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Sentencing Principles Notes

BPTC Law Notes > BPTC Criminal Litigation Notes

Updates Available  

A more recent version of these Sentencing Principles 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 PRINCIPLES PURPOSES OF SENTENCING

o for offenders 18+
(a) (b) (c) (d) (e)

punishment of offenders reduction of crime (including by deterrence) reform and rehab of offenders public protection offender reparation to those affected (CJA 2003 s142(1))

o for offenders under 18 (a) prevent offending (b) have regard to welfare of child / young person SENTENCING GUIDELINES AND ROLE OF SENTENCING COUNCIL

? CAJA 2009 created the Sentencing Council (SC), abolishing Sentencing Guidelines Council (SGC), BUT guidelines issued by SGC treated as if issued by SC

? two types of guidelines: (a) definitive SC guidelines - should specify offence range + (if different offence categories exist) category range within it + starting point (s121 CAJA 2009)

(b) definitive CA guidelines - authoritative but NOT strictly binding
? duty to follow SC guidelines o court must follow relevant sentencing guidelines, unless contrary to interests of justice (s125 CAJA 2009)interests of justiceincludes CA case law + definitive CA guidelinesBUT cannot depart from SC guidelines if just think out of touch / earlier authority preferable

o must impose sentence within offence range subject toreduction for G plea, assistance + any rule as to totality of sentences;
+statutory specific sentences

o should decide which category most resembles offender's case to determine starting point, unless no category sufficiently resemblesneed NOT impose sentence within category range

APPROACH TO SENTENCING AND KEY PRINCIPLES

(1) OFFENCE CATEGORY o purposedetermine:seriousness (= culpability + harm)which sentencing threshold crossed + whether custodial /
community / other sentence appropriate + length of custodial

sentence / onerousness of community requirements / amount of fine

o seriousnessculpability4 levels

i. ii. iii.

intention (highest = planned) recklessness (appreciates some harm but proceeds giving no thought to consequences, though risk obvious) knowledge of risks (though no intention to cause resulting harm)

iv.negligence

harm (actual, intended or foreseeable)

i. to individual (depends on impact on particular person)

ii. iii.

to community other e.g. animal cruelty causing indirect harm to humanprevalence (how common crime is)general rule: should not affect seriousnessexception: local circumstances causing harm to community +
supporting evidence from external source

o the sentencing thresholdsthe custody thresholdcourt must NOT pass unless offence(s) so serious that neither fine / community sentence can be justified (152(2) CJA 2003)passing test does NOT mean custodial sentence inevitableapproach

i. ii. iii. iv. v.custody threshold passed?
if so, custodial sentence avoidable?
if so, can it be suspended?
if not, can it be served intermittently if not, impose immediate custodial sentence

length of custodial sentence

o shortest term commensurate with seriousness of offencethreshold for community sentencescourt must NOT pass unless

i. offence(s) serious enough to warrant (CJA s148(1)); OR

ii. offence NOT serious enough BUT offender 16+
fined on 3+ occasions + in interests of justiceNOT inevitable if threshold passed - court should consider all options

(2) METHOD (2 stages) (a) STAGE 1: ID starting point + category rangestarting point = based on first time offender pleading NG
+ applies irrespective of plea / pre-cons (considered at stage 2)ask: which e.g. does offence most closely resemble?

(b) STAGE 2: aggravating + mitigating factors = statutory ? court must treat as aggravating factor if presentaggravating

? higher culpability i. vulnerable V ii. deliberately causing more harm than necessary for commission of offence

iii. pre cons iv. offence committed on bail v. offence committed on licence (following release from custodial sentence)

vi. racial / religious aggravation /
offences with terrorist connection

vii. related to disability, sexual orientation, transgender identity

viii. failure to respond to noncustodial sentences

ix. planning x. intention to commit more harm than results

xi. gangs xii. commission of offence for financial gain / high profit / 'professional offending'

xiii. attempting to conceal evidence

xiv. drink / drugs xv. use of weapon xvi. abuse of trust / power xvii. use of child to assist / child complicit

? greater harm i. multiple Vs

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