Criminal SGS 6: Sentencing, STRUCTURES ON p.6,
Principles of Sentencing
Section 57 Sentencing Act
- Requires the court, when passing sentence, to consider the purpose of sentencing:
a) punishment of the offender;
b) reduction of crime (including by deterrence);
c) reform and rehabilitation of the offender;
d) protection of the public; and
e) reparation by the offender.
Sentencing Powers
- Courts must follow relevant sentencing guidelines unless it is contrary to the interest of justice (Coroners and Justice Act 2009)
Magistrates Court (s.224 SA and s.133 MCA 1980)
- Minimum priosn term is 5 days s.132 Magistrates’ Court Act 1980
- Max prison is 6 months for any one offence either summary or either way s.224 SA
- The maximum term for more than one conviction is 5 months unless two or more offences are triable either way whereby the
court may impose a term of 12 months s.133 MCA
- Low value shop lifting offences of a value of less than £200 are summary only so can carry 6 months for any number of offences
- Section 14 SA allows the Mags to send a convicted defendant to the Crown Court for sentencing and the Crown will proceed to
deal with D as if he had been convicted on indictment.
Crown Court
- No restriction on sentences it may impose in respect of offenders and is constrained by the maximum limit in respect of the
particular offence
Types of Sentence
Fines ss.11-132 SA
- Financial penalty requiring D to pay money to the court on conviction and can be combined with any other sentence. Amount
is due immediately and with permission can be paid in instalments.
- Fines can be imposed on conviction of any offence unless statute provides a minimum sentence where a fine is not sufficient.
- Mags can fine from level 1 (£200) to level 5 (unlimited).
- Crown can fine any amount with no upper limit.
- The band into which the offence falls for the purpose of imposing a fine can be found in the relevant sentencing guideline.
Failure to pay fine
If income has changed he can apply to court for the amount to be lowered but if he does not pay without good
reason then he may have more penalties including a term of imprisonment.
Victim surcharge s.42 SA
This will be added to the sentence and will vary from offence.
Compensation orders s.133-146 SA
- Court can consider compensation which is a sum of money which the offender pays to the victim to compensate for personal
injury, loss or damage.
- This can be made alongside any other sentence.
Absolute or conditional discharge
- Absolute discharge gives the offender a criminal record and will be given where it is sufficient punishment enough s.79 SA.
- Conditional discharge means the offender must not re-offend within a period of time, max three years s.80 SA. If he does
reoffend, he will be sentenced afresh for the first offence and the new offence schedule 2 SA.
- The new offence will be seen as an aggravating factor when a sentence is imposed for the new offence.
- These can be made by both the mags and CC.
Community orders
- Section 202 SA provides where a person 18 or over is conviction of an imprisonable offence, the court may make a community
1
, Criminal SGS 6: Sentencing, STRUCTURES ON p.6,
order. The probation service will form a report for the court to assess the suitability of the order.
- Section 204 SA CO can be imposed if the threshold for the offence is ‘serious enough’. If not, another sentence will be made.
- Maximum length is 3 years and s.201 SA includes unpaid work, mental health treatment, drug and alcohol rehab, curfew,
residence requirement, electronic monitoring//tagging
- These cannot interfere with offenders religious beliefs and/or times of work and/or education.
Breach of community order
The first step is to be given a written warning and failing this he returns to court.
If breach is proved, court can sentence for the original offence to a maximum six months’ imprisonment.
Custodial sentences TEST
- Section 230 SA provides the court must not pass a custodial sentence unless the offence is ‘so serious’ that no other offence
could be justified.
- Can give custodial sentences if D is not willing to comply with community penalty which requires consent or drug testing
s.230(4) SA
- Section 231 requires that a custodial sentence must be for the shortest term that is commensurate with the seriousness of the
offence.
Sentencing Council guidelines:
1. Has the above threshold been passed?
2. If so, is it unavoidable that a custodial sentence is imposed?
3. If so, can the sentence be suspended?
4. If not, impose a sentence which takes immediate effect for the term commensurate with the
seriousness of the offence.
Principle of totality of sentence
Where an offender is convicted of more than one offence at the same time, the court should impose separate
sentences for each separate offence.
Custodial sentence may run concurrently or consecutively or a mixture of both.
Concurrently is the separate terms all start at the same time whereas consecutively means that each term must be
served one after the other
Concurrently where the offences arises from the same incident and are connected such as theft from an employer.
Consecutively where the matters are not linked such as a theft on one person then assault on another.
Suspended sentence
- Section 288 SA provides sentences between 14 days and 2 years can be suspended for a period of six months and two years.
- Offender can still be required to undertake community orders
- If the offend or breach the sentence, the suspended sentence may be activated and the offender will be imprisoned for all or
part of their original sentence.
Sentencing Procedure
- When D pleads guilty or is found guilty, the court will determine the seriousness of the offence(s) to ascertain whether either
the community or custodial threshold has been passed.
- The purpose of the offence-specific guidelines is to assist the court in narrowing down the sentence to an appropriate one such
that sentencing operates both justly and consistently.
1. Offence category, starting point and range
- Consider the offender’s culpability (reflects mens rea) in committing the offence and the harm which the offending has caused
s.63 SA.
- The seriousness will look at both the resulting harm and the intention (if any) or foresight of harm of the offender.
2. Aggravating and mitigating factors
- The court will look at these in relation to the offence and the offender at the time of the offence
- Aggravating will increase the likely sentence whereas mitigating will reduce the likely sentence
2
Principles of Sentencing
Section 57 Sentencing Act
- Requires the court, when passing sentence, to consider the purpose of sentencing:
a) punishment of the offender;
b) reduction of crime (including by deterrence);
c) reform and rehabilitation of the offender;
d) protection of the public; and
e) reparation by the offender.
Sentencing Powers
- Courts must follow relevant sentencing guidelines unless it is contrary to the interest of justice (Coroners and Justice Act 2009)
Magistrates Court (s.224 SA and s.133 MCA 1980)
- Minimum priosn term is 5 days s.132 Magistrates’ Court Act 1980
- Max prison is 6 months for any one offence either summary or either way s.224 SA
- The maximum term for more than one conviction is 5 months unless two or more offences are triable either way whereby the
court may impose a term of 12 months s.133 MCA
- Low value shop lifting offences of a value of less than £200 are summary only so can carry 6 months for any number of offences
- Section 14 SA allows the Mags to send a convicted defendant to the Crown Court for sentencing and the Crown will proceed to
deal with D as if he had been convicted on indictment.
Crown Court
- No restriction on sentences it may impose in respect of offenders and is constrained by the maximum limit in respect of the
particular offence
Types of Sentence
Fines ss.11-132 SA
- Financial penalty requiring D to pay money to the court on conviction and can be combined with any other sentence. Amount
is due immediately and with permission can be paid in instalments.
- Fines can be imposed on conviction of any offence unless statute provides a minimum sentence where a fine is not sufficient.
- Mags can fine from level 1 (£200) to level 5 (unlimited).
- Crown can fine any amount with no upper limit.
- The band into which the offence falls for the purpose of imposing a fine can be found in the relevant sentencing guideline.
Failure to pay fine
If income has changed he can apply to court for the amount to be lowered but if he does not pay without good
reason then he may have more penalties including a term of imprisonment.
Victim surcharge s.42 SA
This will be added to the sentence and will vary from offence.
Compensation orders s.133-146 SA
- Court can consider compensation which is a sum of money which the offender pays to the victim to compensate for personal
injury, loss or damage.
- This can be made alongside any other sentence.
Absolute or conditional discharge
- Absolute discharge gives the offender a criminal record and will be given where it is sufficient punishment enough s.79 SA.
- Conditional discharge means the offender must not re-offend within a period of time, max three years s.80 SA. If he does
reoffend, he will be sentenced afresh for the first offence and the new offence schedule 2 SA.
- The new offence will be seen as an aggravating factor when a sentence is imposed for the new offence.
- These can be made by both the mags and CC.
Community orders
- Section 202 SA provides where a person 18 or over is conviction of an imprisonable offence, the court may make a community
1
, Criminal SGS 6: Sentencing, STRUCTURES ON p.6,
order. The probation service will form a report for the court to assess the suitability of the order.
- Section 204 SA CO can be imposed if the threshold for the offence is ‘serious enough’. If not, another sentence will be made.
- Maximum length is 3 years and s.201 SA includes unpaid work, mental health treatment, drug and alcohol rehab, curfew,
residence requirement, electronic monitoring//tagging
- These cannot interfere with offenders religious beliefs and/or times of work and/or education.
Breach of community order
The first step is to be given a written warning and failing this he returns to court.
If breach is proved, court can sentence for the original offence to a maximum six months’ imprisonment.
Custodial sentences TEST
- Section 230 SA provides the court must not pass a custodial sentence unless the offence is ‘so serious’ that no other offence
could be justified.
- Can give custodial sentences if D is not willing to comply with community penalty which requires consent or drug testing
s.230(4) SA
- Section 231 requires that a custodial sentence must be for the shortest term that is commensurate with the seriousness of the
offence.
Sentencing Council guidelines:
1. Has the above threshold been passed?
2. If so, is it unavoidable that a custodial sentence is imposed?
3. If so, can the sentence be suspended?
4. If not, impose a sentence which takes immediate effect for the term commensurate with the
seriousness of the offence.
Principle of totality of sentence
Where an offender is convicted of more than one offence at the same time, the court should impose separate
sentences for each separate offence.
Custodial sentence may run concurrently or consecutively or a mixture of both.
Concurrently is the separate terms all start at the same time whereas consecutively means that each term must be
served one after the other
Concurrently where the offences arises from the same incident and are connected such as theft from an employer.
Consecutively where the matters are not linked such as a theft on one person then assault on another.
Suspended sentence
- Section 288 SA provides sentences between 14 days and 2 years can be suspended for a period of six months and two years.
- Offender can still be required to undertake community orders
- If the offend or breach the sentence, the suspended sentence may be activated and the offender will be imprisoned for all or
part of their original sentence.
Sentencing Procedure
- When D pleads guilty or is found guilty, the court will determine the seriousness of the offence(s) to ascertain whether either
the community or custodial threshold has been passed.
- The purpose of the offence-specific guidelines is to assist the court in narrowing down the sentence to an appropriate one such
that sentencing operates both justly and consistently.
1. Offence category, starting point and range
- Consider the offender’s culpability (reflects mens rea) in committing the offence and the harm which the offending has caused
s.63 SA.
- The seriousness will look at both the resulting harm and the intention (if any) or foresight of harm of the offender.
2. Aggravating and mitigating factors
- The court will look at these in relation to the offence and the offender at the time of the offence
- Aggravating will increase the likely sentence whereas mitigating will reduce the likely sentence
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