Custodial Sentences

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AVAILABLE CUSTODIAL SENTENCES

Custodial sentence means

(a) a sentence of imprisonment

The term ‘sentence of imprisonment’ does not include a committal for contempt of court or any kindred offence (s. 76(2))

D < 21 yo at the date of CONVICTION

cannot be sentenced to imprisonment

cannot be committed to prison for any reason eg. non-payment of a fine

if remanded in custody, committed in custody for sentence, or sent in custody for trial under s51 or s51A CDA 1998, he may be committed to prison for the period before his case is disposed of

(b) a sentence of detention under the PCC(S)A 2000, s. 90 or 91,

(c) a sentence of detention under the CJA 2003, s. 226, 226B or 228,

(d) a sentence of custody for life under the PCC(S)A 2000, s. 93 or 94,

(e) a sentence of detention in a young offender institution, or

(f) a detention and training order. The term ‘sentence of imprisonment’ does not include a committal for contempt of court or any kindred offence (s. 76(2)).

(don't miss this out because it does not contain the word "sentence")

​​​​​​​MAXIMUM CUSTODIAL SENTENCES

Maximum prison terms for INDICTABLE offences and offences triable EITHER-WAY are laid down by statute creating those offences

But where D is

(a) convicted on INDICTMENT of an offence against any enactment, and

(b) liable to be sentenced to imprisonment

but the sentence is not limited to a specified term by any enactment, the maximum prison sentence available is TWO YEARS

note: this provisions does not apply to common-law offences (only cover offences created by statute)

For common-law offences, the penalty which CC may impose is not subject to any limitation, except that it must not be disproportionate to the actual offence committed

Limits on Imposition of Imprisonment: Magistrates' Courts

Prison sentence which MC may impose

Minimum: 5 DAYS in respect of any one offence

Maximum: 6 MONTHS in respect of any one offence

unless a shorter maximum term is provided by statute

6-month limit does not apply to imprisonment for non-payment of a fine

Aggregate term which MC may impose

Maximum: 6 MONTHS

If TWO of the terms are imposed for EITHER-WAY offences - Maximum: 12 MONTHS

This provision also apply to sentence of detention in Young Offender Institution (YOI)

This provision does not apply to detention and training order salutary

Note: Where in CC, guilty plea is accepted to SUMMARY offence, the CC judge is limited to the maximum total sentence of 6 MONTHS

cases where CC will try summary offence - common assault, committed in breach of suspended sentence etc

if there are more than one summary offences, CC judge is entitled to activate the suspended sentence for 5 months consecutively, making a total of 12 months

Detention of offender for one day in court-house or police station

MC that has power to imprison D may instead order him to be detained within the precincts of the court-house, or at any police station until such hour, not later than 8pm on the day on which the order is made, as the court directs

such order shall not operate to deprive the person of a reasonable opportunity of returning home on the same day

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RESTRICTIONS ON IMPOSING CUSTODIAL SENTENCES

Where D fails to express his willingness to comply with a requirement proposed to be included in Community order and where the requirement requires an expression of such willingness, a court may pass a custodial sentence on D

Community order's requirements which require D's expression of willingness to comply

Mental health treatment requirement

Drug rehabilitation requirement

Alcohol treatment requirement

Two or More Offences

where D stands convicted of two or more offences, in deciding whether custody is justified, the court must consider the seriousness of the sum of the offences, provided that these are 'associated' with one another

One offence (O1) is to be regarded as associated with another (O2) if

D is convicted of it (O1) in the proceedings in which he is convicted of the other offence (O2) (convicted in the same proceedings, or

eg. D was dealt with for two offences; the second having been committed while the offender was on bail in respect of the first. The offender was sentenced for the two offences on the same occasion; hence, they were ‘associated’ for the purposes of s. 161(1).

D is convicted of it (O1) in earlier proceedings, but sentenced for it (O1) at the same time as he is sentenced for that offence (O2) (sentenced in the same proceedings), or

eg. where a sentencer is sentencing for a new offence and at the same time revokes a community sentence which had earlier been passed on the offender and re sentences for that offence, the new offence and the earlier offence are associated offences.

eg. where the sentencer passes a sentence for an offence in respect of which a conditional discharge had earlier been granted, the new offence and the earlier offence are associated offences.

D admits the commission of it (O1) in the proceedings in which he is sentence for the other offence (O2) and request the court to take it into consideration in sentencing him for that offence (O2) (admit commission of O1 in the O2 sentencing's hearing)

Examples of NOT associated offences

where D had been committed to the Crown Court in respect of an offence of theft which placed him in breach of a suspended sentence imposed for an earlier offence of theft, the two offences were not associated offences.

where D has been convicted in respect of a number of charges which are represented as ‘sample counts’, offences which are not included in the indictment, nor formally taken into consideration, are not associated offences

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LENGTH OF SENTENCE

When it is necessary to impose a custodial sentence, that sentence should be as short as possible to achieve the goals of that sentence

when assessing what is the shortest term commensurate with the seriousness of the offence, the court should not take into account any license or post-sentence supervision requirements which may be imposed upon D's release

Dealing with Several Offence

when D is being sentenced for several offences, it could lead to a total sentence which is disproportionate to the overall seriousness of the offending behaviour

the court may apply the totality principle in these circumstances

where court is dealing with D for several offences

one/more if which is/are so serious that only custody can be justified,

but the remainder of which are not so serious

the court can pass custodial sentences for the lesser offences

those sentences should normally run concurrently with the sentences for the more serious offences

those sentences should not increase the length of the overall term

Considering Shorter Period

where a court is considering imposing a custodial sentence of about 12 months or less, it should ask itself whether a shorter period might be equally effective

this is especially where this will be D's first prison sentence

eg. 6 months may be just as effective as 9 months

Time Remanded in CUSTODY to count as time served (s 240ZA CJA 2003)

periods of remand in custody is credited automatically, so it is not necessary for sentencers to give any direction that time served on remand in custody should count towards sentence

"automatic" = court order is not required

s 240ZA applies to

sentences of imprisonment,

detention in a young offender institution,

detention under the PCC(S)A 2000, s. 91,

custodial sentences for certain offenders of particular concern, and

extended sentences of imprisonment or detention.

*** s240ZA does not apply to detention and training order, so it remains necessary when imposing DTO to take into account any period spent in custody on remand

Also, in respect of sentences where the law requires the setting of a specified period under the PCC(S)A 2000, s. 82A (life sentence where that sentence is not fixed by law), s. 82A(3)(b) of that Act requires the court, when fixing the specified period, to take into account the effect which s. 240ZA would have had if a determinate sentence had instead been imposed

In fixing the minimum term applicable in a case of murder, the court is similarly required by s. 269(3)(b) to take into account the effect of s. 240ZA

in cases where D has spent a substantial period in custody on remand

that matter may still be relevant to the court when deciding whether a shorter custodial sentence is justified, or whether in effect D has already served his sentence in custody on remand

Crediting Periods of Remand on BAIL

where D has been remanded on bail and that bail was subject both to

a qualifying curfew condition (requiring D to remain at specified places for a total of not less than 9 hours in any given day), AND

an electronic monitoring condition

court must normally direct the 'credit period' to count as time served by D as part of the sentence

unlike s 240ZA where court order is not required, the court must direct that the credit period is to count as time served

Concurrent and Consecutive Determinate Custodial Sentences

where D is convicted on more than one count, the court should impose separate sentences on each count

Sentences of imprisonment or detention in a Young Offender Institution (YOI) may run concurrently or consecutively

If court fails to make it clear which sentence relates to which count & whether they are concurrent/consecutive, it is presumed that the sentences are concurrent

where court passes a determinate custodial sentence on D who is already serving one/more such sentences, it must make clear whether the fresh sentence is to be served concurrently/consecutively to the existing sentence

It is unlawful to pass a sentence partly concurrent with & partly consecutive to another sentence

there is no power to antedate the commencement of a sentence

so, new sentence takes effect from the date on which it is imposed, unless sentencer specifies a later date

Concurrent sentence

where offences arise out of the same incident, sentences should be concurrent

eg. multiple deaths arise from a single act of dangerous driving

eg. where convictions for dangerous driving and for inflicting GBH relate to the same incident

eg. where digital and penile penetration of V has occurred during the same sexual assault

eg. where D committed 3 offences of indecent exposure during the course of one afternoon

occasionally, consecutive sentences are upheld for offences committed on the same occasion

eg. where it would be bizarre to add no further custodial term for the other matters

Consecutive sentence

term of imprisonment may run consecutively even where that results in a total term greater than the maximum which could have been imposed for any of the offences

consecutive sentences should normally be imposed where

D has used violence to resist arrest for another offence

D has used violence to make good his escape

where D is in possession of a firearm at the time of committing another offence

where D commits an offence on bail

custodial sentence imposed for failure to surrender to bail

custodial sentence imposed for escape from lawful custody

custodial sentence for offences committed within prison by a serving prisoner

where D attempted to interfere with the course of justice in relation to an offence committed by him

in respect of imposition of a determinate sentence upon D who is currently serving a determinate sentencing, totality principle applies

it is important to note that a court imposing a determinate sentence must not direct that the new sentence shall commence on the expiration of any other prison sentence from which D has been released on license

it is wrong in principle to pass a sentence disproportionate to the most recent offence in an attempt to secure that D serves more than the remainder of the license period of the original offence

Relevance to Sentence of Early Release Provisions

matters of early release, licence and home detention curfew should be left out of account when imposing sentence

i.e. should not take these into account when adjusting the sentence

sentencer should not increase sentence length merely to bring D within a different early release category

Appeal

however, trial judge's error when explaining the effect of early release provisions upon D's sentence will not invalidate the sentence/provide grounds for saying that the sentence was wrong in princple

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MANDATORY & MINIMUM SENTENCES

D > 21 yo who is convicted of murder must be sentenced to imprisonment for life

but not related offences eg. attempted murder, conspiracy to murder

< 21 yo on the date of CONVICTION (i.e. 18, 19, 20) = custody for life

< 18 yo on the date of COMMISSION of the offence (i.e. 17 or below) = detention at Her Majesty's pleasure

MURDER: MANDATORY LIFE SENTENCE

Early release provisions

court must normally make an order that ERP are to apply to D as soon as he served the part of his sentence specified in the order

"the part" os to be such as the court considers appropriate, taking into account

seriousness of the offence

crediting periods of remand in custody/bail

if D > 21 yo on the date of COMMISSION of the offence, the court may, because of the seriousness of the offence, order that ERP are not to apply to him

this has the effect of imposing 'whole life' minimum term

Minimum term fixed for murder is concerned with the seriousness of the offence, not the dangerousness of D

Court must state the reasons for its decisions

MINIMUM CUSTODIAL SENTENCES - CLASS A DRUG OFFENCES

If

D > 18 yo on the date of COMMISSION of the offence

the current Class A drug trafficking conviction is his THIRD conviction

CC shall impose a custodial sentence of AT LEAST 7 YEARS, unless the court is of the opinion that there are particular circumstances which relate to the offence/D which would make it unjust to do so

Early guilty plea reduction

Where D has pleaded guilty, the court may not impose a sentence which would be less than 80% of the minimum sentence specified

80% of 7 years = slightly less than 5 years 8 months

if sentence has taken a starting point higher than the minimum sentence, 1/3 reduction may be perfectly appropriate, always provided that the final sentence is not less than 80% of the minimum sentence

therefore, it is incorrect to say that where the minimum provision applies the discount for early guilty plea must not exceed 20

Where the sentencer is of the opinion that there are particular circumstances which would make it unjust to impose the minimum sentence

the limited reduction permissible for a guilty plea no longer applies

judge may reduce sentence to a sentence less than 80% of the minimum sentence specified to reflect a guilty plea

MINIMUM CUSTODIAL SENTENCES - DOMESTIC BURGLARY

If

D > 18 yo on the date of COMMISSION of the offence

the current domestic burglary conviction is his THIRD conviction

CC shall impose a custodial sentence of AT LEAST 3 YEARS, unless the court is of the opinion that there are particular circumstances which relate to the offence/D which would make it unjust to do so

a previous domestic burglary took place outside UK is a relevant offence if it was committed after 15 August 2010

Early guilty plea reduction

Where D has pleaded guilty, the court may not impose a sentence which would be less than 80% of the minimum sentence specified

80% of 3 years = just less than 2 years 5 months

if sentence has taken a starting point higher than the minimum sentence, 1/3 reduction may be perfectly appropriate, always provided that the final sentence is not less than 80% of the minimum sentence

therefore, it is incorrect to say that where the minimum provision applies the discount for early guilty plea must not exceed 20%

If a lower starting point (close to 3 years) had been appropriate (which would result in a clash between - 'no less than 80%' requirement and D's expectation of a full discount under the early guilty plea scheme

in such circumstances, the statutory provision must take precedence

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SUSPENDED SENTENCES

applies to

sentences of imprisonment, and

sentences of detention in Young Offender Institution (YOI)

not available to Detention and Training order i.e. cannot be suspended

Maximum sentence of imprisonment the court can suspend

CROWN COURT

available where a court imposes a determinate custodial sentence of

NOT LESS THAN 14 DAYS

NOT MORE THAN 2 YEARS

i.e. sentence cannot be suspended for offences where prison sentence would be more than 2 years

Consecutive terms: where two or more sentences are to be served consecutively, the power to suspend sentence is exercisable only if the aggregate of the terms does not exceed 2 years

MAGISTRATES COURT

The power to impose a suspended sentence in a magistrates’ court is limited in the same way in which magistrates’ powers to impose prison sentences are limited

MC's maximum sentence of imprisonment is 6 MONTHS for single offence, or 12 MONTHS for two or more either-way offences

this means that the maximum sentence of imprisonment which MC can suspend is

6 MONTHS for one or more SUMMARY offences & single EITHER-WAY offence

12 MONTHS for two or more EITHER-WAY offences

OPERATIONAL PERIOD (period during which sentence is suspended)

cannot exceed 2 YEARS

this is the same in both MC and CC

Combining with other sentences/orders

an immediate prison sentence and SS should not be imposed on the same occasion

SS cannot be imposed on D who is currently serving a term of imprisonment

A court which passes a suspended sentence on an offender must not on the same occasion impose a community sentence in respect of that offence or any other offence for which he is dealt with by the court

a suspended sentence cannot be combined with a discharge when sentencing for a single offence (see E12.4) but a discharge could be given for one offence when a suspended sentence was passed in respect of another offence sentenced on the same occasion.

A fine may be combined with a suspended sentence, but it is improper to combine them when a fine standing alone would have been the proper sentence.

There is no restriction on imposing ancillary provisions such as compensation orders, restitution orders, or deprivation orders, at the same time as a suspended sentence.

SS cannot be ordered unless all statutory provisions as to imposition of sentence of immediate imprisonment have been observed

custody threshold must have been crossed

D must be > 18 yo

Others

a suspended sentence must not be imposed as a more severe form of community order. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.’

The guideline also makes it clear that a custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.

As far as the operational period is concerned, the guideline says that ‘the time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to six months’.

IMPRISONMENT OF REQUIREMENTS

the court is not obliged to order than D undertakes one of the requirements i.e. sentence of imprisonment can be suspended with no other requirements/conditions attached

requirements which the court may order D to comply with during the supervision period are similar to that of CO

whenever the court passes SS which contains two or more different requirements, it must consider whether, in the circumstances of the case, the requirements are compatible with each other

Power of Court to deal with Breach of Suspended Sentence

SS may be breached in one of the following two ways:

(a) D has failed w/o reasonable excuse to comply with any of the community requirements of the suspended sentence order

(b) D is convicted of an offence committed during the operational period of a suspended sentence order

if the new offence is a summary-only offence, CC is limited to MC's powers in dealing with it

if the new offence is dealt with by way of discharge, it does not count as a conviction for the purpose of this provision

Note: Even if by the time the court comes to deal with the breach, the operational period of SS has come to an end, the court is still required to proceed

The court must deal with D in one of the following ways:

(a) order that SS be activated in full (i.e. with the original term unaltered)

(b) order that SS be activated in part (i.e. with the substitution for the original term a lesser term)

the court must make an order under (a) or (b) (activate in whole or in part), unless it would be unjust to do so in view of all the circumstances, including

the extent to which D has complied with any community requirements of SS order, and

the facts of the subsequent offence (if committed further offence)

if activated

may be ordered to run consecutively/concurrently to any custodial sentence imposed for the offence which triggered the breach

usual approach is to pass consecutive sentence

cannot impose a longer custodial term longer than that originally suspended

also cannot impose a longer sentence for the new offence simply by virtue of it having been committed in breach of SS

if not activated

court must state its reasons

(c) order D to pay a fine < £2,500

(d) (if breached CR) impose more onerous community requirements

(e) (if breached CR) extend supervision period (but < 2 years)

(f) (if breached CR) extend operational period (but < 2 years)

(g) (if no CR imposed) amend the order by extending operational period

also, where SS was imposed without requirements, the court dealing with breach has power only to

activate the sentence in whole/in part, or

impose a fine

it is not permissible to add requirements

it is not permissible simply to revoke the order, or to make no order with respect to it