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Sentences Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

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SENTENCES Non-Custodial Sentences Sentence

Conditions to Impose

Absolute Discharge

Court decides it is inappropriate to inflict any punishment.

Breach/Further Points

Generally where the circumstances of the offence disclose little blame on the part of the offender. Conditional Discharge Defendant is discharged on the condition that he does not commit any further offences for a specified period (up to 3 years)

If court decides inappropriate to inflict punishment.

If commits an offence, can be sentenced for the original offence (as if just convicted (different to suspended sentence)) plus the additional offence. Magistrates Court - can resentence on CD by another Magistrates Court with their permission
- cannot resentence on CD by Crown Court Crown Court - can resentence on CD by Magistrates Court with their sentencing powers
- can resentence on Crown Court CD

Fine Summary offences: Fines expressed in terms of a standard scale containing 5 levels - s37(2) CJA'82:
* 1: PS200
* 2: PS500
* 3: PS1000
* 4: PS2,500
* 5: PS5,000

Fixing the Amount Procedure:

1. Court decides what fine is appropriate in light of the seriousness of the offence

2. Court considers whether to reduce on the basis of any mitigating factors

* Guilty plea - reduction

* If Defendant has spent time in custody, fine reduced to reflect this

3. Court takes account of Defendant's financial circumstance
- Can make a "financial circumstances order" against Defendant, requiring him to provide a statement of means within a time specified in the order.

Either-way offences: Maximum PS5000

If Defendant does not have the means to pay a fine immediately, Magistrates may order payment by instalments - Defendant should be able to pay off total fine within 12 months.

("statutory maximum") unless statute creating the offence prescribes a larger maximum Limits apply to each individual offence Crown Court Fine - must impose sentence of imprisonment in default
PS1m - max 10 years Magistrates Court only fix default term if not giving time to pay

Time for Payment Court usually under duty to give Defendant time to pay fine, otherwise has discretion.

* Magistrates Court: payable immediately, unless periodic payments (1yr - max 3 yrs)

* If Crown Court grants time to payment - enforcement is Magistrates Court's responsibility (Magistrates Court named in fine order or Magistrates Court where Defendant sent/committed)

* If Defendant needs more time - apply to enforcement court Non-Payment First - enforcement Court summons Defendant to appear for a means inquiry and produce statement of means After enquiry - Magistrates Court may:

* remit all/part of fine if changes in circumstances make it just to do so (if Crown Court fine
- need permission), or

* issue warrant of commitment if:
* Defendant serving a custodial sentence, or
* means inquiry + Court satisfied default due to wilful refusal or culpable neglect
* means inquiry + Court considered/tried all other methods of enforcing payment - inapt or unsuccesful Sentences Defendant to imprisonment forthwith for default fixed term (Crown Court) / term up to max in Sch.4 MCA for size of fine
- reduce period proportionately to any payments made. Before Commitment to Prison - Magistrates must consider alternative means of payment:

* Impose payment supervision order,

* If Defendant under-25 - impose attendance centre order,

* Request Dept of Work and Pensions to make payments direct from Defendant's benefits,

* Make Attachment to earnings order - employer pays sums direct

* Issue Distress Warrant - bailiffs seize Defendant's belongings

* Issue warrant of overnight detention

Community Order Community sentence can only be imposed if: Defendant has a duty to keep in touch with his

* Offence is punishable by imprisonment, or assigned probation officer in accordance with

* Defendant has previously been fined 3+ times

instructions as given by that officer, and to notify him of any change of address.

May impose CO for offence past custody threshold if sufficient mitigation Must obtain PSR unless "unnecessary"

Objectives of Community Orders 1) Restrictions on Defendant's liberty must be commensurate with the seriousness of the offence 2) Sentence (reqs) must be suitable for Defendant

Threshold (s148(1) CJA'03) must be crossed. "A court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence." or persistent petty offender (discretion)

Before making CO imposing 2+ requirements, must consider whether they are compatible with each other in the circumstances of the case

Length and Requirements must be commensurate with seriousness of offence and suitable for Defendant.

Credit for Time Spent on Remand When determining requirements, Court should seek to give credit for time spent on remand - therefore Defendant may receive a more lenient community order due to this. CO Requirements - need Defendant's consent

* When announcing sentence, court should make clear whether any credit has been given

* Mental health requirement for time spent on remand, if not it should explain its reasons - ie. not justified, not practical or not in the best interests of Defendant.

* Drug rehab requirement

* Alcohol treatment requirement Crown Court Community Sentence If CO includes requirement that breach be dealt with by Magistrates Court - go to Magistrates Court Otherwise - go to Crown Court Breach First breach "without reasonable excuse" - Warning by responsible officer Second breach within 12 months of warning - Officer lays an info before court, Court can issue summons or warrant for Defendant's arrest If Magistrates Court - options:

1. Amend order to impose more onerous conditions,

2. Revoke order - deal with Defendant as if just convicted

3. If original offence non-imprisonable - revoke order, impose custody max 51 weeks

4. If original order by Crown Court - may commit to Crown Court for sentence If Crown Court - options:

1. Amend order to impose more onerous conditions,

2. Revoke order - deal with Defendant as if just convicted

3. If original offence non-imprisonable - revoke order, impose custody max 51 weeks Must give credit for any compliance with CO Custody should be the last resort, reserved for those cases of deliberate and repeated breach where all reasonable efforts to ensure that the offender complies have failed. If new or original offence trial by Crown Court - Magistrates Court may commit Defendant to Crown Court for both offences. Surcharge When a court is sentencing Defendant for 1+
offences it may also require him to pay a "surcharge" unless court considers a compensation order would be more appropriate but Defendant has insufficient means to pay both (in which case the surcharge will be reduced accordingly)

Duty to order Defendant to pay a surcharge only applies where he is ordered to pay a fine (whether or not another penalty is also imposed)

Surcharge amount is PS15 Money raised by surcharges is spent on range of services for victims of crime and witnesses. Compensation Order Court may make compensation order instead of/in addition to dealing with Defendant in any other way.

Amount is whatever the court considers appropriate having regard to the evidence and any representations made by the prosecution or the defence

Requires Defendant to pay compensation for PI, loss or damage resulting from the offence (which he was convicted of or was taken into consideration (TIC))

Court must give reasons where it does not make a compensation order in a case where it is empowered to do so Where Defendant has insufficient means to pay fine and compensation order - prefer compensation order

Max: PS500 per offence

Forfeiture/Deprivation Order

Court must consider the value of the property

Court may make a deprivation order in respect and likely financial effect on Defendant of the of any property which has been lawfully seized order. from Defendant, or which was in his possession at the time of apprehension for the offence, and which has been used/was intended by Defendant to be used for the purpose of committing (or facilitating) the commission of any offence. Endorsement of Licence Sch.1 RTA 1988 - Number of points to be endorsed on Defendant's licence in the event of conviction of a road traffic offence Disqualification

Mandatory Disqualification Must disqualify for minimum 12 months unless "special reasons" - must be connected with the commission of the offence itself

Reduced Totting Up Disqualification In deciding whether to exercise discretion not to order disqualification at all/for full period required, court cannot consider:

* any circumstances alleged to make Discretionary Disqualification current or past offences not serious, Reserve for bad driving, persistent motoring

* hardship (other than exceptional offences or use of vehicle for purpose of crime hardship)

* any circumstances taken into account in Totting Up Disqualification past three years in ordering lesser Defendant has 12+ points (inc.current offence) period of disqualification
- first-time: 6 months disqualification
- second-time: 12 months disqualification
- third+ time: 2 years disqualification Disqualification for Non-Driving Offences Not necessary offence connected to use of a car But must be sufficient reason for the disqualification

Bind Over Magistrates Court can bind Defendant over "to be of good behaviour and to keep the peace".

Only warranted where there is evidence of likely personal danger to others (involving violence/threat of violence)

Effect: Defendant promises to pay a specified sum in the event of misbehaving during specified period. Court must fix specified period and amount to be forfeited if breached. Sex Offenders Register Ds convicted of specified sexual offences (listed in Sch.3) to notify certain personal details to the police - "putting on the sex offenders register"

Defendant convicted of specified sexual offence

Confiscation of Proceeds of Crime

Where Defendant being sentenced in Crown Court Court may, at request of P or of its own motion, proceed to decide whether:

* Defendant has a criminal lifestyle and

* he has benefited from "particular criminal conduct"(offences he has been convicted of) "criminal lifestyle" 3 ways:

1. Convicted offence specified in Sch.2 PCA

2. Convicted offence constitutes "conduct forming part of a course of criminal activity":
# Defendant convicted of 3+ offences and has benefited from them, or
# Defendant has 2+ criminal convictions in past 6 years which he has benefited from

3. Present offence committed over a period of at least 6 months and Defendant has benefited from it Offence is disregarded unless Defendant has benefited PS5000+ from it. Defendant benefited from it Q1: What is the value of the benefit - "recoverable amount"?
must assume:

* Property gained in last 6 years - was due to criminal conduct

* Property held by Defendant currently - obtained by criminal conduct

* Expenditure in last 6 years - paid for by assets obtained by criminal conduct

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