Please enable JavaScript.
Coggle requires JavaScript to display documents.
Custodial Sentences - Coggle Diagram
Custodial Sentences
DEALING WITH SEVERAL OFFENCES Where the offender is being sentences for several offences this approach could lead to a total sentence which is disproportionate to the overall seriousness of the offending behaviour
Nothing shall prevent the court in a case of an offender who is convicted of one or more other offences from mitigating the offenders sentence by applying any rule of law as to the totality of the sentences
Where the court is dealing with an offender for several offences on or more of which is so serious that only custody can be justified but the remainder of which is so serious the court is not stopped from passing a custodial sentence for the lesser offences
However the sentences should normally be ordered to run concurrently with the sentences for the more serious offences and should not increase the length of the overall term
CONCURRENT AND CONSECUTIVE DETERMINATE CUSTODIAL SENTENCES
Where an offender is to be sentenced for more than one offence the court should impose separate sentences for each offence unless one of the offences is to be marked with no separate penalty
Taking the most serious offence as the lead offence which is then increased to reflect all other offending
A number of reasons in which it may be wrong to impose no separate penalty for a lead offence includes:
1) Serious criminal offending when proved should have a sentence attached to it
2) Should an appeal for the conviction for the lead offence succeed and the conviction quashed the offender will never have been sentenced for those offences marked with no separate penalty
The appropriate way to avoid these issues is for the sentencing judge to categorise other offences and to impose a concurrent term designed to reflect the individual count to which it relates
In cases featuring multiple victims where the sentences are not to be structured consecutively the court should make clear the sentence on the lead offence has actually been increased to take amount of the offending against other victims than the victim named in the lead offence
Sentences of imprisonment or detention in a young offender institution may run concurrently or consecutively The court should make it clear which sentence relates to which count and whether the sentence are concurrent or consecutive If it fails to do so it is presumed that the sentences are concurrent Where a court passes a determinate custodial sentence on a person who is already serving one or more such sentences it must make clear whether the fresh sentence is serve concurrently or consecutively to the existing sentence or sentences It is unlawful to pass a sentence partly concurrent with and partly consecutive to another sentence
A sentence imposed by a court normally takes effect from the beginning of the day on which it is imposed unless the court directs other wise
But the power to give such direction is subject to certain statutory exceptions
There is no power to antedate the commencement of a sentence
If a court imposes a determinate custodial sentence they must not direct that the new sentence shall commence on the expiration of any other custodial sentence from which an offender has been released on license whether or not that offender has been recalled from that licence
It is wrong in principle to pass a sentence which is disproportionate to the most recent offence in an attempt to ensure that the offender serves more than the remainder of the licence period of the original offence
AVAILABLE CUSTODIAL SENTENCES
Section 222 of the Sentencing Act 2020
A custodial sentence means a detention and training order
A sentence of detention order
A sentence of detention in a young offender institution
A sentence of custody for life
A sentence of imprisonment
A offender under 21 cannot be committed to prison for not paying a fine
MAXIMUM CUSTODIAL SENTENCES The maximum prison terms for indictable and either way offences are almost always laid down in the statute
Where a person is convicted on indictment of an offence against any enactment punishable with imprisonment but the sentence is not limited to a specified term or life of any enactment the maximum prison sentence available is two years
GUIDANCE ON THE USE OF CONCURRENT SENTENCES
The guideline states that concurrent sentences will ordinarily be concurrent where:
Offences arise out of the same incident or facts or
There is a series of offences of the same or similar kind especially when committed against the same person
Where concurrent sentences are to be passed the lead sentence should be just and proportionate to reflect the overall criminality involved which may take the lead offence outside the category range appropriate for a single offence
TIME REMANDED IN CUSTODY TO COUNT AS TIME SERVED
Section 240 ZA of the Sentencing Act 2020
Where an offender is serving a term of imprisonment in respect of an offence and the offender has been remanded in custody in connection with the offence or a related offence
It is immaterial for that purpose whether for all or part of the period during which the offender was remanded in custody the offender was also remanded in custody in connection with the other offences
A day counts as time served in relation to only one sentence and only once in relation to that sentence
A day is not count as time served as part of any automatic release period served by the offender
The effect of crediting periods of remand in custody automatically so that it is not necessary for sentencers to give any direction that time served on remand in custody should count towards the sentence
The judge has no discretion on that matter
It applies to sentences of imprisonment, detention in a young offender institution, detention and training order, custodial sentences for certain offenders of particular concern and extended sentences of imprisonment or detention
It is permissible to announce the minimum term less than the number of days spent on remand
The minimal term should be announced by the Judge after carrying out an arithmetical calculation
It is important that credit normally full credit for the period spent on remand is addressed when the life sentence minimum term is imposed because there is no administrative procedure by which the credit can later begin
Where the court imposes an immediate custodial sentence and at the same time disqualifies the defendant from driving the court is required to add an extension period to the discretionary period of disqualification or an appropriate fit uplift
BREACH, COMMISSION OF FURTHER OFFENCE AND AMENDMENT
If the responsible officer is of the opinion that the offender has without reasonable excuse breached a community requirement of the suspended sentence
The officer must give a warning describing the circumstances of the failure stating that the failure is unacceptable and informing the offender that if within 12 months any requirement of the order is again breached the offender will be brought back before the court
The responsible officer does not need to give a warning if a previous warning was given in the preceding 12 months or it the matter is referred to an enforcement officer
If there has been a warning and within the 12 months there is a further breach the responsible officer must refer the matter to an enforcement officer
An enforcement officer is then under a duty to consider the case and where appropriate cause an information to be laid before the appropriate court in respect of the breach
POWER AVAILABLE TO DEAL WITH THE BREACH The power of the courts to deal an offender who breach a suspended sentence is: Order the suspended sentence to take effect, Impose a fine of an amount not exceeding £2500,
The facts/ nature of the new offence is the primary consideration and sets out four categories of breach and the approach which may be taken subject to the question whether activation of the sentence in whole or in part would be unjust in all circumstanes
Relevant factors include any strong personal mitigation, whether there is any real prospect of rehabilitation or whether immediate custody will result in significant impact on others
Only new and exceptional factors/circumstances not present at the time of the suspended sentence order was imposed should be taken into account
A part from the most serious cases the court should apply an appropriate reduction to the activated sentence to reflect unpaid work of curfew requirements completed
The court must take into account the extent to which the offender has complied with the suspended sentence order and sets out three categories of breach and the approach which may be taken subject to the question whether activation of the sentence in whole or in part would be unjust in all circumstances
GENERAL MATTERS S230 of the Sentencing Act 2020
The court must not pass a custodial sentence unless it is of the opinion that the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence
Relevant previous convictions should not generally be used as the sole basis to justify the case passing the custody threshold
Even where the custody threshold is crossed a community order should be imposed if it is more appropriate AND
Custody is generally avoided for pregnant or postnatal offenders if it would disproportionately harm them or there dependants or an unborn child
It does not apply if the offence is one to which a mandatory sentence requirement applies
The court must take into account all the information that is available to it about the circumstances of the offence or of it and the associated offence or offences including any aggravating or mitigating factors
The pre sentence report requirements apply to the court in relation to forming that opinion
A pre sentence report may be unnecessary if the court considers that is has enough information about the offence and the offender
TWO OR MORE OFFENCES Section 400 of the Sentencing Act 2020
Where the offender stands convicted of two or more offences the court in deciding whether custody is justified must consider the seriousness of the sum of the offences provided that these are associated with one another
GUIDANCE ON THE USE OF CONSECUTIVE SENTENCES
The guideline states that consecutive sentences will ordinarily be appropriate where:
Offences arise out of unrelated facts or incidents
Offences committed in the in the same incident are distinct involving an aggravating element that requires separate recognition
Offences are of the same or similar kind but the overall criminality will not sufficiently be reflected by concurrent sentences
One or more offence(s) qualifies for statutory minimum sentence and concurrent sentences would improperly undermine that minimum
It is not permissible to impose consecutive sentences for offences committed at the same time in order to evade the statutory maximum penalty Totality sets out the proper approach for sentencing, distinguishing between the cases where the new offence was committed before the original sentence was imposed and committed after the original sentence was imposed
DETENTION IN A YOUNG OFFENDER INSTITUTION Power to Order Detention
S262 of the Sentencing Act 2020
A sentence of detention in a young institution is available to a court dealing with an offender for an offence where the offender is aged at least 18 but under 21 is convicted
The offence is punishable by that court with imprisonment in the case of a person aged 21 or over and
The court is not required to pass a sentence of detention during or custody for life
Where a sentence of detention in a young offender institution is available and the court is not required to impose such a sentence, the power of court to impose such a sentence
Section 263 of the Sentencing Act 2020 The maximum term of detention in a young offender institution that court may impose for an offence is the same as the maximum term of imprisonment that it may impose for the offence in the case of a person aged 21 or over
The minimum term of a sentence of detention in a young offender institution is 21 days
RELEVANCE OF PRISON CONDITIONS There is a very high prison population such that some male prisoners on remand or serving custodial sentences were being held in police cells with no access to rehabilitative programmes
This factor is one of the reasons why suspending sentences was introduced
A judge must sentence according to the ordinary principles of sentencing and assume that a prison place will be available for the offender
The standard of prison provided is not save in exceptional circumstances an issue for the sentencing judge
If a prison does not meet appropriate standards then a prisoner mat have a public law remedy against the state
The overcrowding of the prison system is a matter of grave concern and that all courts should heed to that message which is that imprisonment only when necessary and for no longer than necessary
Women held in custody may often be long distanced from their families which can add to the adverse consequences for them and their children
The fact that a prisoner will be required to serve the sentence in isolation for the prisoners own protection is not normally relevant in considering when passing a sentence
CONSECUTIVE TERMS Where two or more sentences are imposed on the same occasion they are to be served consecutively the power to suspend sentence is not exercisable in relation to any of the sentences unless the aggregate of the terms does not exceed two years
COMBINING WITH OTHER SENTENCES OR ORDERS An immediate prison sentence and a suspended sentence should not be imposed on the same occasion nor should a suspended sentence be imposed on an offender currently serving a term of imprisonment
If a suspended sentence is passed the court must not on that same occasion impose a community order in respect of that offence or any other offence for which the offender is dealt with by the court
A suspended sentence cannot be combined with a discharge when sentencing for a single offence
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
IMPOSITION OF REQUIREMENTS It is lawful to impose a suspended sentence without including a community requirement
Where the Crown Court makes a suspended sentence order which imposes any community requirement it may direct that the order is to be subject to the magistrates court supervision
Every suspended sentence imposes a duty upon the offender to keep in touch with the responsible officer
The responsible officer may give instructions to attend one or more appointments for the purposes of rehabilitation of the offender or the protection of the public and that the offender must comply
An electronic compliance monitoring requirement is not available unless the community order imposes as least requirement other than an alcohol abstinence and monitoring requirement or as electronic whereabouts monitoring requirement
Wherever the court passes a suspended sentence 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 to insert such requirements is made subject to the court ensuring so far as possible that they avoid any conflict with the offenders religious beliefs or with the requirements of any other relevant order to which the offender may be subject and avoid interference with the times if any at which the offender normally works or attends school or any other educational establishment
A suspended sentence must specify the local justice area in which the offender will reside
LENGHT OF SENTENCE Section 231 of the Sentencing Act 2020
The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is equivalent with the seriousness of the offence or the combination of the offence and one or more offences associated with it
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 the shortest term equivalent with the seriousness of the offence:
The court should not take into account the license or post sentence requirements which may be imposed upon the offenders release or any administrative or statutory consequences of the sentence
Sentences up to 12 months are less effective than other disposals at reducing reoffending AND
Community orders should be imposed where appropriate but in some cases a short custodial sentence will be unavoidable
It applies to the extended sentence and the special custodial sentence for offenders of a particular concern as well as to determinate sentences
It applies however to grave offending
It does not apply where the offence is fixed by law such a murder
POWER TO IMPOSE A SUSPENDED SENTENCES The power to impose a suspended sentence applies to sentences of imprisonment and to sentences of detention in a young offender institution
The suspended sentence is available where the court imposes a determinate custodial sentence of not more than than two years
Sentences less than 14 days imprisonment cannot be suspended
For the sentence of detention in a young offender institution sentences less than 21 days cannot be suspended as 21 days is the minimum sentence
Detention and training orders cannot be suspended
A suspended sentence cannot be ordered unless all the statutory provisions as to the imposition of a sentence of immediate imprisonment have been observed
Before a suspended sentence can be passed the court must take into account the relevant provisions which must be complied with before any custodial sentence is passed
The power to impose a suspended sentence in a magistrates court is limited in the same way in which magistrates powers are limited to impose prison sentences
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
If a custodial sentence is suspended it should be for the same term that would have applied if the sentence was to be served immediately
Up to 12 months might be appropriate for a suspended sentence
MANDATORY LIFE SENTENCES An offender aged 21 and over who is convicted of murder must be sentenced to life imprisonment
For an offender under 21 on the date of conviction the sentence is custody for life
If the offender is under the age of 18 when the offence was committed irrespective of the age on the date of conviction the sentence is one of detention as His Majesty's pleasure
MURDER: LIFE IMPRISONMENT If the court considers appropriate they need to take into account the seriousness of the offence or the combination of the offence and any one or more offences associated with it and the effect that the following provisions would have it if the court had sentenced the offender to a term of imprisonment
If the offender was aged 21 or over when the offence was committed the court may however because of the seriousness of the offence or the combination of the offence and one of or more offences associated with it order that an early release provisions are not to apply
If the offender was aged 18-20 when the offence was committed the court may impose a whole life minimum term order but only if the court considers that the seriousness of the offences associated with it is exceptionally high even by the standard of offences which would normally result in a whole life order
- 1 more item...
LIMITS ON IMPRISONMENT: MAGISTRATES COURTS AND THE CROWN COURT WHEN LIMITED TO MAGISTRATES COURT POWER
The minimum sentence a magistrates court can impose is is five days and the maximum sentence is six months in respect of any summary only offences unless a shorter term is specified by statute
For offenders aged 18 to 20 the minimum sentence way be imposed is 21 days
For triable either way offences the Secretary of State has the power to vary the applicable time limit in a magistrates court from six months to 12 months
Care must be taken when sentencing in the Crown Court in the situation where either way offences have resulted in acquittal or have not been proceeded with and the defendant falls to be sentenced only for one or more summary offences such as common assault or criminal damage below £5000
The crown court is limited to a maximum of six months for common assault
For the criminal damaged the crown court is limited to three months imprisonment
A magistrates court having power to imprison a person may instead order detention within the precincts of the court house or at any police station until such hour no later than 20pm on the day on which the order was 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
AUTOMATIC RELEASE AFTER SERVING 40 0R 50 PER CENT OF THE SENTENCE
Normally in the case of determinate sentences of imprisonment, detention of young offender institution or detention there is a duty on the Secretary of State to release the offender on licence once the offender has served one half of the sentence
Eligible prisoners are released after serving 40 per cent of the sentence as opposed to one half
The order will be reviewed after 18 months
Offences that are excluded are:
Sentences of four years or more offences
Inchoate offences
Once released, the license remains in force until the expiry of the sentence
An offender who has been released on licence may have the licence revoked and may be required to return to custody to continue serving the sentence
If the Secretary of State believes on reasonable grounds that the offender if release would pose significant risk to members of the public of serious harm occasioned by the commission of murder, or specified offences to refer the offender probably back to custody
CREDITING PERIODS OF BAIL SPENT SUBJECT TO A QUALIFYING CURFEW
Where an offender has been remanded on bail and that bail was subject both to a qualifying curfew condition requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day and an electronic monitoring is imposed
The court must normally direct that the credit period is to count as time served by the offender as part of the sentence
It is the responsibility of the court to make this direction unlike the adjustment for time spent on remand in custody and does not require an order from the court
Where an qualifying curfew has been ordered by the court credit should be given for it even when the electronic tag has an error or not been fitted
If there is evidence that the offender has been in breach of curfew conditions, the monitoring equipment has not been installed and the number of qualifying days is in dispute the prosecution must prove its case on the issue to the criminal standard
If the resolution of a dispute would amount to the disproportionate use of time and expense then the dispute should be resolved in the offenders favour and no deduction made
The credit period is calculated by taking the following five steps:
1) To add the day on which the offenders bail was first subject to the relevant conditions
The number of other days on which the offenders bail was subject to these conditions but exclude the last of those days if the offenders spends the last part of it in custody
2) Deduct the number of days on which the offender while on bail subject to the relevant conditions was also subject to any requirements subjecting to electronic monitoring of the offenders compliance with the curfew requirement or a temporary release
3) Is to Deduct from the remainder of the number of days during the remainder which the offender has broken either or both of the conditions
4) Is to divide the result by 2
5) If necessary round it up to the nearest or whole number
The court must direct that the credit period is to count as time served
A day of the credit period counts as time served in relation to only one sentence and only once in relation to that sentence
The credit period does not count as time served as part of any automatic release period served by the offender
The sentencer should state in open court the number of days on which the offender is subject to the conditions and the number of days in which the court deducted
Where the court passes a sentence of imprisonment or detention in a young offender institution or activates a suspended sentence order, determinate sentence of detention or a detention training order
A suspended sentence counts for these purposes when it is activated in consequence of the breach