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BPTC Law Notes BPTC Criminal Litigation Notes

Sentencing Notes

Updated Sentencing Notes

BPTC Criminal Litigation Notes

BPTC Criminal Litigation

Approximately 1169 pages

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Sentencing

What are the main objectives of sentencing?

When Sentencing adults:

  • Punish offenders

  • Reduce crime by deterrence

  • Reform and rehabilitate offenders

  • Protect the public

  • Provide reparation to victims

When sentencing youths:

  • The principal aim is to prevent reoffending

  • The welfare of youth-D

What are the general factors that affect the seriousness of the offence?

The offender’s culpability is a key factor when sentencing, and this is affected by a number of factors:

  1. Committing offence while on bail;

  2. Failure to respond to previous sentences;

  3. Offence was racially or religiously aggravated;

  4. Offence motivated by sexual orientation of the victim;

  5. Previous convictions, particularly a pattern of re-offending;

  6. Planning the offence;

  7. An intention to commit more serious harm than actually resulted;

  8. Offenders operating in groups or gangs;

  9. ‘Professional’ offending;

  10. Commission of the offence for financial gain;

  11. High level of profit from the offence;

  12. An attempt to conceal or dispose of evidence;

  13. Offence committed while on licence;

  14. Deliberately targeting vulnerable victims;

  15. Use of a weapon to frighten or injure victim;

  16. Deliberate and gratuitous violence or damage to property, over and above that required for the commission of the crime;

  17. Abuse of power; and

  18. Abuse of trust.

What are the common mitigating factors?
  • Greater degree of provocation than normal

  • D suffers from mental illness or disability

  • D’s young age

  • Minor role of D

  • No planning

  • Prompt surrender

  • Offence caused little damage

  • Property restored to owner

  • No injury or less significant injury in the context of the offence.

What level of discount with a defendant get if they plead guilty?

Max. 1/3 off sentence if pleaded at first reasonable opportunity.

Max. 1/4 off sentence if pleaded after trial date is set.

Max. 1/10 off sentence if pleaded at ‘door of court’ or after trial has begun.

[Adult] Magistrates’ Court Non-custodial Sentencing

What are the options for a magistrate when sentencing?

Absolute discharge - Mags’ deem it inappropriate to impose punishment

Conditional discharge - Defendant (‘D’) is discharged on condition that he doesn't commit any further offences within a specific period (up to 3yrs). Any breach of the conditional discharge MAY result in D be re-sentenced for the offence.

Fine - The maximum fine per offence is 5,000, and this is for an either-way offence.

Community sentences - This is a ‘pick and mix’ menu for the court, with option including (UP SPACE DRAMA)

  1. Unpaid work requirement - between 40-300hrs, usually over the period of 12months;

  2. Programme requirement;

  3. Supervision requirement - must attend appointments with an assigned probation officer;

  4. Prohibited activity requirement;

  5. Activity requirement - the aggregate number of days must not exceed 60;

  6. Curfew requirement* - requires D staying in a specific place for a specific amount of time; can only be 6months long;

  7. Exclusion requirement* - cannot be more than 2yrs;

  8. Drug rehabilitation requirement;

  9. Residence requirement;

  10. Alcohol treatment requirement;

  11. Mental health treatment requirement;

[where D is under 25] an attendance centre requirement

Curfew: *This will often be attached to an electronic monitoring requirement.

Before ordering 2 or more requirements the court must assess whether they are compatible with each other. The court must also consider any conflict with D’s religious beliefs or any interference with work or education.

The threshold for a community order whether the offence ‘is serious enough to justify a community order’. In addition, a community order can only be made if the offence is punishable by imprisonment .

Persistent offender: where D has been fined 3 or more times on previous occasions a community order may be given even if offence doesn't cross the threshold.

The maximum duration for a community order is 3yrs.

What are the consequences of breaching a community order?

Any breach without reasonable excuse will result in the offender being given a warning.

If breach particularly serious send it straight back to court.

Any further breach within 12months of a previous breach, officer MUST send D back to court to be dealt with.

Breach must be proved beyond reasonable doubt. Then the court must either:

  1. Amend the order to impose more onerous requirements;

  2. Revoke the order and pass no new sentence;

  3. Revoke the order and re-sentence in any way that it could have resentence the original offence;

  4. Impose a sentence of imprisonment of 6 months , but ONLY where D is over 18 + initial offences was NOT punishable with imprisonment + D has wilfully and persistently failed to comply.

What happens if D commits a further offence while serving his community order? The court can, if in interests of justice, revoke the order, or revoke it and re-sentence for the same offence, or deal with D in any way in which D could have originally been sentenced.

[Adult] Mags’ Powers for Custodial Sentences

What is the maximum custodial sentence available to the Mags’?

Summary offences: 6months, or that prescribed by the statute, whichever is less!

An either way offence: 6months, or that prescribed by the statute, whichever is less!

Two or more either-way offence: Max aggregate of 12months.

If fines, 5,000 per offence of max of 25,000 for five offences.

Threshold: Offence/s so serious that neither a fine alone nor a community order can be justified for the offence.

Factors considered when deciding if threshold has been crossed:

  • An admission of guilt;

  • Offence fuelled by addiction to alcohol or drugs;

  • Youth or immaturity;

  • Character (whether D is of good character or has previous antecedents); and

  • Only if custody is necessary!

If fine in Mags, MAY impose sentence in default in certain circumstances.

If fine in CC, MUST impose sentence in default.

What is a suspended sentence?

Any sentence up to 6months may be suspended for a period of time. This time is divided into two parts:

  1. Supervision period - D has to comply with community...

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