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Sentencing Principles - Coggle Diagram

- - - - Aggravating factors affecting the seriousness of the offence should always be taken into account when deciding, inter alia, whether an offence is 'serious enough' to warrant a community sentence or 'so serious that neither a fine alone nor a community sentence can be justified'
        
        Lies told by the offender, whether at police interview or during trial, including attempting to cast blame on a co-accused, are not an aggravating factor for sentence
      - However, where another person has suffered as a result of being wrongly blamed by the offender, this will make the offence more serious
        
        Prevalence
        
        The 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 would be wrong to further penalise individual offenders by increasing sentence length for committing an individual offence which happens to be prevalent locally
        
        There may be exceptional circumstances that lead a court to decide that local prevalence should influence sentencing levels
        
        It is essential that sentencers both have supporting evidence from an external source to justify claims that a particular crime is prevalent in their area and are satisfied that there is a compelling need to treat the offence more seriously than elsewhere
        
        Such evidence may be supplied by the local Criminal Justice Board or emerge from a 'community impact statement'
        
        It was not open to a judge to increase a sentence for prevalence based on the judge's personal view that there was 'too much of this sort of thing going on in this area'
        
        Judicial Indications of Sentence
        
        A plea of guilty must be entered voluntarily
        
        If the accused is deprived of a genuine choice as to plea and in consequence purports to plead guilty, the plea is a nullity and the conviction will be quashed on appeal
        
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- - - - The correct approach to judicial indications of sentence is set out in Goodyear [2005] and sets out a detailed procedure for an application for an indication of the maximum sentence that would be passed if a guilty plea were entered
        
        Proper roles in the process are identified for the court, and those responsible for prosecuting and defending
      - The guidelines also demonstrate the need to take into account the review of any sentence then passed, either by way of an appeal by D or a reference
      - Further, where the proper procedure is not followed and D enters a guilty plea as a result of an informal indication, that conviction may ultimately be considered unsafe
  - - - If—
        
        A mandatory sentence requirement applies in relation to the offence (see section 399) by virtue of a provision
      - The offender is aged 18 or over when convicted,
        
        the mandatory sentence requirement does not prevent the court, after taking into account any matter from imposing any sentence which is not less than 80 per cent of the sentence which would otherwise be required by that requirement
        
        Victim Personal Statements
        
        In the context of victims who have incurred psychological harm, provide guidance on the relevance of victim personal statements placed before the sentencer on the impact which the offence had on the victim
        
        statements provide real assistance for the court
        
        They provide a practical way of ensuring that the court will consider the evidence of the victim about the personal impact of the offence
        
        The process is not an opportunity for the victim to suggest, or discuss, the type or level of sentence to be imposed
        
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        The distinction is important
        
        The Indication Process
        
        It is anticipated that any sentence indication would normally be sought at the plea and trial preparation hearing, following a written application
        
        A hearing involving an indication of sentence should normally take place in open court with a full recording of the entire proceedings, and both sides represented, in the presence of the accused (one of the exceptions is where an accused is unaware of being terminally ill)
        
        The court is most unlikely to be able to give an indication in complicated or difficult cases unless issues between the prosecution and the defence have been addressed and resolved
        
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        There should be very little need for the court to be involved in the discussions with the advocates, save to seek better information on any troubling aspect of the case
        
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        The fact that notice has been given, and any reference to a request for a sentence indication, or the circumstances in which it was sought, would be inadmissible in any subsequent trial
        
        Reporting restrictions should normally be imposed, to be lifted if and when the accused pleads or is found guilty
        
        Victims must be provided with information which makes it clear that they may make a statement but are under no obligation to do so
        
        A judge must not assume that the absence of a victim personal statement indicates an absence of harm
- - - - The principle of totality comprises two elements:
      - The overall sentence should reflect all of the offending behaviour with reference to overall harm and culpability, together with the aggravating and mitigating factors; and
      - be just and proportionate
      - There are no inflexible rules as to how the sentence should be structured
      - If consecutive, it is usually impossible to arrive at a just and proportionate sentence simply by adding together notional single sentences
      - Ordinarily some downward adjustment is required
        
        If concurrent, it will often be the case that the notional sentence on any single offence will not adequately reflect the overall offending
      - Ordinarily some upward adjustment is required
        
        Mentally Disordered Offenders: Medical Reports
        
        In any case where an offender is, or appears to be, suffering from a mental disorder
        
        Non-custodial Sentences
        
        The powers of magistrates' courts as regards non-custodial sentences, including community orders, are identical to those of the Crown Court
        
        The court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law
        
        The court need not order such a report if, in the circumstances of the case, it is of the opinion that it is unnecessary to do so
        
        A medical report is distinct from a pre-sentence report, the ordering of a medical report does not displace the need to order a pre-sentence report or limit the requirement for a court to take into account all information that is available to it about the circumstances of the offence, including any aggravating or mitigating factors
        
        As to the ordering of a medical report for sentencing purposes see the Sentencing Council's overarching guideline, Sentencing Offenders with Mental Disorders, Developmental Disorders, or Neurological Impairments
        
        Responsibilities of the Defence
        
        The process of seeking a sentence indication should normally be started by the defence
        
        Whether or not such a reminder has been given, the accused's advocate should not seek an indication without signed written authority that the client wishes to seek an indication
        
        The advocate is personally responsible for ensuring that the client fully appreciates that
        
        he or she should not plead guilty unless he or she is guilty,
        
        any sentence indication given by the court remains subject to the entitlement of the A-G (where it arises) to refer an unduly lenient sentence to the Court of Appeal,
        
        any indication given by the court reflects the situation at the time when it is given and if a guilty plea is not tendered in the light of that indication, the indication ceases to have effect,
        
        and any indication which may be given relates only to the matters about which an indication is sought
        
        An indication should not be sought while there is any uncertainty between the prosecution and the defence about an acceptable plea or pleas to the indictment, or the factual basis relating to any plea
        
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        The court should never be invited to indicate levels of sentence which depend on possible different pleas
        
        In the unusual event that the accused is unrepresented, the accused would be entitled to seek a sentence indication of his or her own initiative, but it would be wrong for either the court or prosecuting counsel to take any initiative in this regard that might too readily be interpreted as or subsequently argued to have been improper pressure
        
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- - - - Counsel's Duty to Assist the Court
        
        All counsel appearing in sentence cases must make themselves aware of any legal limitations on the court's sentencing powers and any relevant guidelines as to sentence so as to be in a position to assist the judge if necessary
        
        It was emphasised that there was a positive obligation on counsel, both for the prosecution and the defence, to ensure that no order is made which the court has no power to make
        
        It is of course the duty of a judge to impose a lawful sentence,
        
        But sentencing has become a complex matter and a judge will often not see the papers very long before the hearing and does not have the time for preparation that advocates should enjoy
        
        In these circumstances a judge relies on the advocates to assist him with sentencing
        
        It is unacceptable for advocates not to ascertain and be prepared to assist the judge with the legal restrictions on the sentence that he can impose on their clients
        
        This duty is not restricted to defence advocates
        
        We emphasise the fact that advocates for the prosecution also owe a duty to assist the judge at the stage of sentencing
        
        Duty on the Court to Resolve Necessary Issues
        
        The overriding consideration is that the offender is sentenced on a basis which the judge considers true and proper (Beswick [1996]
        
        It follows that even where a basis of plea is agreed between the parties (or at least not contested by the prosecution),
        
        The judge is entitled to require a Newton hearing if it appears necessary to establish a true and proper basis for sentence
        
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        It is not satisfactory for a prosecuting advocate, having secured a conviction, to sit back and leave sentencing to the defence
        
        Nor can an advocate, when appearing for the prosecution for the purpose of sentence on a plea of guilty, limit the assistance that he provides to the court to the outlining of the facts and details of the defendant's previous convictions
        
        The advocate for the prosecution should always be ready to assist the court by drawing attention to any statutory provisions that govern the court's sentencing powers
        
        It is the duty of the prosecuting advocate to ensure that the judge does not, through inadvertence, impose a sentence that is outside his powers
        
        Detention in a Young Offender Institution
        
        A magistrates' court may impose a sentence of detention in a young offender institution on an offender aged 18 to 20
        
        The court's powers are limited to the same extent as are their powers to imprison offenders who have attained the age of 21
        
        Where the offender is under the age of 18 (at the date of conviction), a youth court may impose a detention and training order, for which the maximum duration is 24 months (12 months' custody and 12 months' supervision in the community)
        
        The advocate for the prosecution should also be in a position to offer to draw the judge's attention to any relevant sentencing guidelines or guideline decisions of this court
        
        Taking Other Offences into Consideration
        
        This is a common practice
        
        It is based upon convention rather than statute or common law
        
        It requires the co-operation of the police, the court and, most importantly, the offender
        
        It operates to the benefit of both the police and the offender
        
        Pronouncement of Sentence
        
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        The police are enabled to clear up numerous offences which might otherwise remain unsolved
        
        The offender is able to 'wipe the slate completely clean' at a minimal cost in terms of increased sentence
- - - - The pre-sentence report requirements apply to a court in relation to forming an opinion
        
        If the offender is aged 18 or over, the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report
        
        Responsibilities of the Court
        
        A court should not give an indication of sentence unless one has been sought by the accused
        
        However, the court remains entitled to exercise the power to indicate that the sentence, or type of sentence, on the accused would be the same whether the case proceeds as a plea of guilty or goes to trial, with a resulting conviction
        
        Where the sentence will vary according to plea, the court should only give an indication as to the sentence following a guilty plea
        
        An indication as to sentence following trial may put undue pressure on the accused to plead
        
        The court is also entitled in an appropriate case to remind the defence advocate that the accused is entitled to seek an advance indication of sentence
        
        Where an indication is sought, the court may refuse altogether to give an indication, or may postpone doing so, with or without giving reasons
        
        The probability is that the judge would explain the reasons for deferral, and further indicate the circumstances in which, and when, he or she would be prepared to respond to a request for a sentence indication
        
        Where the court has it in mind to defer an indication, the probability is that the judge would explain the reasons, and further indicate the circumstances in which, and when, he or she would be prepared to respond to a request for a sentence indication
        
        If the court refuses to give an indication (as opposed to deferring it), it remains open to the defence to make a further request for an indication at a later stage
        
        However, in such circumstances the court should not normally initiate the process, except where appropriate to indicate that the circumstances have changed sufficiently to permit a renewed application for an indication
        
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        Aggregate Prison Terms
        
        Magistrates sentencing an offender 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 a magistrates' court may impose on one occasion for more than one summary offence, which is six months
        
        Where a magistrates' court is sentencing for two or more either way offences, the maximum aggregate term of imprisonment becomes 12 months
        
        Where magistrates have power to deal with an offender for breach of a suspended sentence, they may (if they choose to activate part or all of the suspended term) make it run consecutively to any term of imprisonment they impose for the offences that put the offender in breach
        
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        Once an indication has been given, it is binding and remains binding on the judge who has given it, and it also binds any other judge who becomes responsible for the case
        
        An indication may cease to be binding where guideline authority from the Court of Appeal alters the appropriate sentencing level or where a new definitive sentencing guideline is issued by the Sentencing Council
        
        However, an indication remains binding even where D subsequently absconds and falls to be sentenced also for his failure to attend
        
        If, after a reasonable opportunity to consider his or her position in the light of the indication, the accused does not plead guilty, the indication will cease to have effect
        
        Where appropriate, there must be an agreed, written basis of plea, otherwise the judge should refuse to give an indication
        
        The principal feature of an appropriate indication of sentence is that an advance indication should be sought by the defence, and not promulgated by the judge;
        
        An indication should not be given that a trial would result in a much longer sentence compared to the one offered if the accused pleads guilty
      - If the offender is aged under 18, the court must obtain and consider a pre-sentence report before forming the opinion unless—
        
        there exists a previous pre-sentence report obtained in respect of the offender, and
        
        the court considers—
      - in the circumstances of the case, and
      - having had regard to the information contained in that report or, if there is more than one, the most recent report,
        
        that it is unnecessary to obtain a pre-sentence report
      - Where a court does not obtain and consider a pre-sentence report before forming an opinion in relation to which the pre-sentence report requirements apply, no custodial sentence or community sentence is invalidated by the fact that it did not do so
- - - - General Mitigating Factors
        
        The threshold for imposing discretionary custodial sentence) does not prevent a court, after taking into account such matters, from passing a community sentence even though it is of the opinion that—
        
        Newton Hearings
        
        An accused who pleads guilty but wants to be sentenced on a different basis to the facts put forward by the prosecution must set out that basis in writing (identifying exactly what is in dispute)
        
        The court may invite the parties to make representations about whether the dispute is material to sentence (in the sense that the sentence would differ depending on whether it is based on the prosecution version or the defence version of the facts)
        
        If the court decides that it is a material dispute, the court will invite 'such further representations or evidence as it may require' and then decide the dispute
        
        Where the difference in versions put forward by the parties is significant (in that it would make a difference to the sentence passed)
        
        the court has a choice of hearing further representations or evidence, it is submitted that magistrates should follow the procedure
        
        and (if they are unwilling simply to accept the defence version of events) hear evidence (i.e. hold a Newton hearing) and then make findings of fact and sentence accordingly
        
        Indeed, cases where it is possible to resolve such a factual dispute without hearing evidence are likely to be very rare, since the decision is likely to involve the court assessing the credibility of the evidence adduced by the parties
        
        Where there are co-accused, and one pleads not guilty and the other pleads guilty but on a factual basis that the prosecution do not accept,
        
        the magistrates should 'almost invariably' adopt the procedure applicable in the Crown Court by virtue of Smith namely for the Newton hearing in respect of the person who has pleaded guilty to take place after the conclusion of the trial of the accused who pleaded not guilty
        
        It followed that it would not have been appropriate for the same judge to conduct the Newton hearing of the other accused
        
        the offence, or
        
        the combination of the offence and one or more offences associated with it, was so serious that a community sentence could not normally be justified for the offence
        
        Basis of opinion provision' means any of the following—
        
        (pre-sentence reports and other requirements);
        
        (fixing of fine);
        
        (exercise of power to impose youth rehabilitation order, with or without intensive supervision and surveillance or fostering, and other requirements);
        
        exercise of power to impose community order, and community requirements);
        
        (imposing custodial sentences)
        
        The following factors indicate that it may be appropriate to suspend a custodial sentence:
        
        realistic prospect of rehabilitation in the community,
        
        offender does not present high risk of reoffending,
        
        strong personal mitigation,
        
        and immediate custody will result in significant harmful impact upon others
        
        The court shall not pass
        
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        any particular custodial sentence,
        
        on an offender suffering from a mental disorder, or
        
        as restricting any power (whether under the Mental Health Act 1983 or otherwise) which enables a court to deal with such an offender in the manner it considers to be most appropriate in all the circumstances
        
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    - - The nature of the offence to which the relevant previous conviction relates and its relevance to the current offence, and
- - - - The victim's membership (or presumed membership) of a religious group,
    - - The sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be)
  - - - References to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins;
      - References to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief;
      - 'membership' in relation to a racial or religious group, includes association with members of that group;
        
        'disability' means any physical or mental impairment;
        
        references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment;
        
        'presumed' means presumed by the offender
        
        Requirement to Prove Mitigation
        
        The final stage in the sentencing process before the sentence is pronounced is the presentation of defence mitigation
        
        It provides that before passing sentence the court must give the offender an opportunity to make representations and introduce evidence relevant to sentence and, where the offender is under 18, the court may give parents, guardians or other supporting adults, if present, such an opportunity as well
        
        The plea in mitigation usually consists solely of a speech by defence counsel
        
        As a matter of discretion, counsel may additionally call witnesses to speak to the offender's generally good character or to explain why, in their view, the offender's criminal conduct occurred
        
        If the presence of the aggravating factor was disputed by the defence, a Newton hearing may well be necessary to resolve the matter but, even if this is considered to be unnecessary
        The sentencing court would generally be bound to hold a hearing to determine whether the relevant circumstances existed at the time of the offence so that the required statement in open court that the offence was so aggravated could be made
        
        Responsibilities of the Prosecution
        
        The prosecution is obliged to react to, rather than initiate the process
        
        If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceed to seek an indication
        
        Which the court appears minded to give, prosecuting counsel should remind the court that an indication of sentence should normally not be given until the basis of the plea has been agreed, or the judge has concluded that the case can be properly dealt with without the need for a Newton hearing
        
        If an indication is sought, the prosecution should normally inquire whether the court is in possession of or has had access to all the evidence relied on by the prosecution,
        
        Including any personal impact statement from the victim of the crime, as well as any information of relevant previous convictions recorded against the accused
        
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        draw the judge's attention to any minimum or mandatory statutory sentencing requirements, and, where applicable or where invited to do so
        
        to any definitive sentencing guidelines of the Sentencing Council or any relevant guideline cases, and
        
        where it applies, to remind the judge that the entitlement of the A-G to refer any eventual sentencing decision as unduly lenient is not affected
        
        Where they do take place, the prosecution advocate should if necessary remind the judge of the desirability of an independent record, and should make a full note, recording all decisions and comments. This note should be made available to the prosecuting authority
        
        Where there is a discussion on plea and sentence and the prosecution advocate does not believe that the circumstances are exceptional
        
        The prosecution advocate should remind the judge of the relevant decisions of the Court of Appeal and not take part in any discussion on sentence
        
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        Summary Offences
        
        Restrictions on Magistrates' Courts' Powers of Sentence
        
        The maximum sentence of imprisonment (if any) for a summary offence is six months or that prescribed by the statute creating the offence, whichever is the less
        
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        The maximum fine for a summary offence is whatever the offence-creating provision specifies; fines are usually fixed by reference to a level on the standard scale of fines rather than by reference to a specific sum of money
        
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        When magistrates are dealing with an offender for several summary offences punishable with fines at levels 1 to 4, there is no restriction on the aggregate fine that may be imposed
- - - - In any case where an offender is, or appears to be, suffering from a mental disorder
        
        Factual Basis for Sentence
        
        A considerable body of law has developed dealing with the proper approach to that minority of cases in which there is a dispute about the facts of the offence
        
        Disputes about the Facts Following a Plea of Guilty
        
        Newton Hearings
        
        In Newton Although D pleaded guilty to sexual offences, there was considerable dispute between the prosecution and defence as to whether the sexual acts alleged had been consensual
        
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        The Court of Appeal indicated three ways in which the judge, in a case where there is such a sharp divergence on the facts of the offence, can approach the 'difficult task of sentencing'
        
        It is in certain circumstances possible to obtain the answer to the problem from a jury
        
        For example, when it is a question of whether the conviction should be under section 18 or section 20 of the Offences against the Person Act 1861
        
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        The second method which could be adopted by the judge in these circumstances is himself to hear the evidence on one side and another, and come to his own conclusion, acting so to speak as his own jury on the issue which is the root of the problem
        
        The third possibility in these circumstances is for him to hear no evidence but to listen to the submissions of counsel and then come to a conclusion
        
        But if he does that, ... where there is a substantial conflict between the two sides, he must come down on the side of the defendant
        
        In other words where there has been a substantial conflict, the version of the defendant must so far as possible be accepted
        
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        In the sense that the prosecution version of how the offence was committed differs from that advanced by the defence in mitigation, albeit that the offender is clearly guilty on either version
        
        This will arise in particular where the defence advance a written factual basis of plea which is not accepted by the prosecution or the court
        
        The court may give directions for determining the facts on the basis of which sentence must be passed
        
        Defence Version Manifestly Absurd
        
        The guidance in Newton requires a sentencer either to hear evidence about a significant dispute as to the facts of the offence or to accept the defence version 'so far as possible'
        
        The implication is that the defence account may be so implausible that a judge ought not to be obliged to waste time by hearing evidence before rejecting it
      - The court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law
        
        The court need not order such a report if, in the circumstances of the case, it is of the opinion that it is unnecessary to do so
        
        A medical report is distinct from a pre-sentence report, the ordering of a medical report does not displace the need to order a pre-sentence report or limit the requirement for a court to take into account all information that is available to it about the circumstances of the offence, including any aggravating or mitigating factors
        
        As to the ordering of a medical report for sentencing purposes see the Sentencing Council's overarching guideline, Sentencing Offenders with Mental Disorders, Developmental Disorders, or Neurological Impairments
  - - - must state in open court that the offence is so aggravated
    - - It must be taken to have been committed on the last of those days