Non-custodial sentences

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FINES

CC's powers to impose fines

generally, CC can impose a fine on an offender either instead of, or in addition to, dealing with him in any other way

sentences which CANNOT be combined with fine eg. hospital order, discharge

If CC imposes fine, it may make an order

(a) allow time for the payment

(b) direct payment by instalment

(c) in the case of recognisance, discharge the recognisance or reduce the amount due under it

CC's power and duty to fix term in default

term in default = custodial sentence that D will serve if he doesn't pay his fine

CC must fixed a term of imprisonment/detention to be served in default in every case where it imposes a fine (but failure to fix such term DOES NOT invalidate the fine itself)

term fixed should relate to the whole sum, rather than to any instalment

Concurrent or consecutively

where fine is imposed in respect of >1 offence, term may be ordered to run concurrently or consecutively

consecutive custodial sentence is subject to the totality principle

the term may be imposed consecutively to a maximum prison sentence imposed for the same offence

(youth) term may run concurrently/consecutively to any term of imprisonment/detention in a young offender institution

MC's powers to impose fines

relevant offence is punishable by a fine of ANY AMOUNT

an offence is a relevant offence whether it is a summary offence or offence triable either way

FINES: SENTENCING PRINCIPLES

when an individual has been convicted of an offence, may make a 'financial circumstances order' before sentencing him

financial circumstances order = an order requiring the relevant individual to give to the court, within specified period, such a statement of his assets and other financial circumstances as the court may require

Both MC and CC may make such order - has power to do so even when D pleads guilty without appearing before the court

Consequences of failing to comply with FCO - summary conviction to a fine not exceeding Level 3 ( if he knowingly give false statement - Level 4)

Proportionality to Gravity of offences

selection of fine as a sentence and the determination of the appropriate level of any fine should reflect the seriousness of the offence

if the offence requires an immediate custodial sentence, fine is inappropriate

imposition of the maximum available fine should be reserved for the most serious instances of offence which are reasonably likely to occur

existence of significant mitigation (eg. early guilty plea) should normally preclude the imposition of the maximum fine

where an offender had spent time on remand in custody but subsequently receive a fine as sentence, some credit should be given for the time spent in custody - amount of credit is a matter of sentencer's discretion

Take into account offender's means

even though fine is meant to be a punishment, but imposition of fine which is quite beyond the means of the D is wrong in principle

where D lacks the means to pay, it is contrary to principle to impose a custodial sentence instead

where D is well-off and paying fine will cause him little inconvenience, it is also contrary to principle to impose a custodial sentence instead

in the case of a very wealthy individual/company, the fine should be paid immediately/within a few days, UNLESS there is cogent evidence that more time is required

court should adjust the level of fine in accordance with D's means

i.e. fine must reflect D's means, not that of his family

Instalments should require payment within a REASONABLE TIME

where fine is ordered to be paid by instalments, it should normally be capable of being paid off within 12 months

HOWEVER, the maximum time is NOT limited to 12 months

Exception - corporate defendants' fines may be payable over a substantially longer period than individual's

Combining fines with other Sentences/Orders

There is NO restriction on combining fines with imprisonment/other custodial sentences, whether in respect of the same offences or different offences sentenced on the same ocsasion - however not desirable as incarceration may deprive D the means to pay

In any event, a FINE and a CUSTODIAL SENTENCE will be an inappropriate combination where the offender lacks the means to pay the fine

HOWEVER, if the fine is being used as a means of removing D's profit from his offending, a fine may be combined with an immediate custodial sentence - thought more appropriate approach would be to make a confiscation order

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COMMUNITY SENTENCE

community sentence consists of community order or youth rehabilitation order (which consists one or more requirements imposed by the court)

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

when passing a community sentence, (a) the requirement(s) comprised in the sentence must be the most suitable for D, and (b) the restrictions on liberty must commensurate with the seriousness of the offence

Pre-sentence report

before imposing a CS, sentencing court must normally obtain a pre-sentence report, BUT it need not obtain such a report if it considers it unnecessary to do so

COMMUNITY ORDER REQUIREMENTS (Requirements which the court may order D aged >18 yo)

D/probation officer may apply for amendment to CO requirements

[table]

Enforcement of Community orders

conviction for a further offence DOES NOT constitute breach of a community order

Warning and enforcement

if officer is of the opinion that D has failed without reasonable excuse to comply with the requirement, he must give a WARNING and inform D that if within the next 12 months he again fails to comply, he will be brought back before the court

'reasonable excuse': the mere fact that D has lodged an appeal against conviction/sentence DOES NOT amount to a reasonable excuse for non-compliance

This discretion provided for probation officer could be exercised just once

if there has been a warning and within 12 months there is a further failure to comply, he must refer the matter to an enforcement officer

the enforcement officer is then under a duty to consider the matter, and where appropriate cause an information to be laid

BREACH OF REQUIREMENT IMPOSED BY COMMUNITY ORDER

D must be sentenced on the basis of his age when the ORIGINAL ORDER was made

any breach should either (a) be admitted by D, or (b) formally proved to the criminal standard of proof - prosecution needs to put before the court the facts of the original offence and the facts of the breach

if the court is satisfied that D has failed w/o reasonable excuse, the court MUST deal with him in one of the following ways (there is NO power to take 'no action' on breach)

1. Amend CO's terms to impose more onerous requirements which the court could include if it were then making the order

court may EXTEND the duration for up to 6 MONTHS beyond the original end date (even if the total duration will exceed 3 years), but such an extension may be exercised only once

2. Order D to pay fine not exceeding £2,500

3. Deal with him (for the original offence) in any way in which the court which make the order could deal with him if he had just been convicted of the offence

if CC proceeds under this, it must revoke the CO if it is still in force

4. If the original offence was NOT punishable by imprisonment, D aged > 18 and he had wilfully and persistently failed to comply, impose a sentence of imprisonment for a term not exceeding 6 MONTHS

if CC proceeds under this, it must revoke the CO if it is still in force

Allocation of court

If CC have included in CO a direction that any breach is to be dealt with by MC, MC deal with it

If CC x include such direction, CC deal with breach

if CC made the CO - MC may commit D in custody, or release him on bail to appear before CC

if MC made the order, it could deal with D in any way MC could have dealt with him

if CC made the order, it could deal with D in any way CC could have dealt with him

if MC made the order but sends to CC, CC could deal with D in any way MC could have dealt with him

Revocation of community order

where, on D/probation officer's application, having regard to changed circumstances since the order was made, it is in the interests of justice to revoke the order/deal with D for the offence in some other way (eg. when D is making good progress, responding satisfactorily to the requirements)

Others

Court must always consider the (a) nature of the breach and (b) extent of compliance with the order

if the breach report indicated that the probation service wished to continue working with the offender, that should be given considerable weight

NO loss of time direction available - as time served on remand is now deducted automatically from custodial sentence, a judge who revokes the order and imposes custody has NO power to direct that the time spent of remand shall not count

COMMISSION OF FURTHER OFFENCE DURING CURRENCY OF COMMUNITY ORDER

Power to deal with D depends upon his being CONVICTED while the order is still in force

i.e. if the further offence was COMMITTED while the order is current, but CONVICTED while the order has expired, the power does not arise)

The court MAY

Revoke the community order and take no further action (D will be sentenced only in relation to the new offence)

Revoke the community order and deal with him (for the original offence) in any way in which the court which make the order could deal with him if he had just been convicted of the offence (i.e. re-sentence D for the original offence along with the new offence)

Allocation of court

if CC made the CO - MC may commit D in custody, or release him on bail to appear before CC

if MC made the order, it could deal with D in any way MC could have dealt with him

if CC made the order, it could deal with D in any way CC could have dealt with him

if MC made the order but sends to CC, CC could deal with D in any way MC could have dealt with him

Others

Court must take into account the extent of compliance with the order