Professional Ethics pre-reading (to include student materials for the 1st small group session)
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- Bu səhifədəki naviqasiya:
- COMMUNITY ORDERS (ADULT)
- PROHIBITED ACTIVITY Not to contact a particular person CURFEW
- RESIDENCE May be a probation hostel May be D’s own home FOREIGN TRAVEL PROHIBITION
- ATTENDANCE CENTRE At the centre (which might be a school building) D might participate at weekends in simple physical exercise
- H. CUSTODIAL SENTENCES: GENERALLY “So serious”
- Concurrent and consecutive sentences and the totality principle
- I. CUSTODIAL SENTENCES FOR ADULTS (18+) 1. What’s the maximum sentence adults can receive
- MAGISTRATES’ SENTENCING POWERS FOR ADULTS
- 3. If adults get sent inside, where do they go
- 4. “When will I be released”
- 5. Does time on remand count towards the sentence
- 6. What is remission and how does it work
- 8. “Dangerous offenders”: Extended Sentences for offences of ‘sex and violence’
- The assessment of dangerousness: s.229
- J. CUSTODIAL SENTENCES FOR YOUTHS (10-17)
- K. SENTENCING JUVENILES IN THE ADULT COURT
- L. ANCILLARY ORDERS 1. Compensation
- 5. Registration of sex offenders
- M . what sentence is my client facing
- Practical legal research
- N. Step by step guide to estimating your sentence (Crown Court)
- O. Step by step guide to estimating your sentence (magistrates’ court)
- The Bar Professional Training Course Full Time 2016/2017 Part Time 2016/2018 (Year 1)
COMMUNITY ORDERS
H. CUSTODIAL SENTENCES: GENERALLY “So serious” The general rule is that courts cannot pass any form of custodial sentence unless the offence is “so serious that neither a fine alone nor a community sentence can be justified”: s.152 CJA Sometimes an offence which wouldn’t be that serious on its own, becomes so when it is one of a number of offences for which your client has to be sentenced. Say she is charged with one offence of fraud by obtaining £60-worth of housing benefit by deception. That wouldn’t generally merit a prison sentence. But if she’s done it every week for 18 months and is charged with 78 offences totalling £4680 (or charged with nine offences, with 69 taken into consideration) then a court might say that each offence charged, when looked at with the other offences, is “so serious” as to require a prison sentence. How long? The general principle contained in s.153 CJA is that if the court has to pass a custodial sentence it must be for “the shortest term” that is “commensurate with the seriousness” of the offence/s. That doesn’t much help you when advising a client what sentence he’s looking at. But if a judge has in mind a sentence in the bracket of, say, a year to eighteen months he should remind himself of the principle contained in s.153. Concurrent and consecutive sentences and the totality principle Whenever a court passes a custodial sentence for more than one offence it’s got to decide whether the sentences should run one after the other (consecutively) or at the same time (concurrently). Say a judge is faced with an inexperienced offender who has committed three domestic burglaries. He takes the view that each burglary is worth in the region of 18 months’ imprisonment. He could pass three 18-month sentences to run consecutively – making a total of four and a half years. But if he did that the total sentence would be too long for this course of offending looked at as a whole. In other words, it would offend the “totality principle”. One alternative would be to pass three consecutive sentences of six months each – making a total of eighteen months. But the judge might not want to do that because (a) six months is not enough to mark the seriousness of each burglary looked at individually and (b) a total sentence of eighteen months doesn’t properly reflect the fact that this was a course of offending and not one single offence. So what he might do is pass three concurrent sentences of two years, making a total sentence of two years. That would not offend the totality principle, and the slightly longer sentence for each offence would reflect the fact that it is one of a number of offences and not a one-off. That illustration probably demonstrates that sentencing is not a science. It is therefore very hard to give any rules as to when sentences should run consecutively or concurrently. But certain principles have emerged from the case-law. And the Sentencing Council has provided further guidance in 2012 guideline “Offences Taken Into Consideration and Totality”. Concurrent sentences will normally be appropriate where:
Consecutive sentences will normally be appropriate where (for example):
It should be remembered that, even where it is appropriate to pass consecutive sentences, it is an overriding principle that the total sentence must not exceed what the offences, looked at as whole, are worth (the “totality principle”). I. CUSTODIAL SENTENCES FOR ADULTS (18+) 1. What’s the maximum sentence adults can receive? The offence of murder attracts a mandatory life sentence (life imprisonment for adults aged 21 and over, and custody for life for adults aged 18-20). The judge must set a minimum term before which the offender can be considered for release on licence (unless he considers life should mean life, in which case he will make a ‘whole life order’). For the offence of manslaughter the judge has a discretion to pass a life sentence, but he can pass any lesser sentence (custodial or not) that is appropriate. Most offences are created by statute and generally the statute sets out the maximum sentence the court can pass (anything from life downwards) The Crown Court can pass up to the maximum sentence prescribed by statute. The magistrates’ powers are limited. The table below sets out the powers of magistrates sentencing an adult.
N.B. It is very rare for a court to pass the maximum sentence available (particularly in the Crown Court), and it is rarely appropriate to tell a client in conference what the statutory maximum sentence is. It is your job when advising on sentence to communicate to the client a sensible view as to the likely sentence. You should not be advising a first-time burglar, “You could get anything up to 14 years for this.” 2. Minimum sentences Parliament got fed up with what they saw as a lily-livered judiciary passing lenient sentences for serious offences. So it introduced the idea of “minimum sentences” for certain types of offence. They apply, for example, to particular firearms offences. But for junior barristers the most important ones are these: Class A drug trafficking: s.110 SA If the judge is sentencing an adult for a Class A drug trafficking offence (e.g. supplying cocaine, or possessing ecstasy tablets with intent to supply them) then, unless it would be unjust, he must sentence him to at least seven years if the following condition applies:
Domestic burglary: s.111 SA If the judge is sentencing an adult for a domestic burglary then, unless it would be unjust, he must sentence him to at least three years if the following condition applies:
A judge passing a minimum term under either of these sections can give a discount for a guilty plea provided it doesn’t reduce the term to less than 80% of the minimum term (discount for guilty pleas generally is considered later) Threatening with an offensive weapon or with an article with a blade or point The Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserted into pre-existing Acts these two new offences of threatening someone unlawfully with an offensive weapon or with a bladed/pointed article in such a way as to create an immediate risk of serious harm. The punishment includes a minimum sentence in each case of (in the case of adults) at least 6 months’ custody (unless such a sentence would be unjust). Credit for a guilty plea cannot reduce the sentence to less than 80% of that minimum term. 3. If adults get sent inside, where do they go? If the adult is 18 or over but not yet 21 the sentence will be one of detention in a Young Offender Institution. If the adult is 21 or over the sentence will be imprisonment and s/he will go to an adult prison. If s/he celebrates a 21st birthday whilst serving a sentence of detention in a YOI s/he will be transferred to an adult prison to finish the celebrations and the rest of the sentence there. 4. “When will I be released?” When you go and see your client in the cells after he has received a custodial sentence he will want to know when he will be released. The rules are complex and you do not need to know the details. But you will be able to advise with some confidence if you understand the general principles set out in the next two numbered sections. Note that ‘time spent on remand is included in the syllabus’ whereas the early release provisions (‘remission’) are NOT included. 5. Does time on remand count towards the sentence? Frequently your client will have been remanded in custody for some time before sentence is passed. She may have been in custody from the moment of her arrest. If that is the case and she has faced a jury trial in the Crown Court (and lost) she may have been in custody for many months prior to sentence. Even if a defendant was on bail prior to conviction judges or magistrates sometimes remand them in custody for the two or three weeks prior to sentence whilst reports are being prepared. Your client will want to know whether time spent “on remand” will count towards the sentence. The answer is – generally - yes. The only time that is capable of counting towards the sentence is time spent in custody on the order of a court – so generally not the time spent in the police station after arrest and before the first appearance in the magistrates’ court (s.242 CJA2003). The sentencing magistrate or judge does not have to make any order for time spent on remand to count towards the sentence – it is calculated and applied administratively by the prison (s.240ZA CJA 2003). If, prior to sentence, your client has been on bail subject to an electronically monitored curfew for at least 9 hours a day then the sentencer must give credit for time spent on the curfew, unless it would be unjust to give such credit (which would be rare). The sentencer will have to work out the amount of credit due by reference to the five steps set out in s.240A CJA 2003. You should work it out for him/her. 6. What is remission and how does it work? Remission is a very complex subject, but an extremely important one for your client. Fortunately, it is no longer included in the syllabus. In brief, remission is the reduction of a custodial sentence by administrative action after a court has imposed a determinate sentence. A ‘determinate sentence’ simply means one stated in days months or years (i.e. not ‘life’). Prisoners can lose remission time if they misbehave. So it provides them with an incentive to toe the line whilst they are inside. Assuming your client has behaved, he will automatically be released after serving a proportion of his sentence (often a half of it). However, he will, in most cases, remain on licence (i.e. under supervision) until the completion of the term – and often beyond the completion of the term. 7. Suspended sentences A suspended sentence is a custodial sentence which will never have to be served provided the defendant does not commit another offence for a period of time specified by the court (that period is called the “operational period”). So, the sentence is left hanging over the defendant’s head for a period of time as a deterrent to stop him from re-offending. If he does commit an offence during that period and is subsequently convicted of it the court will almost invariably activate the sentence. Let’s say he gets a four month prison sentence for shoplifting which is suspended for two years. He immediately goes out shoplifting again, is arrested and later convicted. The court might give him 6 months immediate custody for the new offence and activate the suspended sentence on top – 10 months in total. In addition, a court which passes a suspended sentence may attach certain requirements to it - basically, any one or more of the requirements that can be attached to a community order (for the list, have a look back at the “Common Sentences” table). So the court may have ordered the shoplifter to be subject to a rehabilitation activity requirement for a year and complete 40 hours unpaid work. If the defendant doesn’t comply with the requirements (even if he doesn’t actually re-offend) he’s liable eventually to be brought back before the court and to have the custodial sentence activated. The period during which the offender is subject to one or more of these requirements is called the “supervision period”. So, in the case of our shoplifter, the operational period of the sentence is two years, and the supervision period is one year. Note the following about suspended sentences:
8. “Dangerous offenders”: Extended Sentences for offences of ‘sex and violence’ The courts have always had power to deal with people who commit very serious offences by passing long sentences, including life sentences where the statute or common law authorizes it. In recent years the government has provided the courts with additional powers in relation to “dangerous offenders” - offenders who presented a continuing danger to the public, whether or not their present offence was a very serious one of its kind. Under the provisions, offenders who commit offences of sex or violence which would not – under the guidelines – attract very long sentences, might find themselves subject to an ‘Extended Sentence’. To understand the ‘extended sentence’ it is necessary to grasp the fact that when someone is sent to prison for a fixed term, he will usually be subject to statutory provisions which provide for his early release after serving a portion of his sentence. Once released he will be ‘on licence’ (i.e. under supervision) to the end of the sentence. The ‘Extended Sentence’ allows the judge substantially to extend the period of supervision after D’s release beyond the end of his sentence. So, if your client has committed an offence of sex or violence – even a relatively modest one - and has been assessed as “dangerous”, he may qualify for an extended sentence. The offences of sex and violence which might attract an extended sentence are to be found in CJA 2003 schedule15. This schedule includes over 150 offences - nearly all offences of sex and violence capable of attracting 2 years’ imprisonment or more. They are known as “specified offences” – i.e. specified in schedule 15. Right at the start of your career in the criminal courts you’ll be representing people charged with offences of violence and sexual offences. Usually they’ll be fairly minor – a grope on a bus or a punch in the eye in a pub, for example. Bear in mind that whenever D is charged with a sexual offence or one involving some element of ‘violence’ and it is a “specified offence”, then the court will consider whether D is a “dangerous offender”. That involves the court assessing whether there is a significant risk of D causing serious harm to members of the public by committing further such (i.e. specified) offences. If there is such a risk he is a “dangerous offender” and he may find himself the subject of an extended sentence. So when your client is charged with one of these offences – and bear in mind they include relatively lowly offences such as affray and ABH - always be prepared to argue the issue of dangerousness. You are advised to learn the definition of “dangerous” as that definition sets the bar very high: there must be a significant risk of serious harm from further specified offences.
So far as the extended sentences are concerned, you are NOT required to know for this course the provisions relating to when such a sentence can be imposed. J. CUSTODIAL SENTENCES FOR YOUTHS (10-17) As we’ve seen, adults are either sentenced to imprisonment (if 21 or over) or to detention in a young offender institution (if 18, 19, or 20). A custodial sentence for a juvenile is either a detention and training order, or, if over two years, s.91 detention. If a court is passing a mandatory life sentence for murder, the juvenile is ordered to be detained at Her Majesty’s Pleasure. Detention and training order A DTO is the standard custodial sentence for a juvenile. The sentence is measured in months with the permissible periods being 4 months minimum, up to 24 months (maximum). Half of the sentence is served in custody and the remainder under the supervision of a probation or similar officer. Note the following:
s.91 Detention Juveniles usually make their first appearance in the case in the youth court (the branch of the magistrates’ court dedicated to juveniles) and will generally end up being sentenced there. The magistrates in the youth court can sentence the youth to a DTO of up to 24 months. But sometimes a juvenile appears in the youth court charged with a very grave offence – rape or robbery, for example – which may well call for a longer sentence should the defendant plead guilty or be convicted after a trial. In those circumstances the youth court should send the youth to the Crown Court to be dealt with. The Crown Court can sentence the youth to detention under s.91 SA for any period to which it could sentence an adult provided (a) D stands to be sentenced for an offence that could attract up to 14 years in the case of an adult (or for certain other sexual and firearms offences) and (b) no other method (including a DTO) of dealing with the juvenile is appropriate. Note that a sentence can be imposed under s.91 on juveniles aged as young as 10 (contrast the restrictions on DTOs) A Crown Court sentencing a juvenile for an offence of sex or violence will have to consider whether or not the juvenile is a “dangerous offender” (see above). If he is, he may be eligible for an extended sentence. K. SENTENCING JUVENILES IN THE ADULT COURT As you saw in the Introduction, juveniles will generally make their first court appearance in the youth court. However, when they are jointly charged with an adult (e.g. they are charged together with burgling a house) or the charge they face is related to that faced by an adult (e.g. the juvenile is charged with stealing a car and the adult with handling it) then they will appear with the adult in the adult magistrates’ court. If they plead guilty in that court or are convicted in that court after a trial then the magistrates will move on to consider sentence. The adult magistrates’ court has very limited sentencing powers over a juvenile. It can:
If none of these is appropriate it must send the juvenile to the youth court for sentence. The court has the full range of sentencing options at its disposal. If the juvenile has been convicted in the Crown Court (for example, where the youth court declined to deal with the case because of the seriousness of the crime; or where he is jointly charged with an adult who has elected Crown Court trial and the magistrates have sent them to be tried together) the Crown Court can pass any sentence that a youth court could pass – in addition to s.91 detention. L. ANCILLARY ORDERS 1. Compensation In addition to whatever sentence it passes, a criminal court may order D to pay compensation for any personal injury, loss or damage resulting from the offences it is dealing with. Indeed, the court must consider making an order in these circumstances and, if it doesn’t do so, it must give its reasons (s.130 SA). As with a fine, the order can be enforced by a custodial term in default of payment. This regime does not generally apply to damage caused in road traffic accidents (often caused by careless driving): the victim will have to look to the offender’s insurer or (if he is uninsured) the Motor Insurers’ Bureau Scheme. There is no upper financial limit to the Crown Court’s or the magistrates’ court’s power to order compensation. In fixing the amount of compensation the court will obviously have regard to the extent of the injury, loss, or damage, as would a civil court: but it must, unlike a civil court, also have regard to D’s ability to pay. So, just as it does when imposing a fine, the court will look to D’s disposable assets and income and give him time to pay what he can within a finite period (see “fines” above). It is possible for a court to deal with an offence solely by way of a compensation order. Where, for example, D has vandalised some public property, compensation in the sum of £1,000 for the clean-up might be seen as a sufficient way of dealing with it: D is providing reparation for the offence, and the amount of money he is having to pay will also be felt by him as a punishment. It is because compensation can be both punitive and reparative that s.130 gives compensation priority over a fine (which is only punitive), requiring any fine to be reduced or dispensed with altogether to allow compensation to be paid. 2. Costs Where D is convicted, or fails in his appeal, the court can order him to pay to the prosecution such costs as appear ‘just and reasonable’. There is rarely a dispute about the amount of costs incurred by the prosecution. However, a convicted defendant is often not ordered to pay the entirety of the costs incurred, because the court must consider D’s ability to pay. In considering that question the court must look to D’s disposable assets and income after taking into account any compensation and fine he has been ordered to pay. 3. Confiscation orders The government has for a long time been concerned to prevent criminals benefitting from their crimes. A six year prison sentence might not seem so unpalatable if the prisoner can return to his mansion, Mercedes and bulging bank balance at the end of it (or half of it – with remission). So the sentencing regime has made provision for the confiscation of a criminal’s assets. The Proceeds of Crime Act 2002 replaces previous confiscation schemes. The power to make a confiscation order is exercisable only by the Crown Court, either when a defendant has been convicted before that court, or when he has been committed to that court for sentence by the magistrates. If the prosecutor invites the court to hold an inquiry with a view to making a confiscation order then the court must hold that inquiry. In the course of that inquiry the judge must ask the following questions:
4. Forfeiture orders Under s.143 SA a criminal court has power to make a forfeiture (or deprivation) order in relation to any property used, or intended to be used, by him to help him commit an offence, provided the property was in his possession or control at the time of his arrest or summons or was lawfully seized from him. Similarly, if D has been convicted of an offence of unlawfully possessing property (e.g. a weapon) the court can order the thing to be forfeit under this section. The court is not obliged to make a forfeiture order and must consider whether the effect of the order would be to “over-punish” D. Say D has used his £1,000 car to commit a series of high-value burglaries. It may be appropriate to send him to prison and to forfeit his car. But if he has used his £20,000 car to commit one minor non-domestic burglary which only merits a fine, it would clearly be disproportionate to order forfeiture of the vehicle. Note that an order under s.143 does not apply to real property (if D used him home to store stolen goods, the court cannot forfeit his home). And it does not affect the rights of other people in the property. For this reason it is best used in uncomplicated cases where it is clear D has the only proprietary interest in the property. Another commonly used power to forfeit is found in s.27 Misuse of Drugs Act 1971. This empowers a court dealing with a drugs offence to order forfeiture of anything which the court is satisfied relates to the offence – e.g. the drugs, the drugs paraphernalia, etc. 5. Registration of sex offenders You will be aware that certain categories of sex offender (they are listed in Schedule 3 of the Sexual Offences Act 2003) are required to notify the police of their address (and other personal details) following conviction and thereafter to notify them of any changes of name and address for a period determined by reference to the sentence passed. If, for example, an adult has been sentenced to five years’ imprisonment for an offence of rape then the requirement lasts for life. If he has been sentenced to twelve months for possessing indecent photographs of children, the period is seven years. This is not strictly an ancillary order as the court doesn’t have to make any order. The liability arises by virtue of the conviction and sentence. M. what sentence is my client facing? Up to now we have been considering the powers of the court. The rest of this handout considers how to work out what sentence your client is likely to receive. Acts of Parliament alone don’t help much in answering this question. They might tell you the maximum sentence your client can receive - but it’s rare he’ll be looking at anything like the maximum. Also, Acts of Parliament say things like
- But how do you know if it’s that serious?
- Ditto?
- Increase what sentence? And by how much?
- Ditto? Ditto? So, where does a barrister find the answer?
After a while in practice the criminal practitioner will start to develop a pretty reliable gut instinct about the sentence the client’s looking at. Until that time arrives s/he will have to...
That may sound facetious, but in practice barristers will often ask around in chambers if it’s an offence they don’t have much experience of - in addition to researching the law themselves. Unfortunately there’s a limit to which you can ask around on this course, because the work you produce must be your own. So...
You need to develop a gut instinct as to how a sentencing court might approach the type of case that you are considering. Every time you have to advise on or present a criminal case on this course you should research sentence as extensively as time allows - whether you are making a bail application, presenting a mode of trial/allocation argument, advising in conference, preparing for a trial, or preparing for an assessment. Always research sentence. The following notes will help you. The General Approach Always start by considering the seriousness of the offence. In assessing offence seriousness you always be considering the harm caused by your client and your client’s culpability (intentional harm, for example, will always be more culpable than reckless harm): s.143 CJA. This process of assessing the offence’s seriousness will require you to look at the particular circumstances of your offence and make a list of facts which mitigate it seriousness (e.g. it was spontaneous rather than planned) and list of factors that aggravate its seriousness (e.g. the victim was particularly vulnerable). You will find a list of common mitigating and aggravating features of offences at paras 1.22-25 of SC Guideline “Overarching Principles: Seriousness”. Familiarise yourself with them. In addition to these matters, note that statute specifically requires the court to take into account the following as aggravating features of the offence:
Having considered all of the factors which affect the offence’s seriousness, you should consider any mitigating features personal to your client (e.g. he has shown remorse; it will destroy his career if he goes to prison) Finally, you should consider what percentage deduction will be required if your client has pleaded guilty. Note that statute specifically requires the court to take into account the stage at which D pleaded guilty and the circumstances of the plea (s.144 CJA). The SC have issued an important guideline on reduction of sentence for a guilty plea. You should have regard to it and to the further guidance offered in the case of R v Caley [2012] EWCA Crim 2821. Generally an offender can expect a discount of between a third and a tenth, depending on how soon the plea was entered. However, note the following. First, where the case against the defendant, quite apart from any admissions by him, was overwhelming he might only be entitled to a 20% discount, even if he pleaded guilty as soon as he could. Secondly, remember (see C3 above) that a defendant who loses a Newton hearing will not receive full credit. The Research There are three principal sources of guidance for sentencers. Each of them will help you to assess the offence’s seriousness:
The starting point for your research will depend on whether your client is being sentenced in the magistrates’ court or the Crown Court: if in the magistrates’ court you will start with the Magistrates’ Court Sentencing Guidelines; if in the Crown Court you will generally start with the Sentencing Council (or Court of Appeal) Guidelines. The Sentencing Council (SC) is the statutory body charged with function of issuing sentencing guidelines for specific offences. Prior to 2003 responsibility for issuing guidelines lay with the Court of Appeal (Criminal Division). It should be noted that they are ‘guidelines’ and not ‘tramlines’ (to use the words of Lord Judge CJ). Section 125 Coroners and Justice Act 2009 gives the court some discretion: it requires the court to follow the guideline “unless it would be contrary to the interests of Justice to do so.”
These have been issued by the SC for the benefit of magistrates when considering sentence for common summary-only and either-way offences. Dozens of offences are dealt with, in alphabetical order. They are in the supplement to Blackstone’s and are accessible by clicking on the “visit the magistrates’ court sentencing guidelines” tab on the SC home page. Obviously you will refer to these guidelines when your client is due to be sentenced for a summary offence (e.g. threatening behaviour, contrary to s.4 of the Public Order Act). In addition, when your client is appearing in the magistrates’ court charged with an either way offence you may have to refer to the guidelines in the following circumstances:
When you are in the Crown Court you need to check whether the Sentencing Council (or its predecessor) has issued a specific definitive guideline for the offence you are dealing with. Definitive guidelines can be found in the Supplement to Blackstone’s and on the SC website. On the SC home page click on the “download a guideline”” tab. If the Council has not yet issued a definitive guideline for the offence you are dealing with you will have to do some further research. If it is an either-way offence which is not very serious a good starting place is the Magistrates’ Court Guidelines. If it is an offence which is covered in the Magistrates’ Sentencing Guidelines and the case is one which clearly would have fallen within the magistrates’ sentencing powers the judge will follow that guideline. If there is no definitive SC guideline and your either-way offence is clearly too serious to be covered by the Magistrates’ Guidelines (handling jewellery worth £100,000, for example), or your client is being sentenced for an indictable-only offence, then you will have to find out if there exist any Court of Appeal Guidelines
In the event just described in the last paragraph, a good starting point for your research will be to look up the offence charged in section B of Blackstone’s. There you will generally find reference to any guideline case. If, for example, you look up handling stolen goods (at B4.120 onwards in the 2015 edition) you will find a section on sentence (at B4.164 onwards) and reference to the guideline case of R v Webbe [202] 1CrAppR (S) 82. Alternatively (or in addition) you can look up the offence in Current Sentencing Practice (published by Sweet and Maxwell). In its hard copy form it is a loose leaf encyclopaedia of important cases on sentence. Guidance on how to use the electronic version is given below. N. Step by step guide to estimating your sentence (Crown Court) Where SC Guideline Exists The best way to get your head around SC guidelines is to use them. So, for the purpose of this exercise we’ll choose an offence for which there is a definitive guideline. Your client has pleaded guilty to ABH. He was called a ‘prick’ by a man outside a nightclub for no particular reason. He punched the man to the ground and kicked him twice to the body, causing minor injury. The man’s girlfriend was present and was extremely distressed. Your client has a previous conviction for affray, following a fight at a football match two years ago. He was given a community order which he has completed. When interviewed by the police for the present offence he showed genuine remorse. Go to the “Assault Definitive Guideline” (on the SC website or the supplement to Blackstone’s) and find the guideline on s.47 ABH. STEP 1 This guideline, in common with most others, creates ‘categories of seriousness’ for ABH offences. You need to determine which of the categories this ABH falls into. This requires you to assess the degree of D’s “culpability” and the level of “harm” caused by reference to the factors listed under Step 1 of the guidance. In this case the level of harm appears to be “less serious”. But there appears to be a higher level of culpability owing to the presence of one particular factor – the kick (a kick with a shod foot, according to the guideline, equates to the use of a weapon). So this is category 2 offence – lesser harm and higher culpability. STEP 2 The range of sentencing for a category 2 offence is a low level community order up to 51 weeks’ custody. There is a given starting point of 26 weeks’ custody. So you start with that, and then adjust upwards to 51 weeks and downwards to a low level community order by looking to see whether any of the aggravating or mitigating features mentioned in step 2 are present. Note that the list of features is not exhaustive: so you can include factors not on the list. The aggravating features are a) his previous conviction for violence and b) the presence of the victim’s girlfriend. The mitigating features are a) his remorse, b) the fact that it was an isolated incident, and c) (not on the list) a minor degree of provocation. Here the aggravating and mitigating features more or less balance each other out, so he may be looking at custody. It’s pretty borderline. The judge will have to ask herself whether the custody threshold has been passed, and, if it has, whether she can suspend the sentence. STEP 3 [Forget the Step 3 mentioned in the guideline – you don’t need to know it for this course] Reduce the sentence by one third for his plea of guilty at the first opportunity (see above) Where No SC Guideline Where there is no SC guideline you will have to research the decisions of the Court of Appeal, and in particular seek out any guideline cases (before you do that make a list of what you regard as the aggravating/mitigating features). Start off by looking up the offence charged in Section B of Blackstone’s (see above). In addition you should look up the offence in Current Sentencing Practice. CSP is a loose leaf encyclopaedia like Kemp and Kemp. It is easier to use it on line. You’ll see how it works by following through an example. Pretend you are representing someone charged with a serious public order offence such as riot or violent disorder which was clearly pre-planned. He is clearly going to be sentenced in the Crown Court. You have checked the SC website and found that there are no guidelines. Just a few words before you start…. When you get to the folder dealing with your offence there may or may not be a guideline case. If there is, read it. But also look at the section on “recent decisions” in that category of offence because you may find one that’s on all fours with your case. If there’s no guideline case then read through the “recent decisions” section to get an idea of the sort of sentence you’re looking at. First, log on to Westlaw (uweintranet homepagelibrary services website databases by subject/A-Z (click on A-Z)W Westlaw Westlaw UK). When you enter the site click on ”Books”” at the top. Then click on Current Sentencing Practice.
O. Step by step guide to estimating your sentence (magistrates’ court) You need to get used to using the Magistrates’ Court Sentencing Guidelines (found in the Supplement to Blackstone’s or on line). In due course they will include up-to-date guidelines for all offences with which magistrates are commonly faced. Work through the case of Gary Manning, imagining that he is a first-time offender (you’ll need to find the guideline for burglary in a dwelling) The fact that he has previous convictions for burglary (one domestic and the other non-domestic) is a serious aggravating feature which may well take the case beyond the magistrates’ powers and persuade them to commit him to the Crown Court for sentence. If he is sent to the Crown Court you will need to refer to the 2012 SC Guideline on burglary offences. SAMPLE SENTENCING MCQs 1. Jason (aged 14) is charged with one offence of robbery (maximum sentence for an adult of life imprisonment). He is a person of previous good character. Which ONE of the following statements is CORRECT? [A] The youth court has no power to pass a custodial sentence on a 14-year-old and for that reason cannot sentence Jason to a detention and training order. [B] The youth court has power to pass a detention and training order on Jason of up to 24 months. [C] The youth court has no power to pass a detention and training order on Jason as he is not a persistent offender [D] The youth court has power to pass a detention and training order on Jason for a minimum period of 4 months. 2. Shameetha (aged 22) was sentenced in January by the Crown Court at Bristol to a community order with a requirement that she perform 200 hours unpaid work. As a result of her failure to comply with the terms of the order she is summonsed to appear today before the Crown Court judge who originally sentenced her. It is proved to the judge’s satisfaction that she failed without reasonable excuse to comply with the requirements of the order. Which ONE of the following statements is CORRECT? [A] The judge cannot revoke the order and impose a sentence of imprisonment, as such a disposal is never available when a community order is breached. [B] The judge can issue a formal warning that if she fails again to comply with the order within the next 12 months she can be brought back before the court and re-sentenced. [C] The judge cannot fine her for the breach. [D] The judge can amend the terms of the original order so as to impose more onerous requirements which he could have imposed when making the original order. 3. Daniel (19) appears at Bristol magistrates' court charged with an offence of theft from a supermarket owned and run by a prominent member of the local Muslim community. Shopkeepers in the area have been complaining for some time that shoplifting is a very prevalent offence in the locality. Daniel was on bail for an offence of assaulting a police officer at the time he committed the theft. In addition, he has two previous convictions – one for theft last year, and one for being drunk and disorderly two years ago. In the circumstances described, which factors is the court is MOST LIKELY to regard as aggravating when passing sentence on Daniel? [A] The fact that he was on bail and his previous conviction for theft. [B] The fact that he was on bail, his two previous convictions, and the prevalence of the offence. [C] His previous conviction for theft, the victim’s membership of a religious group, and the prevalence of the offence. [D] The fact that he was on bail, his two previous convictions, the prevalence of the offence, and the victim’s membership of a religious group. 4. Matthias (aged 21) is appearing in the magistrates’ court to be sentenced for an offence of burglary (an either-way offence). The case crosses the custody threshold Which ONE of the following sentences would the court have NO power to pass? [A] 6 months’ imprisonment suspended for two years, with no additional community requirement. [B] 6 months’ imprisonment suspended for two years, with an alcohol treatment requirement during the operational period. [C] 4 months’ imprisonment suspended for two years, with no additional community requirement but with a fine of £1000 [D] 8 months’ imprisonment suspended for 2 years, with an unpaid work requirement during the operational period. The Bar Professional Training Course Full Time 2016/2017 Part Time 2016/2018 (Year 1) 
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