Sentencing In Adult Courts Notes

SENTENCING

Introduction

Need to Know Cases

• R v Goodyear;

• R v Newton

"Goodyear" Advanced Indication of Sentence Before/During Trial

• 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?

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

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

• 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.

• Reference to Sentencing request would be admissible at later trial.

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

Procedure

• No prosecution opening, and no mitigation.

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

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

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

• 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

• 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?

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

• 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;

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

• 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:

• Change plea to Guilty;

• 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:

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

• Shouldn't be given on hypothetical facts;

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

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

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

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

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

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

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

• 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;

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

• 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;

• 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?

• R v Newton Lord Lane said three ways:

  1. Obtain answer from jury on different facts, by giving alternative counts;

  2. Judge can hear evidence himself, and be judge/jury; (This is Newton only!!)

  3. 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.

  • 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?

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

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

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

• 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

• 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...!

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

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

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

  • Adopt...

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