment after conviction is:

4 WEEKS on BAIL, or

3 WEEKS in CUSTODY

"at a time"

court is not obliged to sentence at the end of the first adjournment only, but may, if necessary adjourn again

eg. adjourn to allow PSR to be prepared

PRESENTING THE FACTS, CHARACTER AND ANTECEDENT

essentially the same as in the CC

The court which passes sentence need not be composed of the justices who convicted D

where the sentencing court consists of justices who were not sitting when D was convicted, the court must make such inquiry into the facts and circumstances of the case as will enable the justices to be fully acquainted with those facts and circumstances

this will invariably be done through the summary of the relevant facts presented by Prosecutor, prior to any plea in mitigation by Defence

Newton Hearings

where D pleads guilty but wants to be sentenced on a different basis to the facts put forward by P, he must set out that basis in writing, identifying what is in dispute

Court may invite parties to make representations about whether the dispute is material to sentence

If the court decides that it is a material dispute, the court will invite such further representations/evidence as it may require and then decide the dispute

however, it is suggested that where the difference in versions put forward by parties is significant (would make a difference to sentence passed), the court has a choice of hearing further representations/evidence, it is submitted that MC should follow the Newton Hearings procedure

*** Split Pleas by Co-accused where one of the D pleads guilty on disputed factual basis

where there are co-Ds - D1 pleads not guilty, D2 pleads guilty but on a factual basis that P do not accept, MC should allow the following to take place:

Newton hearing in respect of D2 who has pleaded guilty - but to take place after the conclusion of the trial of D1 who pleaded not guilty

i.e. cannot hear the trial and the Newton hearing together

the effect is that the evidence in the trial of D1 who pleaded not guilty can be taken into account in the subsequent Newton hearing, which should generally be conducted by the same judge/bench who heard the trial

ADJUDICATION AND PRONOUNCEMENT OF SENTENCE

Majority Decision

As with any adjudication of a magistrates’ court, the decision as to sentence may be by a majority of those sitting. In the event of an equal division, the court should adjourn under the MCA 1980, s. 10(adjournments after conviction and before sentence), for the matter to be reconsidered at the resumed hearing.

Reasons and explanation

when passing sentence, the court must explains the reasons for the decision on that sentence, unless neither D nor any member of public is present

the court must also explain the effect of the sentence, the consequences of failing to comply with any requirements imposed, and any power it has to cary or review sentence, unless D is absent, or his ill-health or disorderly conduct makes it impracticable to do so

The court must identify any relevant definitive sentencing guidelines and explain how it has discharged its duty to follow those guidelines; where the court did not follow any such guidelines because it was satisfied that it would be contrary to the interests of justice to do so, it must state why

RESTRICTIONS ON MC'S POWERS OF SENTENCE

Either-way offences

s78(1) PCC(S)A 2000: maximum sentence MC may impose upon D summarily convicted of an either-way offence is

6 MONTHS IMPRISONMENT and/or

a FINE OF ANY AMOUNT

Specific provisions were made for maximum fines for some specified offences

However, if the specific provisions provides that 'notwithstanding anything in s78(1) PCC(S)A 2000 the maximum term shall be (a higher number) months', s78(1) is overridden and the maximum sentence shall be the higher one

Summary offences

The maximum sentence of imprisonment (if any) for a summary offence is

6 MONTHS or

that prescribed by the statute creating the offence,

whichever is the less

Again this is subject to the six-month ceiling in s. 78(1) being expressly overridden by any other enactment.

The maximum fine for a summary offence is whatever the offence-creating provision specifies

The offence-creating provision will indicate whether a fine may be imposed in addition to any sentence of imprisonment or only as an alternative thereto.

When magistrates are dealing with D for several summary offences punishable with fines at levels 1 to 4, there is no restriction on the aggregate fine that may be imposed

Aggregate Prison Terms

MC sentencing D for several offences and imposing imprisonment for two or more of them may make the terms concurrent or consecutive

this is subject to the maximum aggregate term that MC may impose on one occasion for several offences:

6 MONTHS, or

if sentencing for TWO OR MORE EITHER-WAY OFFENCE - 12 MONTHS

when MC deals with D for breach of suspended sentence, they may, if they choose to activate part/all of the suspended term, make it run consecutively to any term of imprisonment they impose for the offences that put D in breach

the aggregate of the suspended term for the present offences may exceed the aggregate normally permitted

Compensation Orders

where D has attained 18 yo, there is no limit on the amount of compensation MC may order in respect of each offence

Detention in a Young Offender Institution (YOI)

Where D is 18 - 20 yo, MC may impose a sentence of detention in YOI

Court's powers are limited to the same extent as are their powers to imprison offenders > 21 yo

Where D is under 18 yo at the date of conviction, YC may impose a detention and training order

maximum duration is 24 months (12 months' custody and 12 months' supervision)

Non-custodial Sentences

identical to those of CC

Página 7

COMMITTAL FOR SENTENCE

Committal under s 3 PSS(S)A 2000

applies where MC has convicted D of one or more EITHER-WAY offences, and the court takes the view that the seriousness of the offence is such that its sentencing powers are inadequate, MC may

commit D (in custody/on bail) to CC to be sentenced

CC can then pass sentence on D as if he had been convicted on indictment

i.e. limitations on MC's sentencing powers do not apply

Committal under s 4 PCC(S)A 2000

where (1) D has indicated that he will plead guilty to an EITHER-WAY offence (and so is deemed to have pleaded guilty to it), and (2) he is also sent for trial for one or more related offences, MC may

commit D to CC for sentence in respect of the either way offence which he pleaded guilty

One offence is related to another if the charges for them could be joined in the same indictment if both were to be tried in CC

Thus, the 2 charges must

be founded on the same facts, or

be, or be part of, a series of offences of the same/similar character

Where MC has committed D for sentence, CC can exceed MC's sentencing powers in respect of the either-way offence so committed ONLY IF either

MC stated that they considered their sentencing powers are inadequate to deal with D for that offence (and so had power to commit him for sentence under s 3), or

he is CONVICTED by CC of one/more of the related offences

Committal under s 6 PCC(S)A 2000

Primary committal power is a power to commit for sentence which may be used to supplement a committal under provisions listed in s 6(4), including

committal for sentence under s 3 to 4A PCC(S)A 2000

committal for sentence in respect of the breach of a conditional discharge imposed by CC

committal to be dealt with for breach of a suspended sentence imposed by CC

Where MC exercises a 'primary' committal power in respect of an INDICTABLE offence (in this context, an either-way offence), it may

commit D to CC to be dealt with in respect of any other offence of which he stands convicted (whether summary or indictable) that the MC has jurisdiction to deal with as regards sentence

Providing that the committing court (MC) would be able to deal with the matter if it were not to commit, the power to commit arises, even if the conviction was by a different court

Example

if MC has decided to commit D under s 3 for one either-way offence, and the committal under s 6 might relate to:

(a) another, less serious, either-way offence of which MC have convicted D on the same occasion

committal under s3 is inappropriate because the office is not sufficiently serious to render MC's sentencing power inadequate

(b) a summary offence of which they have convicted D on the same occasion

committal under s3 is inappropriate because it does not extend to summary offences