Sentencing Principles.docx

***[Sentencing Principles -- 3 Q's ]*** *The following are the specific leading case authorities with which students should be familiar (and should be able to refer to by name): Goodyear, Newton.* ***[What is the purpose of sentencing? ]*** The Sentencing Code (SA 2020, s. 57), sets out a list of...

***[Sentencing Principles -- 3 Q's ]*** *The following are the specific leading case authorities with which students should be familiar (and should be able to refer to by name): Goodyear, Newton.* ***[What is the purpose of sentencing? ]*** The Sentencing Code (SA 2020, s. 57), sets out a list of the purposes of sentencing where, by s. 57(1), 'a court is dealing with an offender for an offence, and the offender is aged 18 or over when convicted'. - this wording extends to ancillary orders as well as custodial, community and financial penalties. wording of s. 57(1) cannot apply to corporate offenders. The court must have regard to the following purposes of sentencing--- a. the punishment of offenders, b. the reduction of crime (including its reduction by deterrence), c. the reform and rehabilitation of offenders, d. the protection of the public, and e. the making of reparation by offenders to persons affected by their offences. Section 57(3) limits the scope of this by stating that s. 57(1) does not apply to an offence in relation to which a 'mandatory sentence requirement' applies (see s. 399) nor in relation to a hospital order (with or without a restriction order), an interim hospital order, a hospital direction or a limitation direction (orders under the Mental Health Act 1983). Nor does s. 57 apply in relation to an offender who is aged under 18 at the time of conviction. Offenders aged under 18 are the CDA 1998, s. 37 - which states that the principal purpose of the youth justice system 'is to prevent offending by children and young persons', and the statutory duty under the CYPA 1933, s. 44, to 'have regard to the welfare of the child or young person'. The court **should consider which of the five purposes of sentencing it is seeking to achieve through the sentence that is imposed.** More than one purpose might be relevant and the importance of each must be weighed against the particular offence and offender characteristics when determining sentence \(1) Every court --- a. must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and b. must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so. Sentencing Council for England and Wales. - Section 120 requires the Council to prepare sentencing guidelines, which may be general in nature or limited to a particular offence, particular category of offence, or particular category of offender. - By s. 121, the sentencing guidelines should specify the 'offence range' appropriate for a court to impose on an offender convicted of that offence and, if the guidelines describe different categories of case, specify for each category a 'category range' within the offence range. - The guidelines should also specify the 'starting point' within the offence range or within each category range. ***[Sentencing Guideline -- ]*** - For sentencing offences for which there is no offence specific sentencing guideline, and - For use in conjunction with offence specific sentencing guidelines ***[Step 1 -- Reaching a provisional sentence -- ]*** a. Where there is no definitive sentencing guideline for the offence, to arrive at a provisional sentence the court should take account of all of the following (if they apply): - the statutory maximum sentence (and if appropriate minimum sentence) for the offence - sentencing judgments of the Court of Appeal (Criminal Division) for the offence; and - definitive sentencing guidelines for analogous offences. court will be assisted by the parties in identifying the above. for the avoidance of doubt the court should not take account of any draft sentencing guidelines. When considering definitive guidelines for analogous offences the court must apply these carefully, making adjustments for any differences in the statutory maximum sentence and in the elements of the offence. This will not be a merely arithmetical exercise. b. Where possible the court should follow the stepped approach of sentencing guidelines to arrive at the sentence. The seriousness of the offence is assessed by considering: - the culpability of the offender and - the harm caused by the offending. c. The initial assessment of harm and culpability should take no account of plea or previous convictions. The court should consider which of the 5 purposes of the sentencing it is aiming to achieve. ***[Step 2 -- Aggravating and mitigating factors -- ]*** **Once a provisional sentence is arrived at the court should take into account factors that may make the offence more serious and factors which may reduce seriousness or reflect personal mitigation.** - Identify **whether a combination of these or other relevant factors** should result in any **upward or downward adjustment** from the sentence arrived at so far. - It is **for the sentencing court to determine how much weight should be assigned to the aggravating and mitigating factors** taking into account all of the circumstances of the offence and the offender. - **Not all factors that apply will necessarily influence** the sentence. - When **sentencing an offence for which a fixed penalty notice was available the reason why the offender did not take advantage of the fixed penalty will be a relevant consideration**. \[see SG2-20\] ***[What about fines? ]*** The court should determine the appropriate level of fine in accordance with this guideline and section 125 of the Sentencing Code, which requires that the fine must reflect the seriousness of the offence and that the court must take into account the financial circumstances of the offender. **Where possible, if a financial penalty is imposed, it should remove any economic benefit the offender has derived through the commission of the offence including:** - avoided costs - operating savings - any gain made as a direct result of the offence. The fine should **meet, in a fair and proportionate way, the objectives of punishment**, deterrence and the **removal of gain derived through the commission of the offence**; it **should not be cheaper to offend than to comply with the law**. In considering economic benefit, the court **should avoid double recovery**. Where the **means of the offender are limited, priority should be given to compensation (where applicable) over payment of any other financial penalty**. Where it is **not possible to calculate or estimate the economic benefit, the court may wish to draw on information from the enforcing authorities about the general costs of operating within the law**. When sentencing **organisations, the fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with the law.** The court should ensure that the effect of the fine (particularly if it will result in closure of the business) is proportionate to the gravity of the offence. Obtaining financial information: **It is for the offender to disclose to the court such data relevant to their financial position as will enable it to assess what they can reasonably afford to pay. If necessary, the court may compel the disclosure of an individual offender's financial circumstances pursuant to section 35 of the Sentencing Code.** In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information**, the court will be entitled to draw reasonable inferences as to the offender's means from evidence it has heard and from all the circumstances of the case. In setting a fine, the court may conclude that the offender is able to pay any fine imposed unless the offender has supplied financial information to the contrary.** ***[What factors increase the seriousness of the offence? ]*** *Statutory aggravation factors --* - **Previous convictions** having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction - Offence committed **whilst on bail** - Offence motivated by, or demonstrating hostility based on any of the following **characteristics or presumed characteristics of the victim: religion, race, disability, sexual orientation, or transgender identity** - Offence was **committed against an emergency worker acting in the exercise of functions as such a worker**. *Other aggravating factor --* - Commission of offence whilst under the influence of **alcohol or drugs** - Offence was committed as **part of a group** - Offence involved use or **threat of a weapon** - **Planning** of an offence - Commission of the **offence for financial gain** - **High level of profit** from the offence - **Abuse of trust** or dominant position - **Restraint, detention or additional degradation** of the victim - **Vulnerable** victim - Victim was **providing a public service or performing a public duty at the time of the offence** - Other(s) **put at risk of harm by the offending** - **Offence committed in the presence of other**(s) **(especially children)** - Actions after the event including but not limited to **attempts to cover up/conceal evidence** - **Blame wrongly placed** on other(s) - **Failure to respond to warnings or concerns expressed** by others about the offender's behaviour - **Offence committed on licence or while subject to court order(s)** - Offence committed in **custody** - Offences **taken into consideration** - Offence committed in a **domestic context** - Offence committed in a **terrorist context** - **Location and/or timing** of offence - **Established evidence of community/wider impact** - **Prevalence** *Factors reducing the seriousness or reflecting personal mitigation --* - **No previous convictions** or no relevant/recent convictions - **Good character and/or exemplary conduct** - Remorse - Self-reporting - **Cooperation with the investigation/ early admissions** - **Little or no planning** - The **offender was in a lesser or subordinate role if acting with others/performed** limited role under direction - Involved **through coercion, intimidation or exploitation** - **Limited awareness or understanding of the** offence - **Little or no financial gain** - **Delay since apprehension** - **Activity originally legitimate** - **Age and/or lack of maturity** - **Sole or primary carer for dependent relatives** - **Physical disability or serious medical condition** requiring urgent, intensive or long-term treatment - **Mental disorder or learning disability** - **Determination and/or demonstration of steps having been taken to address addiction or offending behaviour** ***[Step 3 -- Consider any factors which indicate a reduction for assistance to the prosecution]*** - The court should take into account section 74 of the Sentencing Code (reduction in sentence for assistance to prosecution) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator ***[Step 4 Reduction for guilty pleas]*** The court should take account of any potential reduction for a guilty plea in accordance with section 73 of the Sentencing Code and the guideline for Reduction in Sentence for a Guilty Plea ***[Step 5 Dangerousness]*** Where the offence is listed in Schedule 15, Schedule 18 and/or Schedule 19 of the Criminal Justice Act 2003 The court should consider: 1. whether having regard to the criteria contained in Chapter 6 of Part 10 of the Sentencing Code it **would be appropriate to impose an extended sentence** (sections 266 and 279) and 2. whether having regard to sections 273 and 283 of the Sentencing Code it would be **appropriate to impose a life sentence.** When sentencing offenders to a life sentence under these provisions, **the notional determinate sentence should be used as the basis for the setting of a minimum term**. ***[Step 6 Special custodial sentence for certain offenders of particular concern]*** - Where the offence is listed in **Schedule 13 of the Sentencing Code and the court does not impose a sentence of imprisonment for life or an extended sentence, but does impose a period of imprisonment, the term of the sentence must be equal to the aggregate of the appropriate custodial term and a further period of 1 year for which the offender is to be subject to a licence** (sections 265 and 278 of the Sentencing Code). See the Crown Court Compendium, Part II Sentencing S4-3 for further details. ***[Step 7 Totality principle]*** - If sentencing **an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the overall offending behaviour in accordance with the Offences Taken into Consideration** \[see SG3\] and Totality \[see SG4\] guidelines. ***[Step 8 Compensation and ancillary orders]*** - In all cases the court should consider whether to make compensation and/or other ancillary orders. - Where the offence involves a firearm, an imitation firearm or an offensive weapon the court may consider the criteria in section 19 of the Serious Crime Act 2007 for the imposition of a Serious Crime Prevention Order. - Ancillary orders -- Magistrates' Court \[SG10-5\] - Ancillary orders -- Crown Court Compendium, Part II Sentencing, S7 ***[Step 9 Reasons]*** - Section 52 of the Sentencing Code imposes a duty to give reasons for, and explain the effect of, the sentence. ***[Step 10 Consideration for time spent on bail (tagged curfew)]*** - The court must consider **whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003 and section 325 of the Sentencing Code.** ***[Reduction in sentence for guilty plea -- ]*** This guideline applies to people over 18 and organisations where the first hearing was after 1^st^ June 2017. People under 18 guideline sets out similar provisions. **S73 --** This section applies where a court is determining what sentence to pass on **an offender who has pleaded guilty to an offence in proceedings before that or another court.** The court must take into account the following matters--- a. the stage in the proceedings for the offence at which the offender indicated the intention to plead guilty, and b. the circumstances in which the indication was given. If the **court imposes a serious terrorism sentence in relation to the offence**, nothing in section 268C(2) or, as the case may be, 282C(2) **prevents the court, after taking into account any matter referred to in subsection (2), from imposing as the appropriate custodial term a term of any length which is not less than 80 per cent of the term** which would otherwise be required. If--- a. a mandatory sentence requirement applies in relation to the offence (see section 399) by virtue of a provision mentioned in subsection (4), and b. the offender is aged 18 or over when convicted, the mandatory sentence requirement does not prevent the court, after taking into account any matter referred to in subsection (2), from imposing any sentence which is not less than 80 per cent of the sentence which would otherwise be required by that requirement. The provisions referred to in subsection (3)(a) are--- a. section 312 (minimum sentence for threatening with weapon or bladed article); b. section 313 (minimum of 7 years for third class A drug trafficking offence); c. section 314 (minimum of 3 years for third domestic burglary); d. section 315 (minimum sentence for repeat offence involving weapon or bladed article). If--- a. a mandatory sentence requirement applies in relation to the offence by virtue of--- i. section 312, or ii. section 315, and b. the offender is aged 16 or 17 when convicted,the mandatory sentence requirement does not prevent the court from imposing any sentence that it considers appropriate after taking into account any matter referred to in subsection (2). The guideline explains that 'although a guilty person is entitled not to admit the offence and to put the prosecution to proof of its case, an acceptance of guilt (a) normally reduces the impact of the crime upon victims, (b) saves victims and witnesses from having to testify, and (c) is in the public interest in that it saves public time and money' (part B, Key Principles). Reduction for plea is a separate matter from remorse and other aspects of mitigation, and is separate from any reduction which may be appropriate to reflect assistance to the prosecuting or enforcement authorities. Court of Appeal said that the **judge had erred in conflating the reductions for guilty plea, and for matters of personal mitigation, into a single overall reduction.** The guideline makes it clear that the benefits of a guilty plea 'apply regardless of the strength of the evidence against an offender', and so **'the strength of the evidence should not be taken into account when determining the level of reduction'**. This is an important change from earlier practice, where a reduced discount was often given in such cases. The guideline applies only to the punitive elements of the sentence, and has no impact on ancillary orders, including orders of disqualification from driving. The guideline (part C: The Approach) indicates that the court should determine the appropriate sentence for the offence(s) in accordance with any offence-specific sentencing guideline, determine the level of reduction for a plea of guilty, state the amount of that reduction, apply the reduction, and then follow any further steps in the offence-specific guideline to determine the final sentence. s\. 52(7), states that where, as a result of taking into account any matter referred to in s. 73(2), the court imposes a punishment on the offender which is less severe than it otherwise would have imposed, it must state that fact. Court of Appeal stressed that 'a judge should, when a defendant has pleaded guilty, indicate whether he is giving credit \[and\] how much credit is afforded'. Where multiple offences are being sentenced on the same occasion clarity requires that the proper reduction is made in respect of each sentence, rather than the sentences being totalled and reduction applied to the total, even if arithmetically this would produce the same final sentence. if D has entered pleas to different offences at different stages the court may decide whether to give differing levels of credit as appropriate or to take a view across the offences as a whole and make the same reduction for each offence. there was a duty on both prosecuting and defence advocates to alert the court as to any arithmetical error made by the judge as to the credit to be afforded for a guilty plea. If, exceptionally, a judge decides that it would be contrary to the interests of justice to follow the guideline, the judge must provide clear reasons for that departure. The guideline (part D: Determining the Level of Reduction) indicates that **the maximum level of reduction in sentence for a guilty plea is one-third, which is applicable (subject to the exceptions indicated below) where a guilty plea is indicated at the 'first stage of proceedings.** The first stage 'will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court'. Where the plea of **guilty is indicated after the first stage of proceedings 'the maximum level of reduction is one-quarter'** (again subject to the exceptions below). There is no sliding scale between the reductions of one-third and one-quarter. The **reduction 'should be decreased from one-quarter to a maximum of one-tenth on the first day of trial',** and the reduction **'should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial'.** It should be noted that **in the Crown Court the one-third reduction should not normally be given at the PTPH unless the defendant has pleaded guilty in the magistrates' court or, where an indictable-only offence has been charged, has provided an unequivocal indication of guilt in the magistrates' court.** That justifies a full one-third reduction, even if the defendant has made no admissions at the police interview. An unequivocal indication of guilt can be made even though D indicates that this is on a basis of plea, and whether or not the details of that basis of plea are made available at the first stage of proceedings. - If, however, there is a subsequent Newton hearing, some of the reduction may be lost. If the words 'G indication' are entered in the plea box on the Better Case Management form in the magistrates' court, that demonstrates the defendant's intention, and entitles the defendant to a full reduction. If, however, 'G likely' or 'G likely on a basis' is entered in the box then the defendant is keeping options open and is not so entitled. D was charged with an indictable-only offence and his legal representative had stated 'G (indicated)' on the form. The magistrates' court's legal adviser had recorded that there were no real issues, and that a guilty plea was 'likely'. The Court of Appeal said that D should have been accorded full credit for plea. While it is possible to take a guilty plea into account by reducing a custodial sentence to a community sentence, or reducing a community sentence to a fine, **it is wrong to suspend a prison sentence to reflect a plea of guilty**. If a custodial sentence is justified for the offence the **judge should first adjust it to reflect plea, and only then decide if there are grounds to justify suspension.** The following exceptions (set out in part F of the guideline) apply to the general scheme of reduction for a guilty plea -- 1. Where the court is 'satisfied that **there were particular circumstances which significantly reduced the defendant's ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made**. In considering whether this exception applies sentencers should distinguish between cases in which **it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s)** in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.' This exception is designed to be limited to cases where D genuinely cannot know whether he or she is guilty of the offence charged. Where D1 and D2 (both aged 14) admitted in interview that they had intended to kill the victim, but in each case it was necessary to order psychiatric reports to determine whether a partial defence of diminished responsibility might be available. The Court of Appeal said that the case was very unusual and must not be taken as indicating that full credit would normally be appropriate where a defence of diminished responsibility was pursued. D pleaded guilty to robbery after his PTPH, but on appeal argued that he should have been accorded full credit because he entered his plea as soon as the contents of a psychiatric report were made available to his legal advisers. The Court of Appeal upheld the judge's decision not to accord full credit. There was here no issue of fitness to plead such that a report was necessary before proper legal advice could be given. The suggested mental health issue arose from duress, but these were circumstances in which legal advice could have been given without waiting for the report. D pleaded guilty 17 days before her trial and was given a reduction of 10 per cent. On appeal, defence counsel submitted a series of emails purporting to show that the plea had been delayed while awaiting legal advice, but the Court of Appeal said that the emails did not show a clear decision to accept guilt, and nothing had been communicated to the prosecution or to the court. That was well short of the situation contemplated in the guideline. D was charged with robbery but pleaded guilty to assault on the first day of trial, the judge gave a discount of 10 per cent. The Court of Appeal upheld that decision, noting that discussions had earlier taken place between counsel as to a plea of guilty to assault, but nothing had been said to the judge and no unconditional offer to admit guilt was made. A **reduction of 25 per cent should have been given where D at the PTPH had clearly indicated an intention to plead guilty, but the plea was not formally entered because the prosecution required additional time to review the terms of the indictment.** 2. \[i\]‌n circumstances where an **offender's version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved.** Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction.' Court of Appeal upheld the judge's decision to afford no credit at all to D who had pleaded guilty on the day of trial, where a Newton hearing with witnesses was required, and D's version of the facts was 'roundly disbelieved'. Court of Appeal said that where a **Newton hearing is set down and prepared for, but does not in the event proceed, it is a matter for the judge to decide what reduction**, if any, should be made to the credit to which D would otherwise have been entitled. 3. 'if **an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser offence or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication... was made**...' 'The critical question is when and in what circumstances the defendant first indicates his intention to plead guilty to the offence in question, and the **mere fact that it has not been charged does not mean that full credit will be preserved until it is. The position is most clear where there is a recognized alternative to the charged offence.'** D was charged with wounding with intent. There was discussion between counsel as to a potential plea to unlawful wounding, but that was unacceptable to the Crown. A month later, on the day of trial, the Crown did accept a guilty plea to the lesser offence. The Court of Appeal upheld the judge's decision to accord only a 10 per cent reduction for plea, stating that D could have retained a greater credit if he had made an earlier 'unequivocal indication' of guilt to the alternative offence (as the guideline required), irrespective of the Crown's position at that time. D was charged with OAPA 1861, s. 18 and s. 20, offences in the alternative. At the PTPH the extent of injury to V was unclear because of late service of the medical evidence. D pleaded not guilty to both charges, but it later transpired that V's injury was superficial, and the Crown then accepted a plea of guilty to assault occasioning actual bodily harm. The Court of Appeal said that the judge had been correct to limit the reduction to 15 per cent; at the PTPH D should have entered pleas of not guilty to the matters charged, but guilty to s. 47. The fact that the plea would not have been acceptable to the Crown at that stage was 'beside the point and irrelevant'. In relation to an incident of domestic violence D pleaded guilty at the PTPH to two of the three matters charged, namely theft and taking a conveyance. He denied an offence of false imprisonment although conceding, initially at police interview, many of the underlying facts. **A week later the parties agreed that a guilty plea would be entered to a new charge of controlling and coercive behaviour, and when the case was re-listed D pleaded guilty. The Court of Appeal said that the new charge was not a straightforward alternative to false imprisonment and covered a number of incidents over a period of time while the earlier charge related to just one incident. In all the circumstances the credit for plea should have been 25 per cent.** Where D was charged with conspiracy to supply heroin. The defence statement included a clear admission of conspiracy to apply amphetamine. On the day of trial a count to that effect was included for the first time, and D promptly pleaded guilty to it. He was acquitted by the jury of the heroin offence. The Court of Appeal said that since D had pleaded guilty to the amphetamine offence as soon as it was put, D was entitled to a 20 per cent reduction for plea rather than the 10 per cent normally applicable on the first day of trial. The decision in West (above) was distinguished. 4. Refers to the minimum five-year sentence for certain offences involving firearms that are prohibited weapons under the SA 2020, s. 311. s. 51A did not permit any reduction below that minimum to reflect a guilty plea. 5. fifth exception (para. F5) refers to the special rule set out in s. 73(3) in relation to **reduction for a guilty plea where a minimum sentence requirement listed in s. 73(4) applies and the offender is aged 18 or over when convicted**. The reduction for guilty plea **must not produce a final sentence which is less than 80 per cent** of the minimum sentence. **If the judge has found that it would be unjust in all the circumstances to impose the minimum sentence, the limited reduction permissible under s. 73(3) no longer operates**, and the normal principles in relation to reduction for a guilty plea apply. ***[Offences committed on bail -- ]*** In considering the seriousness of an offence committed while the offender was on bail, the court must--- a. treat the fact that it was committed in those circumstances as an aggravating factor, and b. state in open court that the offence is so aggravated. It appears that the aggravation is particularly acute where the offence committed on bail is of the same type as the offence for which bail was granted. **S. 64 is expressed in mandatory terms**; it must be set against the established sentencing principle that consecutive sentences are appropriate where one offence is committed while the offender is on bail in respect of another. **Operation of these rules together might well result in a disproportionately severe sentence.** Although not within the terms of s. 64, **it has been held to be an aggravating factor if D, being sentenced for two offences, committed the second offence (an aggravated vehicle-taking) after receiving a postal requisition in respect of the first offence (causing death by dangerous driving)**. The Court of Appeal said there was no reason why these circumstances should be treated any differently from offending on bail. ***[Previous convictions -- ]*** This section applies where a court is considering the seriousness of an offence ('the current offence') committed by an offender who has one or more relevant previous convictions. The court must treat as an aggravating factor each relevant previous conviction that it considers can reasonably be so treated, having regard in particular to--- a. the **nature of the offence** to which the relevant previous conviction relates and its relevance to the current offence, and b. the **time that has elapsed since the relevant previous** conviction. Where the court treats a relevant previous conviction as an aggravating factor under subsection (2) **it must state in open court that the offence is so aggravated.** **Convictions accrued after the instant offence was committed are not previous convictions** for the purposes of this provision, and so cannot be taken to aggravate the seriousness of the instant offence. Although relevant and recent previous convictions aggravate the offence, it is wrong to impose a sentence wholly disproportionate to the seriousness of the latest offence purely on the basis of a bad record. - **A case of theft from a shop by a persistent offender, the Court of Appeal said that sentencers may, in the light of previous convictions, depart from the level of sentence indicated by the sentencing guideline**. The Court referred to the **Theft guideline, including the aggravating feature of 'relevant recent convictions \[which\] may justify an upward adjustment,** including **[outside the category range']** In the case of a persistent offender, with whom the range of sentencing methods have been tried and failed, and where there is no current prospect of reform or rehabilitation, punishment and deterrence come to the fore. However, it is not inevitable that the sentence must be longer than the last sentence imposed, and the sentence length must still be proportionate to the offence itself, aggravated as it is by the previous convictions. D had stolen a small sum of money from a blind busker, the Court of Appeal approved the judge's decision to move up one category within the Theft guideline to reflect D's 'extensive previous convictions for similar offending' while also managing to keep the sentence proportionate to the offending. D admitted one offence of stalking and one of witness intimidation, and was sentenced to 44 months' imprisonment. The Court of Appeal upheld the sentence, saying that the judge had been entitled to increase sentence by one guideline category to reflect D's 'abysmal record of threats and violence against women', and that the sentence was proportionate and just. If proceedings for the current offence were instituted before 'IP completion day' (11 p.m. on 31 December 2020) '**relevant previous conviction' in this context means a previous conviction by a court in the UK or a previous conviction in an EU Member State of a 'relevant offence',** or a previous conviction or finding of guilt of a Member State service offence. ***[What about Hostility? ]*** This section applies where a court is considering the seriousness of an offence which is aggravated by--- a. racial hostility, b. religious hostility, c. hostility related to disability, d. hostility related to sexual orientation, or e. hostility related to transgender identity. The court--- a. must treat the fact that the offence is aggravated by hostility of any of those types as an aggravating factor, and b. must state in open court that the offence is so aggravated. So far as it relates to racial and religious hostility, this section does not apply in relation to an offence under sections 29 to 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated offences). For the purposes of this section, an offence is aggravated by hostility of one of the kinds mentioned in subsection (1) if--- \(a) **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---** i. the victim's membership (or presumed membership) of a racial group, ii. the victim's membership (or presumed membership) of a religious group, iii. a disability (or presumed disability) of the victim iv. the sexual orientation (or presumed sexual orientation) of the victim, or (as the case may be) v. the victim being (or being presumed to be) transgender, or \(b) the **offence was motivated (wholly or partly) by---** i. hostility towards members of a racial group based on their membership of that group, ii. hostility towards members of a religious group based on their membership of that group, iii. hostility towards persons who have a disability or a particular disability, iv. hostility towards persons who are of a particular sexual orientation, or (as the case may be) v. hostility towards persons who are transgender. For the purposes of paragraphs (a) and (b) of subsection (4), it **is immaterial whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph.** In this section--- a. references to a racial group are to a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins b. references to a religious group are to a group of persons defined by reference to religious belief or lack of religious belief c. 'membership' in relation to a racial or religious group, includes association with members of that group d. 'disability' means any physical or mental impairment e. references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment f. 'presumed' means presumed by the offender. Section 66 of the SA 2020 is of general application in sentencing**, except that so far as it relates to racial and religious hostility it does not apply where the court is imposing sentence for one of the racially or religiously aggravated offences under the CDA 1998, ss. 29 to 32** (certain aggravated assaults, aggravated criminal damage, certain aggravated public order offences, or aggravated harassment). - The racially or religiously aggravated forms of these offences carry higher maximum penalties. The relevant applicable sentencing guidelines require the sentencer to first identify the appropriate category for the basic offence and then consider the level of racial or religious aggravation involved and apply an appropriate uplift to the sentence. The sentencer should state in open court that the offence was aggravated by reason of race or religion and should state what the sentence would have been without the presence of the aggravating feature. Nor, at least generally, does s. 66 apply where the offender has been convicted of the basic offence where a racially or religiously aggravated version exists. D pleaded guilty to assault occasioning actual bodily harm. The racially aggravated version of that offence had originally been charged as well, but no evidence was adduced on that count and a verdict of not guilty was entered. **The judge passed a sentence of three years' imprisonment on the basis that the assault had been racially aggravated. The Court of Appeal said that it had not been open to the judge to sentence on that basis, since D had not been convicted of the racially aggravated form of the offence. The sentence was reduced to two years, a sentence appropriate for the basic offence.** Court of Appeal upheld the decision of the judge to treat an offence of unlawful wounding as racially aggravated even though the offence of unlawful wounding has a racially aggravated form which was not charged. The Court distinguished McGillivray by pointing out that in O'Leary there **had been a contested trial during which evidence had clearly emerged as to the racial motivation behind the offending.** DPP -- - In circumstances where, on the prosecution version of the facts, the offence is aggravated by hostility towards V based upon one or more of the factors listed in that section, it was difficult to think of circumstances in which a higher sentence would not thereby be justified. **If the presence of the aggravating factor was disputed by the defence, a Newton hearing may well be necessary to resolve the matter** but, even if this is considered to be unnecessary, the **sentencing court would generally be bound to hold a hearing to determine** whether the relevant circumstances existed at the time of the offence so that the required statement in open court that the offence was so aggravated could be made. Reasoning in DPP v Giles, which was a case involving hostility based upon actual or presumed sexual orientation, must apply equally to the other hostility factors listed in s. 66, including racial or religious aggravation in relation to any offence not falling within the statutory racially or religiously aggravated offences, and to other statutory aggravating factors which contain the same wording. D was convicted in the magistrates' court of harassment putting a person in fear of violence (PHA 1997, s. 4(1)), and committed for sentence. D was bi-polar, and a drug addict, but had no previous convictions. The Crown Court judge imposed a community order with a restraining order, but on an application by the Solicitor-General the Court of Appeal said that the sentence was unduly lenient. **The case had been correctly categorised as 2B within the relevant guideline, but a community penalty was insufficient to mark the seriousness of the offending, aggravated as it was by the transphobic and homophobic elements. A sentence of 12 months' imprisonment was substituted but was suspended to reflect D's mental illness and other mitigation.** An assault committed because D believed V to be a paedophile was not an offence aggravated by hostility towards the 'sexual orientation (or presumed sexual orientation) of the victim'; what is now s. 66 was not designed to cover such a case. ***[What about a terrorist connection? ]*** This section applies where a court is considering the seriousness of an offence within subsection (4) or (5). If the offence has a terrorist connection, the court--- a. must treat that fact as an aggravating factor, and b. must state in open court that the offence is so aggravated. For the purposes of this section, an offence has a terrorist connection if the offence--- a. is, or takes place in the course of, an act of terrorism, or b. is committed for the purposes of terrorism. For this purpose, 'terrorism' has the same meaning as in the Terrorism Act 2000 (see section 1 of that Act). An offence is within this subsection if it--- a. was committed on or after the day on which section 1 of the Counter-Terrorism and Sentencing Act 2021 came into force, b. is **punishable on indictment with imprisonment for more than 2 years**, and c. is **not specified in Schedule A1**. An offence is within this subsection if it--- a. **was committed before the day on which section 1 of the Counter-Terrorism and Sentencing Act 2021 came into force,** and b. is specified in Schedule 1. **Where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it must be taken for the purpose of subsections (4) and (5) to have been committed on the last of those days**. Offences listed in sch. 1 (offences committed before the commencement of the Counterterrorism and Sentencing Act 2021, s. 1, where terrorist connection to be considered) are - murder, manslaughter, kidnapping, - OAPA 1861, ss. 4, 18, 23, 28, 29, 30 and 64 - Explosive Substances Act 1883, ss. 2, 3, 4 and 5 - Biological Weapons Act 1974, s. 1 - Taking of Hostages Act 1982, s. 1 - Aviation Security Act 1982, ss. 1, 2, 3, 4 and 6(2) - Nuclear Material (Offences) Act 1983, ss. 1B, 1C and 2 - Aviation and Maritime Security Act 1990, ss. 1, 9, 10, 11 and 14(4) - an offence under Part 2 of the Channel Tunnel (Security) Order - Chemical Weapons Act 1996, ss. 2 and 11; A-TCSA 2001, ss. 47 and 114. Also included are inchoate offences in relation to an offence specified. ***[Schedule A1 -- ]*** - Offences where terrorist connection not required to be considered) are the TA 2000, ss. 11, 12, 15, 16, 17, 17A, 18, 19, 21A, 38B, 39, 54, 56, 57, 58, 58A, 58B and 59; the A-TCSA 2001, s. 113; the TA 2006, ss. 1, 2, 5, 6, 8, 9, 10 and 11; the C-TA 2008, s. 54; the Terrorism Prevention and Investigation Measures Act 2011, s. 23; and the C-TSA 2015, s. 10; also included are inchoate offences in relation to an offence specified. ***[What about general aggravating factors? ]*** - Aggravating factors affecting the seriousness of the offence should always be taken into account when deciding, inter alia, whether an offence is 'serious enough' to warrant a community sentence or 'so serious that neither a fine alone nor a community sentence can be justified'. Each of the Sentencing Council's definitive guidelines sets out at Step 2 a non-exhaustive list of aggravating factors to be taken into account when sentencing for the particular offence. a. Lies told by the offender, whether at police interview or during trial, are not an aggravating factor for sentence. b. However, an offender's public denunciation of allegations made by the victim could amount to an aggravating factor c. but protestations of innocence falling short of denunciation could not do so ***[Mitigation -- ]*** S77 -- **Nothing in any of the basis of opinion provisions prevents a court from mitigating an offender's sentence by taking into account any matters that, in the opinion of the court, are relevant in mitigation of sentence.** **Section 230(2) (threshold for imposing discretionary custodial sentence) does not prevent a court, after taking into account such matters, from passing a community sentence even though it is of the opinion that**--- a. the offence, or b. the combination of the offence and one or more offences associated with it, was so serious that a community sentence could not normally be justified for the offence. Nothing in any of the basis of opinion provisions prevents a court--- a. **from mitigating any penalty included in an offender's sentence by taking into account any other penalty included in that sentence, and** b. **in the case of an offender who is convicted of one or more other offences, from mitigating the offender's sentence by applying any rule of law as to the totality of sentences.** Subsections (2) and (3) are not to be taken to limit subsection (1). In this section **'basis of opinion provision' means** any of the following--- a. section 30 or 33 (pre-sentence reports and other requirements) b. section 124, 125 or 126 (fixing of fine) c. section 179, 180 or 186(3) to (9) (exercise of power to impose youth rehabilitation order, with or without intensive supervision and surveillance or fostering, and other requirements) d. section 204 or 208(3) to (9) (exercise of power to impose community order, and community requirements) e. section 230, 231 or 232 (imposing custodial sentences). ' **[S78 -- ]** Nothing in any of the basis of opinion provisions is to be taken--- \(a) as requiring a court to pass--- i. a custodial sentence, or ii. any particular custodial sentence, on an offender suffering from a mental disorder, or as restricting any power (whether under the Mental Health Act 1983 or otherwise) which **enables a court to deal with such an offender in the manner it considers to be most appropriate in all the circumstances.** In this section--- 'mental disorder' has the same meaning as in the Mental Health Act 1983 (see section 1 of that Act); 'basis of opinion provision' has the same meaning as in section 77. The weight to be given to mitigation is a matter within the discretion of the court and, in particular, the **serious nature of the offence may mean that little weight can be given to what would otherwise be regarded as significant personal mitigation.** The following factors indicate that it may be appropriate to suspend a custodial sentence: i. realistic prospect of rehabilitation, ii. strong personal mitigation, and iii. immediate custody will result in significant harmful impact upon others. Court of Appeal stressed that good character and a clean record can be important personal mitigation. Other standard features of personal mitigation include remorse, youth/immaturity, old age. serious illness of the offender, significant delay since the offence was committed, where this is not the fault of the offender, significant pressure on the offender (short of duress) to commit the offence, determination to address addiction or offending behaviour, and meritorious conduct unrelated to the offence. **Serious adverse impact of a custodial sentence on persons other than the offender (such as young children of a single parent) may be taken into account at the discretion of the court.** ***[What about prevalence? ]*** The seriousness of an individual case should be judged on its own dimensions of harm and culpability, rather than as part of a collective social harm. It would be wrong to further penalise individual offenders by increasing sentence length for committing an individual offence which happens to be prevalent locally. There may be exceptional circumstances that lead a court to decide that local prevalence should influence sentencing levels. **It is essential that sentencers both have supporting evidence from an external source to justify claims that a particular crime is prevalent in their area and are satisfied that there is a compelling need to treat the offence more seriously than elsewhere.** Such evidence may be supplied by the local Criminal Justice Board or emerge from a 'community impact statement'. Sentencing guidelines already took the collective social harm of offending into account. **It was not open to a judge to increase a sentence for prevalence based on the judge's personal view that there was 'too much of this sort of thing going on in this area'.** On the contrary, **there had to be evidence provided to the court by a responsible body or senior police officer, which had to be before the court in the specific case being considered, with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations could be made in connection with that material and, even if such material was provided, the judge would only be entitled to treat prevalence as an aggravating factor if the judge was satisfied that the level of harm caused in the particular locality was significantly higher than that caused elsewhere.** The judge would need to be satisfied that the circumstances could be described as exceptional and that it was just and proportionate to increase the sentence for such factors. Court has stressed that if a judge is minded to pass a deterrent sentence for local prevalence reasons, not only is it necessary that the appropriate evidence be received, but also that the evidence does actually demonstrate a particular local problem. There was a community impact statement, and evidence was received from a senior police officer as to the scale of the local drug supply problem, but in each case the **Court of Appeal was unimpressed, saying that these reports 'showed an all-too-familiar picture of the effects of drug dealing, but not a situation which was so different to elsewhere in the country'**. ***[The totality principle -- ]*** The Sentencing Council's definitive guideline, Totality (see Supplement, SG4-5), states that the **principle of totality comprises two elements:** a. 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.** That 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.** b. It is **usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole.** ***[What about pre-sentence reports? ]*** This section applies where, by virtue of any provision of this Code, the pre-sentence report requirements apply to a court in relation to forming an opinion. If the **offender is aged 18 or over, the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report.** If the offender is aged under 18, the **court must obtain and consider a pre-sentence report before forming the opinion unless---** a. there **exists a previous pre-sentence report** obtained in respect of the offender, and b. the court considers--- \(i) in the circumstances of the case, and \(ii) having had regard to the information contained in that report or, if there is more than one, the most recent report, that it is unnecessary to obtain a pre-sentence report. **Where a court does not obtain and consider a pre-sentence report before forming an opinion in relation to which the pre-sentence report requirements apply, no custodial sentence or community sentence is invalidated by the fact that it did not do so.** ***[What about victim personal statements? ]*** in the context of victims who have incurred psychological harm, together provide guidance on the **relevance of victim personal statements placed before the sentencer on the impact which the offence had on the victim or, in a case where the victim had died, the impact on surviving close family.** Properly formulated statements provide real assistance for the court. They provide a practical way of ensuring that the court will consider the evidence of the victim about the personal impact of the offence. **The process is not an opportunity for the victim to suggest, or discuss, the type or level of sentence to be imposed.** The distinction is important. Victims must be provided with information which **makes it clear that they may make a statement but are under no obligation to do so.** **A judge must not assume that the absence of a victim personal statement indicates an absence of harm.** ***[Medical reports of Medically disordered offenders? ]*** s\. 232, states that **in any case where an offender is or appears to be suffering from a mental disorder, the court must obtain and consider a medical report before passing a custodial sentence other than one fixed by law.** This is subject to s. 232(2), which states that the **court need not order such a report if, in the circumstances of the case, it is of the opinion that it is unnecessary to do so.** Section 232(6) defines 'medical report'. **A medical report is distinct from a pre-sentence report**, and s. 232(7) clearly states that the **ordering of a medical report does not displace the need to order a pre-sentence report under s. 30, or limit the requirement for a court to take into account all information that is available to it about the circumstances of the offence, including any aggravating or mitigating factors**. **Where the mental health of the offender was in issue the court would be assisted by a pre-sentence report and by an appropriate psychiatric or psychological report**. The younger the offender, and the **more serious the offence, the more likely it was that the court would need the assistance of expert reports.** It was important, when such reports were commissioned, **that the issues to which they were relevant should be clearly identified.** As with all matters of case preparation, **early identification of the real issues was important.** ***[The Judicial Indications of a sentence]*** A plea of guilty must be entered voluntarily. If the accused is deprived of a genuine choice as to plea and in consequence purports to plead guilty, the plea is a nullity and the conviction will be quashed on appeal. *The Goodyear approach --* Proper roles in the process are identified for the court, and those responsible for prosecuting and defending. The guidelines also demonstrate the need to take into account the review of any sentence then passed, either by way of an appeal by D or a reference on behalf of the A-G. *What are the responsibilities of the court?* - A court should not give an indication of sentence unless one has been sought by the accused. - However, the court remains entitled to **exercise the power to indicate that the sentence, or type of sentence, on the accused would be the same whether the case proceeds as a plea of guilty or goes to trial, with a resulting conviction.** Where the sentence will vary according to plea, the court should only give an indication as to the sentence following a guilty plea. **An indication as to sentence following trial may put undue pressure on the accused to plead (Clark \[2008\] EWCA Crim 3221). The court is also entitled in an appropriate case to remind the defence advocate that the accused is entitled to seek an advance indication of sentence**. - Where an indication is sought, **the court may refuse altogether to give an indication, or may postpone doing so, with or without giving reasons**. The probability is that the judge would explain the reasons for deferral, and further indicate the circumstances in which, and when, he or she would be prepared to respond to a request for a sentence indication - **If the court refuses to give an indication (as opposed to deferring it), it remains open to the defence to make a further request for an indication at a later stage. However, in such circumstances the court should not normally initiate the process, except where appropriate to indicate that the circumstances have changed sufficiently to permit a renewed application for an indication**. - **Once an indication has been given (CrimPD VII, para. C.6), it is binding and remains binding on the judge who has given it, and it also binds any other judge who becomes responsible for the case**. An indication may cease to be binding where guideline authority from the Court of Appeal alters the appropriate sentencing level (Jalil \[2008\] EWCA Crim 2910, \[2009\] 2 Cr App R (S) 40 (276) ) or where a new definitive sentencing guideline is issued by the Sentencing Council. However, an indication remains binding even where D subsequently absconds and falls to be sentenced also for his failure to attend - If, after a reasonable opportunity to consider his or her position in the light of the indication, the accused does not plead guilty, the indication will cease to have effect. - **Where appropriate, there must be an agreed, written basis of plea, otherwise the judge should refuse to give an indication** the principal feature of an appropriate indication of sentence is that an advance indication should be sought by the defence, and not promulgated by the judge. an indication should not be given that a trial would result in a much longer sentence compared to the one offered if the accused pleads guilty. ***[What are the responsibilities of the defence? ]*** - Subject to the court's power to give an appropriate reminder to the advocate for the accused, the process of seeking a sentence indication should normally be started by the defence. - Whether or not such a reminder has been given, the accused's advocate should not seek an indication without signed written authority that the client wishes to seek an indication. - The advocate is personally responsible for ensuring that the client fully appreciates that (a) he or she should not plead guilty unless he or she is guilty, (b) any sentence indication given by the court remains subject to the entitlement of the A-G (where it arises) to refer an unduly lenient sentence to the Court of Appeal, (c) any indication given by the court reflects the situation at the time when it is given and if a guilty plea is not tendered in the light of that indication, the indication ceases to have effect, and (d) any indication which may be given relates only to the matters about which an indication is sought. - An indication **should not be sought while there is any uncertainty between the prosecution and the defence about an acceptable plea or pleas to the indictment, or the factual basis relating to any plea**. - Any agreed basis should be reduced into writing before an indication is sought (see CrimPD VII, para. C.3, in this regard). - Where there is a **dispute about a particular fact which counsel for the accused believes to be effectively immaterial to the sentencing decision, the difference should be recorded for the court to consider.** - The **court should never be invited to indicate levels of sentence which depend on possible different pleas.** - In the **unusual event that the accused is unrepresented, the accused would be entitled to seek a sentence indication of his or her own initiative, but it would be wrong for either the court or prosecuting counsel to take any initiative in this regard that might too readily be interpreted as or subsequently argued to have been improper pressure**. ***[What are the responsibilities of the prosecution? ]*** As the request for indication comes from the defence, the prosecution are obliged to react to, rather than initiate the process. If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceed to seek an indication, which the court appears minded to give, **prosecuting counsel should remind the court that an indication of sentence should normally not be given until the basis of the plea has been agreed, or the judge has concluded that the case can be properly dealt with without the need for a Newton hearing**. If an **indication is sought, the prosecution should normally inquire whether the court is in possession of or has had access to all the evidence relied on by the prosecution, including any personal impact statement from the victim of the crime, as well as any information of relevant previous convictions recorded against the accused** (CrimPD VII, para. C.4). If the **process has been properly followed, it should not normally be necessary for counsel for the prosecution, before the court gives any indication, to do more than (a) draw the judge's attention to any minimum or mandatory statutory sentencing requirements, and, where applicable or where invited to do so (and as required by CrimPD VII, para. C.4), to any definitive sentencing guidelines of the Sentencing Council or any relevant guideline cases, and (b) where it applies, to remind the judge that the entitlement of the A-G to refer any eventual sentencing decision as unduly lenient is not affected.** In any event, **counsel should not say anything which may create the impression that the sentence indication has the support or approval of the Crown**. Discussion on plea and sentence in chambers -- - Such discussions should take place only 'in the most exceptional circumstances'. - Where they do take place, **the prosecution advocate should if necessary remind the judge of the desirability of an independent record, and should make a full note, recording all decisions and comments.** This note should be made available to the prosecuting authority. - Where there is a discussion on plea and sentence and the prosecution advocate does not believe **that the circumstances are exceptional, the prosecution advocate should remind the judge of the relevant decisions of the Court of Appeal and not take part in any discussion on sentence**. - The **prosecution advocate should not say or do anything which might be taken to agree, expressly or by implication, with a particular sentence**. ***[The process of indication? ]*** - Any sentence indication would normally be sought at the plea and case management hearing, following a written application. - a hearing involving an indication of sentence should normally take place in open court with a full recording of the entire proceedings, and both sides represented, in the presence of the accused (one of the exceptions is where an accused is unaware of being terminally ill). - The court is most unlikely to be able to give an indication in complicated or difficult cases unless issues between the prosecution and the defence have been addressed and resolved. in such cases, no less than seven days' notice of an intention to seek an indication should normally be given in writing to the prosecution and the court. - If an **application is made without notice when it should have been given, the court may conclude that any inevitable adjournment should have been avoided and that the discount for the guilty plea should be reduced accordingly**. - There **should be very little need for the court to be involved in the discussions with the advocates, save to seek better information on any troubling aspect of the case**. An opening by the Crown, or a mitigation plea by the defence, is not envisaged. - The **fact that notice has been given, and any reference to a request for a sentence indication, or the circumstances in which it was sought, would be inadmissible in any subsequent trial.** - **Reporting restrictions should normally be imposed, to be lifted if and when the accused pleads or is found guilty.** Court of Appeal **did not envisage a process by which the judge should give some kind of preliminary indication, leading to comments on it by counsel for the Crown, with the judge then reconsidering the indication, and perhaps raising it to a higher level, with counsel for the accused then making further submissions to persuade the judge, after all, to reduce the indication.** A sentencing judge is not required to further reduce the sentence to reflect personal mitigation advanced after the indication had been given; it was a matter for the judge's discretion. **Court repeated that a court was entitled, in an appropriate case, to resile from an indication given even after an accused had then pleaded guilty, providing that the proceedings remained fair to the accused**. Moreover, if an accused did not take advantage of an indication within a reasonable period (by reference to the circumstances of the case), the accused could not later complain if the judge considered that the indication had ceased to have effect. ***[The sentencing procedure for trial on indictment -- ]*** The procedure which applies following, as appropriate, a verdict or a plea of guilty, and which regulates the sentencing of the offender. - First, there is a **need to ascertain the basis of facts, which is of particular importance where the offender has pleaded guilty and the court has therefore not had the opportunity to form a view of the evidence at trial**. - Secondly, there is a need to consider the character of the offender, to obtain such pre-sentence reports as are appropriate, and to consider such mitigation as is advanced on the offender's behalf, before either sentencing or adjourning sentence in one of a number of ways Sentencing procedure is essentially the same in both the Crown Court and magistrates' courts. ***[Ascertaining the facts of the case -- ]*** Where the offender pleads guilty, **the first stage of a sentencing hearing is for prosecuting counsel to summarise the facts of the offence (CrimPR 25.16(3)).** As well as assisting the court, this informs the offender and the public of how the prosecution put their case. In the **event of split pleas by co-defendants,** the sentencing of the offender who pleaded guilty will **normally be adjourned until the conclusion of the trial of the accused who pleaded not guilty.** If the latter is convicted, the facts will still have to be summarised for the benefit of the one who pleaded guilty. *[Prosecutors' duties in relation to sentencing -- ]* The prosecution adopt a neutral attitude at the sentencing stage, not seeking to influence the court in favour of a heavy sentence. - **Prosecution counsel can only provide evidence of the impact on the victim of the offence for which the offender is to be sentenced** if it accords with the relevant guidelines. - Where the possibility arises of the court making an ancillary order in conjunction with the main sentence (e.g., compensation, deprivation of property, confiscation of the proceeds of crime, or forfeiture of prohibited articles such as drugs or offensive weapons), **counsel is required to address this**. - Prosecution **counsel is under a general duty to assist the court to avoid appealable error**. According to the standards applicable to criminal cases, **this goes beyond ensuring that the judge does not exceed the court's maximum powers and extends to ensuring the court is aware of all relevant statutory provisions, sentencing guidelines and additional guidance from the Court of Appeal.** - Prosecution counsel will **in some cases prepare a 'plea and sentence document' which identifies the aggravating and mitigating factors of the offence and the relevant statutory provisions and sentencing guidelines**. *These obligations are not limited to the prosecution. While ultimately the sentencing judge is responsible for ensuring that the sentence passed met all relevant technical requirements, it is also the duty of all counsel to provide appropriate assistance to ensure that this occurred.* Court of Appeal laid down guidelines for the courts to take into account in considering 'victim personal statements' for the purpose of sentencing -- - '\[i\]n all cases it will be appropriate for a VPS to be referred to in the course of the sentencing hearing and/or in the sentencing remarks'. Procedural fairness requires the defence to be able to consider the contents of the VPS and respond appropriately. - **Victim impact evidence should be provided by way of a witness statement containing up-to-date information**, supplied in good time before sentence ***[Counsels' duty to assist the court -- ]*** - All counsel appearing in sentence cases **must make themselves aware of any legal limitations on the court's sentencing powers and any relevant guidelines as to sentence so as to be in a position to assist the judge if necessary**. - it was emphasised that there was a positive obligation on counsel, both for the prosecution and the defence, to ensure that no order is made which the court has no power to make. - It is the duty of the prosecuting advocate to ensure that the judge does not, through inadvertence, impose a sentence that is outside his powers. *[Factual basis for a sentence -- ]* A considerable body of law has developed dealing with the proper approach to that minority of cases in which there is a dispute about the facts of the offence, in the sense that the prosecution version of how the offence was committed differs from that advanced by the defence in mitigation, albeit that the offender is clearly guilty on either version. This will arise in particular where the defence advance a written factual basis of plea which is not accepted by the prosecution or the court. *[Newton Hearings -- ]* D pleaded guilty to sexual offences, there was considerable dispute between the prosecution and defence as to whether the sexual acts alleged had been consensual. The Court of Appeal indicated three ways in which the judge, in a case where there is such a sharp divergence on the facts of the offence, can approach the 'difficult task of sentencing'. a. It is in certain **circumstances possible to obtain the answer to the problem from a jury.** For example, when it is a question of whether the conviction should be under section 18 or section 20 of the Offences against the Person Act 1861, the jury can determine the issue on a trial under section 18 by deciding whether or not the necessary intent has been proved by the prosecution ... b. The **second method which could be adopted by the judge in these circumstances is himself to hear the evidence on one side and another, and come to his own conclusion**, acting so to speak as his own jury on the issue which is the root of the problem. c. The **third possibility in these circumstances is for him to hear no evidence but to listen to the submissions of counsel and then come to a conclusion. But if he does that, ... where there is a substantial conflict between the two sides, he must come down on the side of the defendant.** In other words where there has been a substantial conflict, the **version of the defendant must so far as possible be accepted.** ***[General approach to factual disputes -- ]*** Where D pleads guilty on a limited factual basis (e.g., accepting guilt of the offence but only on a limited version of the allegations made by the prosecution), the defence should set out the basis of the plea in a written form. Court of Appeal said that **any basis of plea should be in writing, unequivocal and unambiguous**, otherwise the judge is entitled to ignore it. The court should thereby be informed, **ideally in advance of the hearing and at the latest during mitigation, not merely that there is a dispute but that the defence wish to see it resolved in a Newton hearing.** The Court of Appeal would not normally consider an argument that the sentencer had failed to order a hearing unless the possibility of such a hearing was raised unequivocally and expressly in the Crown Court. Prosecution counsel are under a duty to alert the court to the potential need to resolve a factual issue that may affect the appropriate sentence. ***[Duty on the Court to resolve the necessary issue -- ]*** The overriding consideration is that the **offender is sentenced on a basis which the judge considers true and proper** (Beswick \[1996\] 1 Cr App R (S) 343). It follows that even where a **basis of plea is agreed between the parties (or at least not contested by the prosecution), the judge is entitled to require a Newton hearing** if it appears necessary to establish a true and proper basis for sentence. Court of Appeal dealt with the situation where agreement had been reached between prosecution and defence counsel as to the facts upon which a plea of guilty was to be based, and the judge declined to give effect to that agreement. As well as setting out the principle of truth in sentencing, **the court said that the decision to hold a Newton hearing would not justify a defendant who was guilty on either version of events changing plea**. Court of Appeal set out broader guidance on the approach that the sentencer should take to resolve issues necessary for a proper sentence -- - Where the impact of the **dispute on the eventual sentencing decision is minimal, a Newton hearing is unnecessary---**the judge will rarely be concerned with minute differences about events on the periphery. (a judge should sentence on the assumption that the defence version is correct, and expressly say so) - The **court is entitled to decline to hear evidence at a Newton hearing where D's version of events is absurd or clearly unreliable**, but the judge should explain why that conclusion has been reached. - A **written basis of plea should not take the prosecution by surprise, and they should if necessary take time to reflect, consult and consider their position and the interests of justice**. Any **view formed by the prosecution on a proposed basis of plea is deemed to be conditional on the judge's acceptance of it**. - The **prosecution may agree D's account of the disputed facts. If so, the agreement should be reduced to writing and signed by both advocates, which should be available to the judge in advance of the sentencing hearing and before the court is asked to approve the acceptance of plea.** If the agreed basis of plea is not signed by advocates for both sides, or it is not legible, the judge is entitled to ignore it. - If the **prosecution rejects D's version, the areas of dispute should be identified in a document** that **focuses the attention of the court on the precise facts which are in dispute.** The **most difficult situation arises when the prosecution lacks the evidence positively to dispute D's account.** a. In many cases, for example, the matter in issue is outside the knowledge of the prosecution. **The prosecution's position may be that they have no evidence to contradict the defence assertions, but that does not mean that the truth of matters outside their own knowledge should be agreed.** b. Neither the prosecution nor the judge is bound to agree facts merely because the prosecution cannot gainsay D's account (a situation sometimes referred to as a **'reverse Newton').** In those circumstances**, particularly if the facts relied upon by D arise from personal knowledge and depend on D's own account of the facts, the prosecution should only positively agree that account if it is supported by other material.** c. Where the issue **arises from facts that are within D's exclusive knowledge, the defence should be willing to call their client. An adjournment for these purposes is often unnecessary, since D will be present at the hearing.** If D does not give evidence, **the judge may draw appropriate inferences**, subject to any explanation put forward. d. Note that **where D relies on extraneous mitigation there is usually, in practice, considerable deference to the submissions of counsel but the position in principle is that there is a burden on the defence to establish relevant facts to the civil standard** (Guppy \[1994\] Crim LR 614). - Even where the basis of plea is agreed between the parties, **the judge is not bound by any such agreement, and is entitled to insist that any evidence relevant to the facts in dispute should be called**. **In such a case the judge is entitled to expect the assistance of prosecuting counsel in presenting evidence, and in testing any evidence called by the defence.** The agreement which the prosecution have previously entered into with the defence must be viewed as **conditional on the approval of the judge.** If the **judge's approval is not forthcoming, the defence cannot seek to hold the prosecution to the agreement.** However, **before embarking on the trial of an issue, the judge might consider whether, in fairness to D, there is any part of the agreement by which the prosecution should be bound.** - If the **judge decides to hold a Newton hearing, it is important to avoid giving the impression that the judge has already concluded that the defence version is implausible** (Satchell \[1997\] 2 Cr App R (S) 258). - At the Newton hearing itself, **the judge should self-direct, just as a jury would have been directed, on the burden and standard of proof in accordance with ordinary principles.** A **Newton hearing has the following limitations**: a. **some issues require a verdict from a jury, e.g., intent** (see D19.81); b. a **judge cannot make findings of fact and then sentence on a basis that is inconsistent with the pleas to the counts on the indictment** c. where **a number of persons are charged with a joint enterprise, the seriousness and context are always relevant** d. **matters of mitigation are not normally dealt with in a Newton hearing, but where there is no evidence to support D's account other than D's own assertions, the judge is entitled to invite defence counsel to call their client**. - **If issues on a Newton hearing are resolved in D's favour, the credit due for a guilty plea should not be reduced.** However, if D is disbelieved (especially if the prosecution has been obliged to call evidence from a witness causing unnecessary and inappropriate distress), **and the judge concludes that D has no insight into the consequences of the offence and no genuine remorse for it, the discount for a guilty plea may be significantly reduced, particularly if it has been tendered at a very late stage.** There might be an exceptional case in which the normal entitlement to **credit for a guilty plea is wholly dissipated by the Newton hearing, in which case the judge should explain the reasons.** (See now the Sentencing Council's overarching guideline, Reduction in Sentence for a Guilty Plea (see Supplement, SG5-1)). Court of Appeal expressed concern that the sentencing judge had been invited to resolve a factual dispute as to whether or not certain aggravating features were present **without hearing any live evidence.** **a reduction in sentence could be material even if it did not mean a departure from the original category.** In this case, the relevant category had a range between three- and six-years' imprisonment. The sentencer had the positive findings in the Newton hearing well in mind in choosing a notional starting point at the lowest end of that range. The Crown Court has the power, in principle, to hold a Newton hearing even where such a hearing has already taken place in the magistrates' court which committed the offender for sentence. However, there ought to be good reason for it to reopen a factual dispute that has already been resolved elsewhere. ***[What is the procedure of a newton hearing? ]*** The burden of proof is on the prosecution to satisfy the judge beyond reasonable doubt that their version of events is the correct one. It was said that it was better for the judge to self-direct openly, as a jury would be directed, as to the relevant standard and onus of proof, although the failure to do so was not fatal in every case. Once the judge has decided that there should be a Newton hearing, the hearing itself follows normal adversarial lines (per May LJ in McGrath (1983) 5 Cr App R (S) 460 at p. 463). The parties are given the opportunity to call such evidence as they wish and to cross-examine the witnesses called by the other side. The roles of the parties, and the court, do require consideration. **Where the basic facts are not in dispute, the prosecution are not obliged to call any evidence**, and the judge is then entitled to draw any appropriate inferences, provided that any findings are expressed to be in accordance with the burden and standard of proof. - in questioning the offender, the prosecutor should adopt the role of amicus curiae, exploring matters which the court wished to be explored. The prosecution should not leave the questioning to the judge. On the other hand, the defence cannot be forced to call evidence or otherwise participate but may simply observe while the prosecution seek to establish their version to the judge's satisfaction. **D cannot, however, by declining to give evidence, frustrate the exercise which the judge has undertaken so as to ground a subsequent complaint that there has been no Newton hearing.** In order for the judge to avoid giving the impression of having come to conclusions in advance, it will be preferable for judicial questioning to wait until the offender has been examined by defence counsel, and cross-examined by counsel for the prosecution. D had pleaded guilty to violent disorder. On the completion of the trial of his co-offender, a Newton hearing was held to determine identification evidence relating to D's role. The Court of Appeal held that, during that Newton hearing, it was important that the judge should have approached the matter and directed himself as if he were a jury. In particular this required the court: a. to go through the steps which Turnbull \[1977\] QB 224 required the judge to set out when directing a jury; b. to consider the admissibility of identification evidence which breached the PACE codes of practice; and c. to consider the reliability of other aspects of the evidence, e.g., discrepancies between the contemporaneous descriptions and D's appearance. Hence it appears that, **in the context of a Newton hearing: (a) the rules of evidence should be strictly followed, and (b) the judge should clearly express and apply appropriate legal directions as the trier of fact.** ***[What about disputes of fact following verdicts of guilty? ]*** Where D is convicted following a trial, **it is for the sentencer to form a view as to the facts of the offence established by the evidence, and to sentence accordingly. In general, the jury should not be asked to supplement a verdict of guilty by stating the factual basis on which they reached their decision** (Stosiek (1982) 4 Cr App R (S) 205; Solomon (1984) 6 Cr App R (S) 120), although it is open to the prosecution to put counts before the jury that reflect distinct factual bases for conviction of distinct offences (see D20.34). There is a recognised exception to this principle, relating to a verdict of guilty of manslaughter. **After the prosecution summary of the facts, or immediately after the jury's verdict of guilty if it was a not guilty plea, it is the responsibility of the prosecution to adduce evidence about the offender's character and antecedents.** ***[How to sentence for matters for which the accused has not been convicted? ]*** It is a basic principle of sentencing to sentence only for those crimes of which the offender has been convicted and not for anything else. There are **three identifiable exceptions to this principle** where a sentencer may properly be influenced by other offences not officially before the court. These are as follows: a. taking into account **a less serious secondary offence which has not been charged but the commission of which is implicit in, and represents an aggravating feature of, the more serious primary offence** (see Rubinstein (1982) 4 Cr App R (S) 202 at D20.42); b. if the **offender expressly asks for the other offences to be taken into consideration** (see D20.51); and c. **if the prosecution case is that the offences on the indictment are merely samples of a continuing course of conduct and the defence accept that to be so** **This is a common practice.** It is **based upon convention rather than statute or common law. It requires the co-operation of the police, the court and, most importantly, the offender. It operates to the benefit of both the police and the offender.** The police are enabled to clear up numerous offences which might otherwise remain unsolved. The offender is able to 'wipe the slate completely clean' at a minimal cost in terms of increased sentence. As an **alternative to following strictly the procedure for taking other offences into consideration, the prosecution may invite the judge to treat the offences on the indictment of which the offender has been convicted, or to which the offender has pleaded guilty, as samples of a continuing course of conduct.** This is an **attractive course where the offender appears to have committed a large number of similar offences over a protracted period**. Although there is no reason, in such a case, why a list of t.i.c.s should not be prepared as described in D20.51, the list can become inordinately long. - D had claimed social security benefit for four years when ineligible and the t.i.c. procedure resulted in a list of 150 offences. ***[What about reports on the offender? ]*** - After **the prosecution summary of the facts and antecedents' evidence, the court considers any reports that have been prepared on the offender.** These may include pre-sentence reports, medical and psychiatric reports and assessments for suitability for a community sentence. In many cases, it will have been necessary to delay sentencing to allow such reports to be prepared. ***[The Pre-sentence Report -- ]*** In this Code 'pre-sentence report' means a report which--- a. is made or submitted by an appropriate officer with a view to assisting the court in determining the most suitable method of dealing with an offender, and b. contains information as to such matters, presented in such manner, as may be prescribed by rules made by the Secretary of State. 'an appropriate officer' means--- a. where the offender is **aged 18 or over, an officer of a provider of probation services** b. where the **offender is aged under 18---** i. an officer of a provider of probation services, ii. a social worker of a local authority, or iii. a member of a youth offending team. Rules under subsection (1)(b) are subject to the negative resolution procedure. ***[How to obtain a pre-sentence report? ]*** Whereby any provision of this Code, the court is required to obtain a pre-sentence report, it **may accept a pre-sentence report given orally in open court.** But this is subject to--- a. any rules made under subsection (1)(b), and b. subsection (5). A pre-sentence report must be in writing if it--- a. relates to an offender aged under 18, and b. is required to be obtained and considered before the court forms an opinion mentioned in--- i. section 230(2) (seriousness threshold for discretionary custodial sentence) ii. section 231(2) (**determining term of custodial sentence)** iii. section 255(1)(c) (determining risk of harm to public for purpose of extended sentence) iv. section 258(1)(c) (determining risk of harm to public for purpose of required life sentence). Pre-sentence reports on adults are compiled by probation officers. In the cases of children under 13, reports are prepared by local authority social workers. In the cases of those aged 13 to 16 inclusive, responsibility is shared between the probation service and social services, precise arrangements varying from area to area. ***[When should a pre-sentence report be obtained? ]*** places an obligation on the court to obtain a pre-sentence report in two circumstances. a. The court '**shall obtain and consider a pre-sentence report' in determining whether a custodial sentence should be imposed. This is not obligatory,** however, where the **court is of the opinion that it is unnecessary, and the offender is over 18**. In the case of a child or young person**, a pre-sentence report is obligatory unless the court considers it unnecessary and in reaching that decision it has considered any existing pre-sentence report relating to the offender and takes account of the information therein**: see E2.23). b. The **court is required to obtain and consider a pre-sentence report before forming an opinion as to the suitability of an offender for various types of sentence** (for further details, see E12.6), and where the **requirement is for a report to consider the suitability of an offender under 18 for any form of custodial sentence, the report should be in writing.** ***[Medical and Psychiatric reports -- ]*** **It is a pre-condition of the making of a hospital order under the Mental Health Act 1983, s. 37(1) (or an interim hospital order under s. 38), that the court be satisfied on the written or oral evidence of two medical practitioners that the offender is suffering from a mental disorder** within the meaning of the Act such as to warrant the making of an order (see E22.2). Equally, **a report from at least one medical practitioner is required before a custodial sentence is passed on a mentally disordered offender** (CJA 2003, s. 157). Where a **medical report is to be tendered in evidence under the provisions of the Mental Health Act 1983, s. 54(3)(a) requires that a copy be given to the offender's 'authorised person' (normally counsel or solicitor).** If the **offender is unrepresented, the gist of the report should be disclosed although there is no formal entitlement for the offender to have a copy; in the case of a child or young person, the substance of the report must be disclosed to any parent or guardian present in court** (s. 54(3)(b)). The **medical practitioner who made the report may be required to attend for cross-examination** (s. 54(3)(c)). ***[What about mitigation of sentence? ]*** The final stage in the sentencing process before the sentence is pronounced is the presentation of defence mitigation. CrimPR 25.16(6) (see Supplement, R25.16) provides that before passing sentence the court must give the offender an opportunity to make representations and introduce evidence relevant to sentence and, where the offender is under 18, the court may give parents, guardians or other supporting adults, if present, such an opportunity as well. - The plea in mitigation usually consists solely of a speech by defence counsel. **As a matter of discretion, counsel may additionally call witnesses to speak to the offender's generally good character or to explain why, in their view, the offender's criminal conduct occurred.** ***[How to Pronounce sentence? ]*** - After the defence mitigation, **the judge pronounces sentence**. This is often done immediately upon the close of defence counsel's address, **but the judge may retire briefly to consider the appropriate sentence and the expression of sentencing remarks.** In complex or difficult cases there is likely to be a delay, or even an adjournment, between hearing mitigation and pronouncing sentence, especially where written sentencing remarks are to be made available to media representatives, the public or the parties. To pass sentence immediately upon the conclusion of speeches would give the impression that sentence was determined in advance and no consideration had been given to submissions made at the sentencing hearing. *[Giving reasons -- ]* Section 52 of the SA 2020 (see E2.20 for the full text) creates an obligation on the judge to give reasons for, and explain the effects of, the sentence passed a. The court must explain in non-technical terms its reasons for deciding on the sentence passed. b. The court must explain the effect of the sentence, and the consequences of non-compliance. SA 2020, s. 55 --- a court with power to make a **compensation order in an offender's case must explain its reasons for not doing so.** RTOA 1988, s. 47(1) --- where the **court does not order disqualification or endorsement on account of special reasons or hardship.** The need for a judge to say what degree of credit was being afforded for D's guilty plea was emphasised. - The reasoning underlying a sentence is articulated orally in public, even after the court has taken time to consider and to reduce those reasons to writing. ***[Can you defer a sentence? ]*** The **purpose for which sentence may be deferred is to enable the court, when it does deal with the offender, to have regard to:** a. the **offender's conduct after conviction** (including, where appropriate, the offender's making reparation for the offence), or b. any **change in the offender's circumstances**. The court must fix the date to which sentence is deferred, **the maximum period allowed being six months** (s. 5(2)). Subject to an exception mentioned below, sentence may be deferred only once. **Deferment requires the offender's consen**t and the court must be satisfied that exercise of the power would be in the **interests of justice.** The court dealing with the offender after the **period of deferment may exercise any power that the deferring court could have done** (**save to defer again** subject to the **exception that where a magistrates' court defers sentence and then commits for sentence, the Crown Court may also defer sentence).** Where there is a requirement to make a referral order on a young offender (see E4.4), the court may not defer passing sentence. ***[Sentencing in the MC -- ]*** - Sentencing procedure in the magistrates' courts follows the same basic pattern. - The duty on the court, under the CAJA 2009, s. 125, to follow any relevant sentencing guidelines, unless satisfied that it would be contrary to the interests of justice to do so, applies to all courts, including magistrates' courts. ***[Adjournments prior to sentence -- ]*** - A **magistrates' court may, for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case, exercise its power to adjourn after convicting the accused and before sentencing him or otherwise dealing with him**; but, if it does so, **the adjournment shall not be for more than four weeks at a time unless the court remands the accused in custody and, where it so remands him, the adjournment shall not be for more than three weeks at a time**. It is apparent from the words 'at a time' that**, although the maximum period for adjournment after conviction is four weeks on bail or three weeks in custody, the court is not obliged to sentence at the end of the first such adjournment but may, if necessary, adjourn again.** A common reason for adjourning the case prior to passing sentence will be to enable the preparation of a pre-sentence report, especially if the court is considering a custodial sentence or a community order. Where **an offender is granted bail for a post-conviction adjournment, the court may impose a condition that the offender be available for the purpose of enabling inquiries or a report to be made to assist the court in dealing with the offender for the offence** (BA 1976, s. 3(6)(d)), provided that it appears to be necessary to do so for the purpose of enabling inquiries or a report to be made ***[PRESENTING THE FACTS, CHARACTER AND ANTECEDENTS]*** The prosecutor to **summarise the prosecution case, if the sentencing court has not heard evidence** (i.e. if the offender has pleaded guilty, or there has been an adjournment after the offender was convicted following a trial); r. 24.11(3) **then requires the prosecutor to identify any offence(s) to be taken into consideration, and to provide information relevant to sentence (including any aggravating or mitigating factors**, relevant legislative provisions, and any guidelines or guideline cases). **The prosecutor must also draw the court's attention to any statement of the effect of the offence on the victim, the victim's family or others** (i.e. any victim personal statement). Offender must provide details of financial circumstances. - Requires the court, before passing sentence, to give the offender an opportunity to make representations and introduce evidence relevant to sentence. Thus, there will be an opportunity for a plea in mitigation to be made on behalf of the offender. The court which passes sentence need not be compose