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Sentencing In Adult Courts Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

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A more recent version of these Sentencing In Adult Courts notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Criminal Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

SENTENCING Introduction Need to Know Cases

* R v Goodyear;

* R v Newton

"Goodyear" Advanced Indication of Sentence Before/During Trial

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R v Goodyear - Prior to asking for an indication, D must either accept the prosecution facts, or the basis of the plea must be agreed between the parties and no Newton hearing is required. (2) D must give clear instructions to counsel that he an advanced indication of sentence.

When?

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Generally sought at PCMH, but can be sought at any time, even during trial.

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Won't give until issues between the parties ("the basis") have been agreed or resolved by Newton hearing.

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7 days notice should be given of intention to seek indication. Failure to give that notice may lead to reduced discount for plea that eventuated.

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Reference to Sentencing request would be admissible at later trial.

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Reporting Restrictions would normally be imposed, but normally would be lifted once plea entered, or D found guilty.

Procedure

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No prosecution opening, and no mitigation.

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P should merely ensure Judge has all relevant material, VPS, PNC etc.

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Limitations must be spelt out where "Dangerousness" is a possibility.

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Judge may confine himself as he sees fit, even down to plea "there and then" indication.

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If judge realises he was in error, the public interest in appropriate sentence must trump D's disappointment. But revisions to Goodyear indications must be very much the exception, and should result in no prejudice to D other than disappointment.

Uninvited Indications

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This may render pleas entered a nullity. Depends on impact of D after considering advice given to him by his lawyers in light of what Judge had said... Was this an "inappropriate additional pressure" thereby "improperly narrowing his freedom of choice" of plea?

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It is the judge's absolute discretion whether to give an advanced indication. If they choose to do so:

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It must be given in open court with all parties present. Reporting Restrictions should be imposed to prevent a future jury from hearing about D's thinking of pleading guilty;

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The indication is the maximum sentence, so D should not feel under undue pressure to plead guilty.

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The indication is binding for a reasonable time only. The judge can either say so expressly. During this period it is binding on any judge who sentences this D, unless Parliament changes the maximum sentence, or sentencing guidelines.

D may then either:

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Change plea to Guilty;

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Reject the initial indication and proceed with trial.

After reasonable time, if D refuses to change plea, it ceases to have effect on binding judge as to maximum sentence. The principles in R v Goodyear:

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Judge entitled to remind D of entitlement to seek indication of sentence. BUT should only give one on D's request;

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Shouldn't be given on hypothetical facts;

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Once given, the court was bound by it for a "reasonable time";

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No indication should be sought by D's counsel without written and signed authority;

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D's counsel should ensure no D pleads guilty unless he is guilty;

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D should be reminded the sentence may be subject to reference to CoA;

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D should be reminded if no plea follows, then the indication ceases to have effect;

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Indication only binds the parts of the case on which indication is sought!;

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No indication should be sought where no accepted basis for plea (need Newton hrg);

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Basis of plea should be reduced to writing so judge can make up his mind on those facts, signed by D, and by P if accepted;

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Judge should not give indication on what appears to be a plea bargain, nor possible alternative pleas;

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An unrepresented D may be reminded to ask for an indication of sentence, but Judge of P to inform him of that right may appear to be undue pressure;

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P should ensure Judge is in possession of all relevant material, the VPS, and draw to Judge's attention minimum and maximum sentencing guidelines, and that there is a power to refer to CoA for sentence, and MUST NOT indicate that sentence has support/approval of P.

Newton Hearings When is it necessary?

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R v Newton Lord Lane said three ways: a. Obtain answer from jury on different facts, by giving alternative counts; b. Judge can hear evidence himself, and be judge/jury; (This is Newton only!!) c.

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Judge can hear no evidence, but only submissions. But must accept D's version in so far as possible.

Where D pleads G on a basis that will make a material difference to sentence, to determine the factual basis on which it should pass sentence.

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EG: D enters G plea, but doesn't accept facts by P. P says D committed ABH by punching D twice, and kicking him on floor. D says accepts ABH but only hit once...!

When is it NOT necessary to resolve disputes of fact?

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Difference in two versions of events is immaterial to the sentence;

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D's version is "manifestly false" or "wholly implausible"

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Matters which do not contradict P's case, but rather are extraneous mitigation explaining the background of the offence, or circumstances mitigating sentence.

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D puts forward assertions, and can call evidence. P doesn't have to reply. If P disputes, D must evidence his assertions. Court not bound by assertions of D whether or not challenged by P. The burden on mitigation is on D, to the civil standard to prove mitigation points.

Procedure

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If D wishes to advance G plea on a basis, it should be reduced to writing and signed by D. The basis of plea must set out the defendant's factual basis and not their mitigation. The opportunity to express remorse or explain their actions can be advanced in mitigation. It must not contain assertions inconsistent with Guilt. (IE: Guilty of GBH but acted in self-defence), as this is indicating he is guilty of the offence, so he can't state anything inconsistent with that...!

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This should be shown to P for their view. They may:

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*

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Accept the basis of plea. If so, P signs it, and hands it to Court;

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Reject it as inconsistent with evidence. So refuses to sign it, or write on it "Basis Rejected"

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Adopt the position they are unable to agree, or reject the basis as it contains matters outside P's knowledge.

This should be 'handed up' to Court. Whilst court will have regard to P's position, they are not bound by it. It will have two questions:

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Is the basis of plea absurd? If it is, court can reject it out of hand, and proceed to sentence D on P's version of facts. For example, "I accept that I am guilty of assault. I don't accept the Prosecution facts. I punched the complainant twice in the face. I did not kick him. He kicked himself in the ribs."

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If not absurd, Will it make a material difference to sentence if the court sentences on D's version instead of P's version of events? For example, "I accept that I am guilty of assault. I don't accept the Prosecution facts. I punched the complainant once in the face but not twice. I kicked him once in the ribs but not twice"

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If no material difference, Court must sentence on D's version; (In the above example, one punch or two punches, given its only ABH will make little difference to sentence...!)

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If it will make a material difference, it must hold a Newton Hearing. For example, "I accept that I am guilty of assault. I don't accept the Prosecution facts. I punched the complainant twice in the face. I did not kick him as alleged or at all."

Then D is arraigned and pleads G "on a basis" and D's counsel hands up the 'Basis of Plea'

What happens at a Newton Hearing?

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Takes place without a jury; Judge is arbiter of law and fact.

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P makes opening speech, and calls evidence. XX by defence.

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D can give evidence and call witnesses. If D fails to give evidences, inferences may be drawn!!

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P cannot call evidence that D is G of a more serious offence than that he has pleaded G to.

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Normal criminal standards of proof apply. Judge should not ask questions until counsel have closed their case.

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P and D's closing speeches.

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Court must determine whether P have proved their version of events on BARD. If they have, D is sentenced on P's version. If they haven't, D will be sentenced on D's version of events.

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NB: If P's version is accepted, D will lose some credit for his guilty plea!!!

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Can reduce credit from 1/3 (from outset), to 1/4 (or lower!) because D lost Newton hearing. Rationale is D has used up valuable court time.

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There may be "exceptional cases" where D's credit is "wholly dissipated" but judge must give reasons.

How does the Court reach sentence?
(1) To reach sentence, Court must bear in mind the five purposes of sentencing in s142 CJA 2003:

1. the punishment of offenders;

2. the reduction of crime (deterrence); - In R v Stark [2007] Court held custodial sentences around seasoned offenders may make re-offending more likely rather than deter it especially when D is young...!

3. the reform/rehabilitation of offenders;

4. the protection of the public; - This is the paramount consideration where weapons are involved per AG's Ref No 43 of 2009.

5. the making of reparation to victims.

(2) Court must determine CATEGORY having regard to seriousness of offence (s143 CJA 2003) "In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause, or might foreseeably have caused." The court must treat each conviction as an aggravating factor if it can reasonably be so treated having regard to the nature of the offence and time elapsed. It may consider it aggravating if outside UK/EU. Thus, most sentencing guidelines outline: Greater culpability, greater harm; Greater culpability and lesser harm or Greater harm and lesser culpability Lesser culpability and lesser harm. (3) The Court must determine the STARTING POINT and RANGE (4) Dangerousness of Offence

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There are two stages to this enquiry:

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Has D been convicted of a "Specified Offence" (Listed in Sch 15 CJA 2003)?

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If so, is D "Dangerous" as defined in s229 CJA 2003. Whether there is a significant risk of serious harm to members of the public by his commission of further specified offences?

(5) The Court must then consider the aggravating/mitigating factors. (6) Consider discretionary credit for any GUILTY PLEA. This is determined s144 CJA 2003.

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Depends on when plea was entered; and

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1/3 - From the outset (Allocation, or PCMH)

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1/4 - After trial date set;

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1/10 - On day of trial or after trial begins;

The circumstances of entering that plea.

(7) Consider any remorse. (8) Consider the totality principle.

Breach of Sentence

BREACH OF CONDITIONAL DISCHARGE

BREACH OF COMMUNITY ORDER

'Conditions' require you Breach of a community don't commit another order is one of two things: offence during its life... IE: 2

1. Committing another year conditional discharge... offence during its You're only discharged if operation; (same as you don't commit an above applies); offence for the next 2 years,

2. Failing to comply otherwise will be with the components resentenced for the of the order. The original offence, as well as first breach must the new offence. be followed up with a warning from the If D breaches the Probation Service, conditional discharge, then and any further on pleading G or being breach within 12 convicted of the new months will result in offence, Court may reD being ordered to sentence D for the original appear in court on offence, and the sentencing breach proceedings. powers are that of the court which did the original D will have to admit or deny conditional discharge. breach. In (rare) denial, there will be a trial on breach. If proved, or admitted, court may:

1. Amend Order making it more onerous;

2. Fine D up to PS2500;

3. Revoke Order &
Resentence with what court could have originally passed.

4. Do nothing to mark the breach. LASPOA not brough this in force yet!
If the original offence does not allow a custodial sentence, and the court decides that D has wilfully and persistently breached the order, they can imprison D for up to 12m. The court must always have regard to the extent to which D has completed the Order.

BREACH OF SUSPENDED SENTENCE ORDER

This can be breached in one of two ways:

1. Committing a further offence during its operational period;

2. Failing to comply with Requirement under order. Same warnings system applies. BUT the approach of Court is different. The (rebuttable) presumption is that the court will activate the custodial sentence, and send D into custody to serve some or all of his custodial period that had been suspended. It must do this unless it would be unjust to do so. Where it would be unjust, the Court must:

1. Impose a fine of up to PS2500; or

2. Amend the Order to make them more onerous. IE: The Court can't do nothing, as with a Community Order breach.

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