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SENTENCING OVERVIEW SENTENCING STRUCTURE FOR PROBLEM QUESTIONS New structure is laid out in all of the guidelines issued by Sentencing Council (CJA 2009) 1) Determine the offence category according to Sentencing Guidelines 2) Identify starting point and reach a sentence within the category range a. Then adjust for aggravating or mitigating factors (which could include past convictions or other relevant factors) 3) Consider any other factors which indicate a reduction, such as assistance to the prosecution a. Court usually informed of this assistance by investigators: opaque process 4) Discount for guilty pleas a. As required by CJA 2003 s144, according to sliding scale in sentencing guidelines i. Makes administrative sense since hearing is shortened ii. Might also avoid an unnecessary acquittal just because jury is unsure if the facts fulfil the requirements stated by judge b. Chaytors  EWCA Crim 1810 i. Plea and Case Management Hearing (PCMH) might not be the "first reasonable opportunity" warranting 1/3 discount as per guideline ii. But if judge accepts that it is at the "first reasonable opportunity" there should be the "conventional one-third discount" 5) Assess offender's dangerousness 6) Apply totality principle 7) Compensation and ancillary orders a. Court must give reasons for not making compensation orders if there has been personal injury, loss or damage resulting from the offence 8) Court has duty to give reasons a. ISSUE: can apply any of the sentencing principles to suit the case 9) Consideration for remand time a. LASPOA 2012: removed judicial discretion in CJA 2003 regarding whether or not remand time should count towards sentence i. Prisons can administratively calculate time in remand ii. S240A: time spent on electronic tag can be taken into account at 50% rate if mentioned by the judge
PURPOSES OF SENTENCING Criminal Justice Act 2003, s142
Punishment of offenders Reduction of crime (including deterrence) Reform and rehabilitation of offenders Protection of the public Making of reparation to persons affected by their offences ISSUE: this merely provides a list without prioritising the different purposes o Purposes like reform and rehabilitation might be at odds with deterrence o Judges can therefore, in practice, choose whichever purpose suits their sentencing style. Does not result in consistency
AGGRAVATION AND MITIGATION Relationship with proportionality
Need not be at odds with the primary rationale of sentencing being proportionate to offence Sentencing is "closely entwined with social policy" and "politically sensitive", so additional factors should be recognised (and justified) in sentencing Use of aggravating and mitigating factors in English law might be "purely adventitious" o No distinction between robbery and armed robbery, rather weapons are an aggravating factor o Causing death by driving has several "determinants of seriousness" which are effectively aggravating factors"
Aggravating and mitigating factors
May be, but are not necessarily, opposites of each other The opposite of a mitigating factor may be neutral rather than aggravating E.g. pleading guilty is a mitigating factor (allows for discount) but pleading not guilty is not an aggravating factor
TOTALITY PRINCIPLE Although individual sentences for the offences might be proportionate, the total sentence cannot be allowed to be excessive when taken as a whole
CJA 2003, s166(3): courts can mitigate sentence "by applying any rule of law as to the totality of sentences"
SGC Guideline: TICs and Totality
2 main elements of totality o "all courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence" o "It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole" instead of just adding up sentences Consecutive sentences shouldn't usually be imposed for offences arising from the same facts/incidents, only where concurrent sentences would be insufficient Indeterminate sentences shouldn't run consecutively o If a determinate sentence is imposed consecutively to the indeterminate sentence, it starts when the minimum term of the indeterminate sentence expires If total sentence is excessive, courts can proportionately reduce the individual sentences so as to achieve overall proportionality
ISSUE (Padfield): does this grant offenders a "discount for bulk offending?"
Although this might better support the proportionality principle than cumulative sentencing, it could also result in under-sentencing of offenders with many offences on the indictment Grant  EWCA Crim 2244 o D convicted of supplying drugs to boyfriend in prison o CA (Wilkie J): although the sentences were rightly imposed based on the offences, they should have been made to run concurrently in order to fulfil the totality principle so as not to be "manifestly excessive" in the circumstances
AGGRAVATING FACTORS STATUTORY AGGRAVATING FACTORS (AS IN THE CRIMINAL JUSTICE ACT 2003)
Court is required to treat these as aggravating factors
S143(3): OFFENCE COMMITTED ON BAIL
ISSUE (Ashworth): this doesn't increase the harm of the offence nor culpability o Might be due to offender's breach of trust, but the serving of a sentence for offence on bail is to be consecutive to original offence sentence and would therefore be longer anyway?
o No clear proof that this actually helps deterrence
S145(2): RACIAL OR RELIGIOUS AGGRAVATION
General aggravating factor; must be stated in open court that it was so aggravated Definition: Crime and Disorder Act 1998, 28 o Conduct that is "racially motivated" CDA 1998 also created racially aggravated offences of wounding and assault, criminal damage, public order offences and harassment o ISSUE: increase in sentences was not equal
KELLY AND DONNELLY  2 CR APP R (S) 341
CA: accepted some of the SAP guidelines on sentencing o Courts should state the sentence without racial/religious aggravation and then with that, to ensure transparency o Identified factors which affect seriousness of the racial/religious aggravation Patterns of conduct, repeated hostility, etc. o Relative brevity or minor/incidental abuse might reduce the seriousness of the aggravation
S146: AGGRAVATION RELATING TO DISABILITY OR SEXUAL ORIENTATION
If offender shown to be wholly/partially motivated by or is hostile to these characteristics of the victim E.g. evidence of homophobia on the part of offender would be a factor
S30 (COUNTER-TERRORISM ACT 2008): AGGRAVATION WITH TERRORIST CONNECTION GENERAL AGGRAVATING FACTORS
Suggested by Sentencing Guidelines Council in Overarching Principles: Seriousness o Includes the statutory factors but also several others (non-exhaustive list) o Ashworth: Meant to indicate culpability and seriousness of offence, hence still proportionate?
o If the offence itself reflects the factor (e.g. vulnerable victims), it cannot be used as a further aggravating factor Applicable to sentencing of adults (>18 years old)
TARGETING A VULNERABLE VICTIM O'BRIEN  2 CR APP R (S) 560
D tricked his way into old woman's house and stole £200, a watch and a mobile phone (had committed similar offences before) Was sentenced to 9 years imprisonment, CA reduced it to 8 for guilty plea CA: agreed with trial judge that "society rightly reserves its deepest censure for those who prey on vulnerable groups such as the elderly" o Proportionate due to the greater harm that results in casting "a shadow on the lives of elderly people" in general ISSUE: whilst the targeting of vulnerable victims might make D more culpable, should the sentence be increased that much in response?
o In O'Brien, sentence of 8 years might be effectively double of what a normal distraction burglary (goods recovered quickly) with past convictions would receive Aggravating factors become more important than the offence itself?
OFFENDERS OPERATING IN GROUPS OR GANGS
Probability of greater harm caused, and may also indicate increased culpability if they collaborate to pursue and unlawful purpose Victim might also be put in greater fear when faced with more than one offender NOTE: some may be charged as conspiracy, so the factors may not apply?
PLANNING OF AN OFFENCE
Premeditated, so probably more culpable o Indicates stronger criminal motivation compared to acting on impulse Possibility that the planning is used to minimise harmful effects and collateral damage?
COMMISSION OF AN OFFENCE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS
Offenders do (or should) realise that their voluntary intoxication might lead to uninhibited conduct with greater consequences Usually applied in cases where there is a history of drunk violence Most frequently identified aggravating factor in the Crown Courts (2008 survey) Sheehan and O'Mahoney  1 Cr App R (S) 149 o Young adults with history of binge-drinking and violence were found to be dangerous and sentenced with Imprisonment for Public Protection
FAILURE TO RESPOND TO WARNINGS
Indicates a "callous indifference to the consequences of one's actions"
ABUSE OF POSITION OF TRUST/ABUSE OF POWER
Public need to retain confidence in those placed in positions of power (e.g. police)
OFFENCES AGAINST PUBLIC OFFICIALS
Not included in the guidelines, but has been applied by the courts AG's Ref No 35 of 1995  1 Cr App R (S) 413 o Lord Taylor CJ: use of violence against police officer "who was merely acting in the exercise of his duty" was an aggravated offence
EFFECT OF AGGRAVATING FACTORS
Indicate the seriousness of the offence In SGC Guidelines (Assault and other offences against the person 2008) o Presence of one "aggravating factor indicating higher culpability" means the community sentence threshold is passed, presence of 2 factors shows that custody threshold is passed
MITIGATING FACTORS Types of mitigating factors
Some (especially offence-specific factors) deal with the reduced culpability or reduced harm of the offence (e.g. impulse) Other factors (personal mitigation) are not based on diminished culpability or harm, but are dependent on social considerations and other issues o Don't strictly adhere to the proportionality principle
Effect of mitigation
Apart from reducing the length of custodial sentences, research shows that mitigation can affect cases "on the cusp" of the custody threshold o In about ¼ of cases, personal mitigation brought an offence that would otherwise merit custody below the custody threshold
STATUTORY MITIGATING FACTORS
Guilty Plea o Results in a discount, independent of seriousness of offence Assistance given to the investigator or prosecution o Serious Organised Crime and Police Act 2005, s73 CJA 2003, s166(1): "any such matters as, in the opinion of the court, are relevant in mitigation of sentence"
GENERAL MITIGATING FACTORS
Offence committed on impulse o Suggests reduced culpability, especially as compared to premeditated offences Offender falls just outside legal requirements of a criminal defence o E.g. duress/necessity/insanity o AG's Ref No 37 of 2004  1 Cr App R (S) 65
Attempted robbery by someone with clinical depression (didn't qualify for insanity defence) could be sentenced more leniently with community rehabilitation order and psychiatric treatment o Rehman and Wood  1 Cr App R (S) 77
Ignorance of the law could justify departure from the mandatory minimum sentence for possession of illegal firearm Entrapment by the police or agent provocateur o If very serious, might constitute an abuse of process and stay the prosecution o If less serious, could be considered as mitigation
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