Professional Ethics pre-reading (to include student materials for the 1st small group session)
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- Bu səhifədəki naviqasiya:
- 5. “TICs” and “Sample Offences”
- D. THE PURPOSE OF SENTENCING
- E. THE AVAILABLE SENTENCES
- F. SENTENCES WHICH ARE NEITHER COMMUNITY NOR CUSTODIAL 1. Absolute discharges
- 2. Conditional discharges
- 5. Referral orders and reparation orders
- Important aspects of community orders (i.e. community sentences for adults)
4. Indications as to sentence The courts are very keen that people who are guilty should plead guilty. It saves time and money. As you will see later, defence counsel is obliged to advise every client that if he pleads guilty he will get a discount on any sentence received. Given that advice, sometimes the only thing holding a defendant back from pleading guilty is the fact that he doesn’t know precisely what the sentence would be. You may have advised a client that, if he’s lucky, then this particular judge will give him a community sentence rather than sending him inside; or another client that he’s looking at a sentence of between eighteen months and three years. But without asking the judge what sentence he would pass if the client pleaded guilty you often can’t be more precise than that. So the client will often enquire whether you can ask the judge. The answer is, yes. The formal procedure for seeking an indication as to sentence is to be found in the case of Goodyear [2005] ECWA Crim 888, the Crim PR r.3.23 and CPD VII C. The essential elements are as follows:
5. “TICs” and “Sample Offences” Imagine that the defendant, a prolific burglar, is arrested for two offences of burglary. He makes a full and frank confession to the police. He knows that he will end up serving a prison sentence for them. He also knows that he has committed a dozen other burglaries which he has not yet been linked to, but which may come back to haunt him after he’s served his sentence. Rather than risk being charged with those offences months or years down the line, he decides to confess to them all now. That way he is wiping the slate clean: when he comes out of prison he needn’t worry about them. In these circumstances the prosecution will often charge the defendant with two or three of the offences. They will then draw up a schedule of offences to be taken into consideration by the court when passing sentence (hence “TICs”). At the beginning of the sentencing exercise, after the defendant has pleaded guilty, he will be asked in open court whether he has received the schedule and wishes the court to take the additional offences into consideration when passing sentence. If he says he does then in the course of the opening the prosecutor will briefly summarise the TICs, having dealt in more detail with the offences charged. The court will only pass specific sentences in relation to the offences charged, but in doing so will take into account the other offences. Though the court may increase the sentence to reflect the TICs the increase will often be relatively minor and it is therefore often in the defendant’s interests to wipe the slate clean in this way. (For more on this you might like to refer to the Sentencing Council’s guideline “Offences Taken into Consideration and Totality” effective from June 2012). Where D is prepared to agree to the other offences it is not strictly necessary to draw up a TIC schedule. The prosecution can simply tell the judge that the offences charged are “sample” or “specimen” offences. Whichever procedure is used, the judge cannot take into account the offences not charged unless the defence agrees. 6. Deferring sentence Sometimes in the course of mitigation on behalf of someone facing custody it may be claimed that in recent days or weeks he has “turned a corner” – for example, by finding employment, or by giving up drinking and attending alcoholics anonymous. The court may take the view that, if he really has turned that corner, they may be able to pass a non-custodial sentence. But it is too soon to make that assessment. In those circumstances Parliament has provided (SA s.1) that the court can defer sentencing the defendant for up to six months. They should tell him why they are deferring sentence and what conduct is expected of him (e.g.to see if he can hold down a job and stay off the booze). If at the end of the period the court determines that he has complied (it will be assisted by a further report from the probation service) it should not pass a custodial sentence. If he commits an offence during the deferment period he is liable to be sentenced straight away for the new offence and for the original offence for which sentence was deferred. 7. Passing sentence The judge will usually pass sentence once the defence have concluded their plea in mitigation. The judge should explain to D in layman’s terms why she has passed this particular sentence (and – if it’s a custodial sentence – why the threshold has been crossed), and what the effect of the sentence is. The judge should explain what reduction has been given for a guilty plea and what mitigating/aggravating features were particularly compelling. D. THE PURPOSE OF SENTENCING Before considering the sentences available to the courts you should remind yourself of the purposes of sentencing. The list of purposes for adults appears in s.142 CJA 2003:
One commentator has said, “The best that can be hoped for is that nobody refers to it because it has no practical relevance”. The fact is, we all know what the theoretical purposes of sentencing are. The difficulty is how to resolve them when they conflict: do you put the habitual crack-addicted burglar into rehab, or do you punish him by locking him up? The list doesn’t help you resolve that. In the case of youths the position is different, because the sentencing regime is informed by one consideration which is more important than the others: the principal aim of the system is to divert youngsters from offending. Courts will bend over backwards to prevent young people from the criminal justice system by encouraging them to become decent adults. But if that hasn’t worked, or if the youth has committed a crime so serious that immediate custody is called for, then he will be locked up. When it come into force s.142A CJA will set out in one place the aims a court must have in mind when sentencing youths. It is not yet in force because as drafted “the other purposes of sentencing” in the case of youths include everything that is in s.142 (above) apart from “reduction in crime”. There is at the time of writing a debate as to whether the section should be amended to include that as well (the question being whether it is right to make the sentence more severe on this particular juvenile in order to deter others).
E. THE AVAILABLE SENTENCES The sentences most commonly available to the courts are set out in the following table. Note the categorisation of custodial sentences, community sentences, and others. COMMON SENTENCES
The following diagram illustrates the use of common sentences:
F. SENTENCES WHICH ARE NEITHER COMMUNITY NOR CUSTODIAL 1. Absolute discharges The court discharges D without any adverse consequences. Absolute discharges are pretty rare as they are only used where D hasn’t really done anything which people would regard as culpable (google the Thirsk Rail Crash of 1892 for an interesting example of someone being absolutely discharged for offences of manslaughter). Most cases where D is only technically guilty of an offence are filtered out before they get to sentence – either because the police don’t charge them or because, on public interest grounds, the CPS doesn’t pursue them. 2. Conditional discharges The court discharges D without punishment on condition that he commits no offence for a period fixed by the court of up to three years. If he does commit an offence during that period, he is liable to re-sentenced afresh for the offence for which he was conditionally discharged (in addition to being sentenced for the new offence). The court doesn’t have to re-sentence: but it may do. The court dealing with the breach can impose any sentence for the breach which the original sentencing court could have imposed (so a Crown Court dealing with the breach of an order made by the magistrates’ court is restricted to the lower court’s powers) Conditional discharges are common. They are particularly useful for a first-time offender who has committed a “real” criminal offence but a relatively minor one. By “real” criminal offence is meant an offence like shoplifting or threatening behaviour, as opposed to offences which people often don’t regard as criminal, such as careless driving. The court may feel that this defendant has already received a wake-up call by being arrested and prosecuted and that a conditional discharge will further help to divert him from the criminal justice system and deter him from future, more serious, offending. The sentence has the advantage of
A conditional discharge should not be combined with another sentence (e.g. a fine) for the same offence (though the court can make an ancillary order, such as compensation). 3. Bind overs A person who has been convicted may be “bound over to keep the peace”. That generally involves him giving undertakings to the court to keep the peace for a specified period of time and to pay a specified sum of money should he fail to do so. The specified period and amount is determined by the court. A bind over is only appropriate upon conviction where the offence is a relatively minor one, usually involving violence or the threat of it, in circumstances which give rise to fear of further violence. The classic example would be an offence arising out of antagonism between neighbours where they have to continue living next to each other. D may be bound over to keep the peace for twelve months in the sum of £200. He will leave the court without paying a penny: but if he breaches the peace during the next twelve months he’s liable to forfeit the £200. Anyone appearing before a court can be bound over – whether convicted or not, or whether a defendant or not. For example, a magistrate may acquit the defendant of assaulting his neighbour but still bind the defendant over if there are grounds for fearing that on leaving the court he will continue the feud. And the magistrate may bind over the neighbour if he appears before the court as a prosecution witness – again if he fears the neighbour might cause a breach of the peace. Often in this sort of case, rather than prosecute, the CPS will agree to drop the prosecution against the defendant if he agrees to be bound over to keep the peace. 4. Fines This is the commonest type of sentence: see the diagram above. That’s not surprising when you consider that most driving offences will automatically attract a fine. Fines are generally used where the offence is not serious enough for a community or custodial sentence, but where a conditional discharge or bind over is not appropriate. A conditional discharge will be inappropriate where, for example, the offence, though a first offence, is too serious not attract some immediate punishment (assaulting a police officer would normally be so regarded).Or where it is an offence of shoplifting, but the defendant has already been conditionally discharged for a previous offence of shoplifting. Or for minor driving offences where a penalty of some sort is generally regarded as a necessary deterrent to motorists. It is permissible to fine someone and give him either a community or a custodial sentence for the same offence. If the offence is a summary offence the maximum fine that can be imposed is determined by reference to a standard scale. A level 1 offence, attracts a maximum fine of £200; level 2, a maximum of £500; level 3, a maximum of £1000; level 4, a maximum of £2500; level 5, an unlimited amount There is generally no limit the magistrates can impose for an either-way offence. In the Crown Court there is no limit to the amount a judge can fine for an either-way or indictable-only offence (Balfour Beatty were fined £7.5 million for their part in the Hatfield rail crash). Juveniles (i.e. under-18s) can be fined (up to £250 if 10-13 and up to £1000 if 14-17). Parents must pay the fines of juveniles under 16. If the juvenile is 16 or 17 the court can make either the juvenile pay or the parents pay. When deciding on how much to fine the court must take into account, in addition to the seriousness of the offence and any mitigating features, the financial circumstances of the offender (s.162 CJA). A £100 fine will be more onerous on someone who is poor than someone who is rich. On the other hand, the court cannot increase the fine so that it is out of all proportion to the seriousness of the offence, just because D is rich. It would be quite wrong, for example to fine a rich person £2,000 for stealing a pint of milk from a shop, even if he would not struggle to pay the fine. If you are mitigating on behalf of a client who is facing a fine you must take careful instructions and be in a position to inform the court of his income and outgoings and any readily disposable assets. Where the court does not have sufficient information about D’s financial circumstances (usually where he is unrepresented) it can make a ‘financial circumstances order’ requiring D to draw up a clear statement of his circumstances. Generally a court will grant time to pay and when it does so it will either set a period within which the entire sum must be paid or it will order the sum to be paid by fixed instalments. The Magistrates’ Courts Sentencing Guidelines suggest that any fine should be capable of being paid within 12 months. The CA has suggested that this is not a rule of law and that often a longer period will be appropriate. Whilst you should be able to advise on whether or not your client is facing a fine, you are not expected on this course to be able to advise accurately on the precise amount of the fine. That is learnt principally through experience and by asking around among colleagues. But you should appreciate this. If you go into a criminal set of chambers 90% of your clients will have very little in the way of a weekly disposable income (i.e. what’s left over when living expenses are deducted). They may have a few pounds left over per week. As a matter of principle any fine imposed should be payable within a relatively short finite period (as noted above, in the magistrates’ court 12 months is generally seen as the acceptable maximum period). So often your client’s disposable income of say £5 or £10 a week will effectively cap the level of the fine that can be imposed. A few words about enforcement of fines. At the same time that it fines an adult defendant the Crown Court must fix a custodial term to be served in default of payment (the term depending on the amount of the fine). So, for example, the judge might impose a fine £1,000 with 28 days in custody should D fail to pay. The magistrates’ court will generally not fix a term to be served in default at the time that it imposes the fine (it can only do so on rare occasions). But the magistrates’ court monitors the payment of all fines, and if D fails to pay then ultimately the magistrates’ can send D inside for failing to pay. As counsel you will not generally be involved in proceedings to enforce the payment of fines. But you should always advise a client as to the importance of keeping up payments and that if they get into difficulties they should apply to the court to vary the order. If they don’t pay, the ultimate sanction is custody. 5. Referral orders and reparation orders As can be seen from the table of common sentences, these are non-community sentences exclusive to juveniles. A detailed description is unnecessary as they do not appear on the syllabus. In brief: When a court makes a referral order in relation to a juvenile it simply refers the juvenile to a youth offender panel (consisting of people with an interest in dealing with young people) and – hopefully - has nothing more to do with him. The panel will draw up a ‘contract’ with the youth setting out various requirements aimed at addressing his behaviour. A reparation order can be made in relation to a juvenile of any age, generally requiring him to do unpaid work representing reparation to the victim or the community. G. COMMUNITY SENTENCES If you look back at the table of Common Sentences you’ll see that there is one community sentence for adults (the community order) and one for juveniles (the youth rehabilitation order). A court passing either of these sentences will attach to it one or more of the requirements from a ‘menu’ of possible requirements. The items on the menu are set out in the table. Threshold requirements A court cannot pass a community sentence unless the offence was, on its own or when looked at with other offences, “serious enough to warrant such a sentence.”: s.148 CJA. A court cannot pass a community sentence unless the offence is punishable with custody (so, if the maximum sentence prescribed by statute is a fine, there cannot be a community sentence): s.150A CJA. There is one exception (in s.151). If D has committed a non-imprisonable offence (e.g. using abusive words contrary to s.5 Public Order Act), and is a persistent offender who has been fined at least three times previously since reaching the age of 16, then the court can make a community order (as fining him clearly isn’t working). Important aspects of community orders (i.e. community sentences for adults) Some of the most commonly met aspects of the community order are set out in the following table. We are concentrating on community orders (for adults), as youth rehabilitation orders (for juveniles) are not on the syllabus. But they work in a very similar way. Note that in determining how onerous a community order should be the court may take into account any time the defendant has spent on remand in custody prior to sentence (s.149 CJA). So far as adult community orders are concerned, they must include at least one requirement imposed for the purpose of punishment, or a fine, or both, unless there are exceptional circumstances which would make it unjust (s.177 CJA). So if a drug addict burgles a house and receives a drug treatment order, he must also receive, for example, an unpaid work requirement or a fine. In the right hand column the table sets out some of the maximum/minimum periods specified by statute in respect of specific requirements. You should memorise them. Yüklə 0,8 Mb. Dostları ilə paylaş:
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