Transcript Sentencing practice

SENTENCING PRACTICE
Who?

On conviction in the Crown Court:
The judge alone decides the appropriate sentence
 The jury have nothing to do with it
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On conviction in the Magistrates’ Court
Magistrates’ can determine the sentence
 Maximum sentence is 6 months in prison
 Under s.132 Magistrates’ Court Act 1980 –
minimum period is 5 days
 Alternatively, under s.3 Powers of the Criminal
Court (Sentencing) Act 2000, D can be committed to
the Crown Court for sentencing
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Once D has been found guilty, the following must
be decided:
What category of sentence is appropriate
 Then the amount, duration and form of that sentence
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In recent years there has been a considerable
amount of legislation trying to control the
sentencing powers of judges
What fundamental problems can you see with
this?
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Blurring of the lines between separation of powers
Legislation:
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Legislation has, for a minority of offences,
fixed the sentence that must be imposed i.e.
mandatory sentences:
 E.g.
Drug Trafficking - S. 110 Power of
Criminal Courts (Sentencing) Act 2000
 The section requires that a Crown
Court shall impose a sentence of at least 7 years
for a third class A drug trafficking offence
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S.287 Criminal Justice Act 2003 –
 Introduced
a mandatory minimum sentence for
the offence of possession, purchase, acquisition,
manufacture, transfer or sale of certain prohibited
weapons on or after 22 January 2004.
 The section requires that a Crown
Court shall impose a minimum sentence of:
5
years' imprisonment if the offender is aged 18 or
over when convicted; or,
 3 years detention if the offender was under 18 but
over 16 when the offence was committed.
General restrictions on sentences:

Legislator has divided sentences into 4 categories:
1.
2.
3.
4.
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Custodial sentences
Community sentences
Fines
Miscellaneous sentences (discharges etc)
Certain restrictions in place e.g. Custodial and
community sentences can only be ordered where
certain statutory conditions are met (thresholds)
Under s.174 CJA 2003 Judge has to give reasons
for their sentence and explain the effect of it to D
Custodial Sentences:
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Defined under s.76 PCC(S)A 2000
Over 18 – a sentence of imprisonment or a
suspended sentence
 Under 18 – includes detention in a young offender’s
institution or a sentence of custody for life

The Threshold
 Court should not pass a custodial sentence
“unless it is so serious that only a custodial
sentence is justified”

S 152 CJA 2003

Under s.153 CJA, court is directed to...
“impose the shortest custodial term that is
commensurate with the seriousness of the offence
(subject to certain exceptions)”
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S.143 CJA 2003 – in considering the seriousness
of the offence, the court will take into account the
culpability of D in committing the offence and the
harm which the offence caused, was intended to
cause or might foreseeably have caused
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S.143 CJA 2003 also states that court must
take into account:
 Previous
convictions
 Failure to respond to previous sentences
 Commission of the offence whilst on bail
...when considering the seriousness of the
circumstances
Community Sentences:
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S.148 CJA 2003 – states that a community
sentence can only be imposed if the offence was
“serious enough to warrant such a sentence”
This is the threshold for the sentence
The requirements under the order must be
specific to that particular D
Restrictions on liberty under the sentence must be
‘commensurate with the seriousness of the
offence’
Dangerous offenders
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S.225 CJA 2003 provides that violent dangerous
offenders must receive either a life sentence or an
Inderterminate sentence for Public Protection
(IPP)
An IPP allows prisoners to be held for longer than is
required for the gravity of their offence
IPP can be imposed where offender has committed a
specified sexual or violent offence (153 are listed)
Also must have been assessed as being dangerous
because they pose a substantial risk to the public
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The heavy use of IPPs has led to overcrowding in
prison
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The judge sets the minimum amount of time D must serve
but not the maximum
When minimum term is served, prisoner not released
unless parole board has concluded they are no longer
dangerous
Normally required to undertake rehabilitation courses etc
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Criticism is that there are not enough of these courses and
therefore no opportunity for the prisoners
R v James and Lee (2009) – brought a case that their
continued custody was unlawful. Court of Appeal agreed due
to ‘a general and systemic legal failure’ but House of Lords
held that it was in fact legal
The Tariff System
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Tariff system is based upon treating like cases
alike
 People
with similar backgrounds who commit
similar offences in similar circumstances, should
be treated in the same way
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There is no rigid scale of penalties but it is
possible to identify ranges of sentences which
will apply
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System works in 2 stages:
1.
2.
Judge will take the tariff sentence that is
generally considered appropriate
Judge will then consider secondary tariff
principles i.e. mitigating and aggravating factors
that decrease or increase the tariff
Mitigating factors:
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Reasons why the defendant should be punished less
severely than the facts of the case might suggest
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S.166 Criminal Justice Act 2003
These include:
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Youth or old age
The ‘jump effect’ (requirement that sentences for repeat offenders should
increase steadily rather than by large jump)
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Provocation
Domestic or financial problems
Drink, drugs or ill health
Any special hardship offenders may have to face in prison
e.g. Sex offenders or police informants being held in
solitary confinement
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If offender has already been held on remand,
courts may reduce tariff sentence
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Shock of being locked up is severe punishment that
has already been received
A plea of guilty is usually taken as a sign of
remorse
S.144 Criminal Justice Act – sentence can be
reduced for an early guilty plea:
1/3 reduction for a plea at earliest opportunity
 ¼ where trial date has been set
 1/10 when plea is entered just before or during trial
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Application of s.144 is politically sensitive as
available even where someone caught redhanded
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The fact that the offence was committed on
impulse and not premeditated might also act
as a mitigating factor
Aggravating factors
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May also be factors that make the offence
worse
The court may want to pass an exemplary
sentence
S.145 CJA 2003 –
(2)If the offence was racially or religiously aggravated,
the court—
(a)must treat that fact as an aggravating factor, and
(b)must state in open court that the offence was so
aggravated.
S.146 CJA 2003 –
(a)that, at the time of committing the offence, or immediately before or
after doing so, the offender demonstrated towards the victim of the
offence hostility based on—
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(i)the sexual orientation (or presumed sexual orientation) of the victim, or
(ii)a disability (or presumed disability) of the victim, or
(b)that the offence is motivated (wholly or partly)—
(i)by hostility towards persons who are of a particular sexual orientation, or
(ii)by hostility towards persons who have a disability or a particular disability.
(3)The court—
(a)must treat the fact that the offence was committed in any of those
circumstances as an aggravating factor, and
(b)must state in open court that the offence was committed in such
circumstances
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Any previous convictions which are recent
and relevant and/or…
The fact that the offence was committed whilst
on bail is also to be considered as an
aggravating factor
Topical Issue…
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Giving ‘Queen’s evidence’ in return for leniency
Historically UK law enforcement has been
reluctant to use such tactics
Considered to be morally dubious
 Unreliable – people may lie to protect themselves
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Serious and Organised Crime and Police Act 2005
now provides that an offender can benefit from
immunity(s.71) or a reduced sentence (s.73) if
they give evidence against other criminals
Sentencing Guidelines
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Court of Appeal plays a vital role in developing the
tariff system
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Provide judges of first instance with guidance as to the
appropriate sentence for certain types of offence and
offender
The CJA 2003 established a Sentencing
Guidelines Council but…
Replaced in 2010 when Coroners and Justice Act
2009 set up the Sentencing Council
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Responsible for developing sentencing guidelines,
monitoring the use of guidelines and assessing and
reviewing a wide range of decisions relating to sentencing
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Courts are obliged to take sentences into account
Must give reasons if they depart from these
guidelines when imposing a sentence
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s125 Coroners and Justices Act 2009 - All Courts
must follow applicable sentencing guidelines (unless
contrary to the interests of justice)
Provides practitioners and members of the public
with general starting point for each offence
Scenario…
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David has been arrested for shoplifting in Waitrose. He
had forgotten his wallet and was really hungry at
lunchtime so stole a Duck and Hoisin wrap and a packet
of crisps. Once stopped by the store detective and the
police were called, he admitted that he had stolen the
items, offered to pay for them.
Consider the sentencing guidelines and discuss what type
of sentence you would impose on David and why.
Scenario…
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Raoul is arrested at his home. He is discovered to have a 50”
LED TV and a Blu-Ray player both with serials numbers
which match items stolen from John Lewis earlier that day.
The items were reported missing by a 67 year old shop clerk
who also said that she had challenged Raoul as he left the
store via a back entrance and he had told her that if she
didn’t mind her own business, he would kick her head in.
He initially denied having stolen the goods but then
announced in court, just before he was due to be cross
examined by the Prosecution, that he was in fact guilty.
Consider the sentencing guidelines and discuss what
type of sentence you would impose on Raoul and why.
Scenario…
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Jane is arrested for shoplifting in Tiffanys jewellery store. She
is found to have, hidden in a pram that she is pushing,
£26,000 worth of rings and necklaces.
She had actually managed to leave the store, having got her
5 year old son to distract the security guard by crying that he
had lost his mummy and asking him to help find her.
On being questioned by the police, and at court, she
continued to argue that she did not know anything about the
jewellery and her son must have picked them up without her
knowing.
Consider the sentencing guidelines and discuss what
type of sentence you would impose on Jane and why.