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Sentencing Principles Notes

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This is an extract of our Sentencing Principles document, which we sell as part of our BPTC Criminal Litigation Notes collection written by the top tier of City Law School students.

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Sentencing Principles

-NB, after someone has been convicted or pleaded guilty ? they are called an
'offender', rather than an accused or defendant.

When will D be sentenced??

A D charged with a single offence:
o Will either be sentenced immediately after (1) they plead guilty OR (2) a guilty verdict is returned (by magistrates or jury).
o OR, the court can adjourn sentencing for any of the following reasons:
a) The court has insufficient time to deal with sentence immediately;
b) The court requires further information in order to sentence D;
c) The court orders that a PSR be prepared by the Probation Service;
d) One or both of the parties wishes to place further information before the court prior to sentence, and the court consents to an adjournment.
o Starting point ? court expects parties to be able to deal with sentence immediately following a guilty plea or guilty verdict: an application to adjourn or for PST will not be automatically granted, is at discretion of court.
o With PSRs in particular, court will want a justification as to why time and resources should be used to prepare a PSR.
o Court expects counsel to be able to deal with any matters upon which they can properly take instructions, such as the D's personal background.
o Reports are thus usually constrained to circumstances in which the court needs specific information from the Probation Service such as the suitability for a particular form of sentence that involves their services, or the assessment of dangerousness.
Magistrates court, adjournments prior to sentence ? s10 MCA
o S10 MCA: m' court may adjourn after conviction before sentencing; for purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case.
o If an M' Court decides to adjourn sentence ? statute binds how long the adjournment can be. Maximum adjournment before sentence:
a) If D is on bail ? max 4 WEEKS at a time.
b) If D is remanded in custody ? max 3 WEEKS at a time.
o HOWEVER: nothing to prevent the court from adjourning sentence more than once; and post-conviction, there is no issue re custody time limits.
o [CF: 'defer' sentence below, for up to 6 months, if offender consents, to allow court to have regard to D's conduct after conviction and any change in his circumstances.
o A common reason for adjourning -> to prepare a PSR, especially if court considering a custodial sentence or community order.
o Where an offender is granted bail for a post-conviction adjournment : court may impose a condition that he make himself available for purpose of enabling inquiries or a report to be made, to assist the court in sentencing;
PROVIDED that it appears necessary for those purposes. ?A D charged with multiple offences

If a D is charged with multiple offences & pleads guilty to some but not all and there is to be trial on the remainder ? court must decide whether to immediately sentence on the matters pleaded guilty to; or adjourn these matters until conclusion of the trial of the other matters.
o Usually, sentence is adjourned until conclusion of the trial, so that the court can consider all the pleas & verdicts together. However, is at discretion of court.
Multiple Defendants:
o Where the pleas are mixed and there needs to be a trial, court will likely wait until conclusion of it to sentence any Ds who have pleaded guilty or been found guilty.

Where will D be sentenced?????

D pleads guilty to a summary only offence in M' court ? can only be sentenced in m'
court.
D pleads not guilty to a summary only offence in m' court; has a trial in m' court;
found guilty ? can only be sentenced in m' court.
D pleads guilty to an either-way offence in m' court: ? sentenced in m' court but can be committed for sentence to Crown Court.
D pleads not guilty to an either-way offence in m' court; is tried in m' court; found guilty ? sentenced in m' court but can be committed for sentence to Crown Court.
D pleads not guilty to either-way offence in m' court; case sent for trial in Crown
Court (m' court declines jurisdiction or D elects crown court) ? D must be sentenced in Crown Court (cannot be sent back to m' court for sentence).
D charged with indicatable only offence, sent to Crown Court, pleads guilty at PTPH
Crown court: ? D must be sentenced by Crown Court.
D charged with indictable only offence, sent to Crown Court; plead not guilty; found guilty ? D must be sentenced in Crown Court.
SOOO:
o summary only offences always sentenced in m' court;
o indictable only offences always sentenced in Crown Court;
o for either-way:
-sentence will be in Crown Court if they have trial in Crown Court
-If they plead not guilty in m' court, and are sent to Crown Court (and then tried in Crown Court, or subsequently pleads guilty in Crown
Court) ? sentenced in Crown court (once has gone to Crown court,
cannot be sent back to m' court for sentence).
-If they plead guilty, or found guilty after trial, in m' court ?
sentencing in m' court OR committal for sentence.

Committal for sentenceFor either-way offences, where D pleads guilty in m' court or is tried in m' court and found guilty ? can be sentenced in m' court or committed for sentence ??

Committal if: (1) If magistrates decide sentencing powers insufficient, or (2) the either-way matter is linked to another charge, or (3) there is another reason for sending D to Crown Court.
So note the sentencing restrictions in m' court: 6 months imprisonment; 12 months if aggregate for 2+ either-way offense.
S4 is when you send an offence for sentencing along with another offence being sent for TRIAL; CF s6 when you send an on offence for sentence along with another offence being commited for sentence

Power to commit a
D for sentence

S3 PCCSA 2000

S4 PCCSA 2000

An either-way offence(s) where m'
court decides its sentencing powers are insufficient (due to the seriousness of the offence(s))

D indicates guilty plea to an eitherway offence; and is being sent for trial in Crown Court (i.e.
not pleaded guilty)
for one or more
'related' offence(s);

-m' court may commit the offender (in custody or in bail) to Crown
Court for sentence.

-can commit, if they want the D to be sentenced for all offences together

S6 PCCSA 2000
('secondary committal')
Where ss3 or 4 couldn't be used for an offence, but there is another offence being committed (For sentence) under ss3 or 4 and they want the D to be sentenced for all offences together.

[[so this allows a secondary
Offence is "related" committal of (1)
IF the charges for another less serious them could be either-way of which joined in the same the m' court has indictment if both convicted the were tried in Crown offender on the
Court (under CrimPR same occasion

3.21(4)) ? i.e. must (even if not be founded on
'related'); and (2) a same facts OR be summary-only part of a series of offence of which m'
offences of the court has convicted same/similar offender on the character.
same occasion]]
[[NB: where the offence to be attached for committal is a summary-only ? it must be punishable Crown Court sentencing power

The Crown Court maximum
(i.e. the limitations on magistrates sentencing powers do NOT apply).

Crown Court maximum (i.e. can exceed magistrates restriction) only if either:
-(i) m' court stated that they considered their sentencing powers inadequate,
and so they would have committed under s3 anyway; or
-(ii) D is convicted by
Crown Court of 1 or more of the related offences.

by imprisonment or disqualification from driving to be sent under s6 with another offence]]
The magistrates'
court maximum.

If neither apply ?
sentencing power is the magistrates'
court maximum.

Examples:
-eg, s3: D pleads guilty or found guilty of an either-way offence in magistrates' court :
Court must decide whether its sentencing powers are sufficient; if not, they can use s3 PCCSA 2000 to commit D to Crown Court for sentence.
-Eg, s4: mix of pleas; D pleads guilty to one or more either-way offences in m' court,
but is also charged with other related offence(s) which are being sent to the Crown court for trial: ?

o If m' court decides its sentencing powers for the either-way offences to which
D has pleaded guilty are sufficient ? can sentence D on those matters immediately.
o IF they decide sentencing powers are insufficient OR that it is best that D is sentenced for all matters together once a verdict has been reached on the matters to which he has pleaded not guilty ? they can use s4 PCCSA to commit D for sentence.
o If they commit for sentence under s4 ? Crown Court maximum if either:
-(i) m' court indicated they would have committed under s3 anyway
(i.e. that their sentencing powers for that offence were insufficient);
or
-(ii) D is convicted of the related offence for which he is tried in Crown
Court.
o If neither apply, i.e. D is acquitted of the indictable offence tried in Crown
Court? sentencing power is the magistrates' court maximum.
Eg, s6 ('secondary committal')
o (1) For another, less serious either-way offence: D pleads guilty or is found guilty of multiple either-way offences in m' court, some are within sentencing powers, some are not ? use of s6 (along with s3):
-M' court must decide if their sentencing powers re each offence are sufficient. If not, can use s3 to commit D for sentence on all matters.
-However, if some offences are beyond their sentencing powers, but some fall within: can use s3 to commit the offences where their sentencing power are insufficient (and Crown Court maximum sentencing applies to those offences).
-Then, with the remaining offences (those that they think are within their sentencing powers) ? m' court can either sentence them themselves, or commit them under s6 PCCSA [[if they use s6, Crown
Court will be limited to the m' court sentencing powers for those offences committed under s6]].
o (b) Using s6 for summary-only offences:
o D pleads guilty, or is found guilty, of an offence and is committed under ss3 or 4 PCCSA. At same time, he pleads/is found guilty of a summary only offence. M' Court can commit the summary only offence under s6, with the main offence being committed under ss3/4, so that he is sentenced for all offences in one go. BUT the summary only offence must be punishable by imprisonment or disqualification from driving.
o As above, where D is being committed to crown Court to deal with a breach of a conditional discharge or suspended sentence imposed by crown Court ?
m' court can commit summary only offences under s6 (if punishable by imprisonment or disqualification).

Restrictions on magistrates sentencing powersFor either-way offence

Maximum = 6 months imprisonment and/or unlimited fine (s78 PCC(S)A
2000). [[specific provisions in LASPO re maximum fines for many specific offences]]
For summary offences:
o Max = 6 months imprisonment (if imprisonment is permitted at all for that offence); OR that prescribed by the statute creating the offence, whichever is less.
o Maximum fine = whatever the provision specifies; fines are usually fixed by reference to a level on the standard scale, rather than to a specific sum.
o The offence-creating provision will indicate whether a fine may be imposed in addition to any sentence of imprisonment, or only as an alternative.
o Where an offender is convicted of several summary offences punishable with fines at level 1-4, there is no restriction on the aggregate fine that may be imposed.
[NB: the 6 month ceiling can be expressly overriden by an enactment, but it must be express, must specifically state 'notwithstanding anything in s78(1) etc].
Aggregate prison terms, max 12 months

If m' court is sentencing for several offences and imposing imprisonment for 2+ offences ? the terms may be concurrent or consecutive (s133(1) MCA).
o Maximum aggregate = 12 months if 2+ either-way offences.
o i.e. If 2+ either-way offences, can order 6 months imprisonment on each charge, with 2 sentences to run consecutively to total 12 months.
o Where magistrates have power to deal with an offender for suspected breach of a suspended sentence ? they may (if they choose to active part or all of the suspended sentence) make it run consecutively to any term of imprisonment they impose for the offences that put the offender in breach.
In such a case, the aggregate of the suspended term and the terms for the present offences may exceed the normal 12 month aggregate.??

Compensation orders (sentencing in magistrates court)
-Where the offender is 18+ ? there is no limit on the amount of compensation the m' court may order in respect of each offence.
Detention in a Young Offender Institution (YOI)
-Where offender is aged 18-20 ? A magistrates court may impose a sentence of detention in a YOI.
-The same maximum periods apply as for imprisoning offenders aged 21 (i.e. 6 months, max 12 months aggregate).
o CF, Where offender is UNDER (at date of conviction) ? a YOUTH COURT
may impose a detention & training order ? max duration is 24 months (12 months custody + 12 months supervision in the community).
Non-custodial sentences in magistrates' court
-The powers of m' court re non-custodial sentences (including community orders)
are identical to Crown Court. A 'Goodyear indication' , R v Goodyear, judicial indications of sentence
(indication of what maximum sentence would be if D pleaded guilty)??

NB -> a plea of guilty must be entered voluntarily ? if accused is deprived of a genuine choice and in consequence purports to plead guilty, the plea is a nullity and the conviction will be quashed on appeal
Correct approach to judicial indications of sentence is set out in Goodyear, endorsed in CrimPD VII. CrimPR 3.23 sets out a detailed procedure for an application of indication of max sentence. Demonstrated need to take into account the review of any sentence then passed, either by way of an appeal by the D, or a reference on behalf of AG.
Prior to deciding whether or not to plead guilty to an offence, D can ask court for an indication of sentence he would receive if enters guilty plea.
o Can ask for an indication either: before the PTPH; or at any stage of proceedings before jury return their verdict.
Before asking for an indication, D must:
a) EITHER (1) accept the prosecution facts or a (2) 'basis of plea' must be agreed by the parties and the court and not require a Newton hearing.
-[[I.E.: there must be a settled factual basis upon which Judge is being asked to offer an indication]];
-AND
b) Give clear, written instructions/authority to his Counsel that he wishes to ask for an advance indication of sentence.

Responsibilities of the Court re an indication of sentence
-Court can ONLY give an indication IF it is sought by the accused : an advance indication should be sought by the defence, NOT promulgated by the judge
-Although, if appropriate, court Is entitled to remind the defence advocate that the accused is entitled to seek an advance indication of sentence.
-The giving of an indication is discretionary, decision of judge whether to give.
o If court refuses or postpones an indication, no obligation to give reasons
(although the judge will PROBABLY explain his reasons for deferral, and indicate the circumstances in which, and when, he would be prepared to respond to a request for an indication.
-If court defers an indication ? judge will probably explain his reasons; and further indicate the circumstances in which, and when, he would be prepared to respond to a request for an indication.
-If court refuses to give an indication (as opposed to deferring it)
o ? no obligation to give reasons

? the defence can make a further request for an indication at a later stage .
However, in such circumstances the court should not normally initiate the process (except where appropriate to indicate that the circumstances have changed sufficiently to permit a renewed application for an indication).
-If Judge proceeds to give a Goodyear indication , factors to be borne in mind:
o (1) it must be given in open court with all parties present. Reporting restrictions will be imposed to prevent a future jury hearing about D
considering changing his plea to guilty, if he decides not to.

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