Sentencing Principles Blackstone's Reading Notes PDF

22. Sentencing principles ========================= 1. purposes of sentencing and sentencing guidelines 2. assessment of seriousness, reduction in sentence for guilty plea, aggravating and mitigating factors, the totality principle and prevalence 3. pre-sentence reports, medical reports, and victim personal statements 4. indications as to sentence 5. sentencing in the Crown Court 6. sentencing procedure in the magistrates' courts 7. committal for sentence 1. Part 2-13 Sentencing Act 2020 = the 'Sentencing Code' The Sentencing Code applies only to convictions which occur on or after 1 December 2020, but it applies to all convictions on or after that date irrespective of the date of commission of the offence (this has been referred to as the \'Clean Sweep\' approach in the Code). It is important to note that the Code does not apply to the resentencing of offenders in the case of appeals if the conviction pre-dates 1 December 2020. Further, the Code does not apply in relation to breach of an order attaching to a conviction imposed before the commencement date. In those situations the pre-Code sentencing provisions must be used. s\. 57(1), \'a court is dealing with an offender for an offence, and the offender is aged 18 or over when convicted\'. s5(2), 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. The relevant provisions for 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\'. Section 59 SA 2020: (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. The duty on the court to impose a sentence which is within the offence range is subject to s. 73 (reduction in sentences for guilty pleas), ss. 74, 387 and 388 (assistance by defendants: reduction or review of sentence), and any rule of law as to the totality of sentences (s. 60(3)). The duty to \'follow any sentencing guideline\' is a duty to pass a sentence which falls within the \'offence range\' for that offence, as specified in the relevant guideline. The \'offence range\' runs from the top of the highest category range to the bottom of the lowest category range. A court may choose not to follow a particular guideline (by imposing a sentence which falls outside the offence range) if it would be \'contrary to the interests of justice\' to pass a sentence which is within the offence range 2. [S[entencing Act 2020, s. 73]](https://plus.lexis.com/uk/analytical-materials-uk/use-of-absolute-discharge?&crid=8abfa9c2-5409-499c-b682-374cd6dcc71b&config=&pdtocfullpath=/shared/document/analytical-materials-uk/urn:contentItem:5PTJ-0RW1-DYK8-43P3-00000-00&pdcomponentid=fg4k&pdtocnodeidentifier=&ecomp=fg4k&prid=1b95b7d2-9aee-4d8d-bdc1-117e79657b04&rqs=1) (1) 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. (2) 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. The Sentencing Council's Guideline (revised) makes it clear that the benefits of a guilty plea apply regardless of the strength of the evidence and this should not be taken into account. BCP 2024 E2.1 -- E2.2 Noting, at s73(3)(a) it mentions if a mandatory sentence is tied to an offence eg. s312 minimum sentence for threatening with a weapon or bladed article -- then they can impose a sentence that differs BUT it cannot be less than 80% of mandatory sentence that is otherwise required. - s73(5) if mandatory sentence applies but offender pleads guilty and is 16-17yo, then after review any sentence court considers appropriate can be imposed. 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. The SA 2020, 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. In Beckford \[2018\] EWCA Crim 2997, the 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\' (at \[13\]). E2.3 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). 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 D 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. E2.4 **The following exceptions (set out in part F of the guideline) apply to the general scheme of reduction for a guilty plea.** By para. F1, 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. By para. F3, \'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 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 (and see Gray \[2007\] EWCA Crim 979). Alex needs to indicate a guilty plea at the first opportunity to get the full one-third credit. 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\'. Here Alex could indicate a guilty plea in the magistrates' court today, therefore the PTPH will not be the first opportunity. After the first opportunity it will reduced to 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. **BCP 2024 E2.3.** Advise students to make sure that they are clear about this area as a good area to have questions on in the final assessment. [OFFENCES COMMITTED ON BAIL] Sentencing Act 2020, **s. 64** 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 (Jeffrey \[2003\] EWCA Crim 2089). [PREVIOUS CONVICTIONS] Sentencing Act 2020, **s. 65** (1) 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. (2) 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--- (b) the time that has elapsed since the relevant previous conviction. (3) 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. 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 (Byrne \[2012\] EWCA Crim 418; Bailey \[2013\] EWCA Crim 1779). [HOSTILITY] Sentencing Act 2020, s. 66 (1) This section applies where a court is considering the seriousness of an offence which is aggravated by--- (2) The court--- (3) 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). [TERRORIST CONNECTION] Sentencing Act 2020, s. 69 (1) This section applies where a court is considering the seriousness of an offence within subsection (4) or (5). (2) If the offence has a **terrorist connection**, the court--- (3) For the purposes of this section, an offence has a terrorist connection if the offence--- [GENERAL AGGRAVATING FACTORS] (in addition to statutory aggravating factors \^) In addition to the statutory aggravating factors set out at E2.10 to E2.16, the General Guideline: Overarching Principles sets out a list of aggravating factors relevant to sentencing. Some of these reflect higher culpability on the part of the offender, others reflect a more than usually serious degree of harm. Lies told by the offender, whether at police interview or during trial, are not an aggravating factor for sentence (Lowndes \[2013\] EWCA Crim 1747). [GENERAL MITIGATING FACTORS] E2.18 Sentencing Act 2020, ss. 77 and 78 77.---(1) 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. The General Guideline: Overarching Principles sets out a list of mitigating factors relevant to sentencing. Some of these reflect significantly lower culpability on the part of the offender, others that the harm caused by the offence is less than usually serious. Each of the Sentencing Council\'s definitive guidelines sets out at Step 2 a non-exhaustive list of mitigating factors to be taken into account when sentencing for the particular offence. 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 overarching guideline, Imposition of Community and Custodial Sentences, provides that 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. examples: In Seed \[2007\] EWCA Crim 254, the 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 (including beyond the age of 18: Clarke \[2018\] EWCA Crim 185), old age (Clarke \[2017\] EWCA Crim 393), serious illness of the offender (Bernard \[1997\] 1 Cr App R (S) 135; Hall \[2013\] EWCA Crim 82), significant delay since the offence was committed, where this is not the fault of the offender (Beattie-Milligan \[2019\] EWCA Crim 2367), significant pressure on the offender (short of duress) to commit the offence (Lingu \[2013\] EWCA Crim 825), provocation (Batchelor \[2018\] EWCA Crim 2506), determination to address addiction or offending behaviour, and meritorious conduct unrelated to the offence (see, e.g., Alexander \[1997\] 2 Cr App R (S) 74). 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 (Petherick \[2012\] EWCA Crim 2214; Humphries \[2013\] EWCA Crim 1748; Vincent \[2017\] EWCA Crim 333) as may the offender\'s pregnancy, especially if the birth would otherwise occur during the custodial part of a prison sentence (Charlton \[2021\] EWCA Crim 2006). [PREVELANCE ] 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. This principle has been endorsed by the Court of Appeal in many cases including Oosthuizen \[2005\] EWCA Crim 1978, Bondzie \[2016\] EWCA Crim 552 and Khalid \[2017\] EWCA Crim 592. 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. [CONCURRENT AND CONSECUTIVE DETERMINATE CUSTODIAL SENTENCES] Totality Principle The Sentencing Council\'s overarching guideline, Totality, states that the principle of totality comprises two elements: There are no inflexible rules as to how the sentence should be structured. If consecutive, it is usually impossible to arrive at a just and proportionate sentence simply by adding together notional single sentences. Ordinarily some downward adjustment is required. If concurrent, it will often be the case that the notional sentence on any single offence will not adequately reflect the overall offending. Ordinarily some upward adjustment is required. 3. [Pre-sentence Reports] E2.23 Sentencing Act 2020, ss. 30 and 31 30.--- (1) 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. (2) 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. (3) If the offender is aged under 18, the court must obtain and consider a pre-sentence report before forming the opinion unless--- (4) 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. [VICTIM PERSONAL STATEMENTS] E2.27 CrimPD 9.5 (see Supplement, PD9.5) and the decisions of the Court of Appeal in Perkins \[2013\] EWCA Crim 323 and, in the context of victims who have incurred psychological harm, Chall \[2019\] EWCA Crim 865, 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. According to Lord Judge CJ in Perkins, 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. [MENTALLY DISORDERED OFFENDERS: MEDCIAL REPORTS] E2.30 The SA 2020, 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. 4. **[Judicial Indications of Sentence]** D12.60 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 (see D12.100). This was stressed by the Court of Appeal in Turner \[1970\] 2 QB 321. [The Goodyear Approach ] The correct approach to judicial indications of sentence is set out in Goodyear \[2005\] EWCA Crim 888, restated in Seddon \[2007\] EWCA Crim 3022 and Ibori \[2013\] EWCA Crim 815, and endorsed in CrimPD 9.4. In summary the guidance is as follows: Responsibilities of the COURT D12.62 (1) A court should not give an indication of sentence unless one has been sought by the accused. (2) 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). (6) Once an indication has been given, 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) or where a new definitive sentencing guideline is issued by the Sentencing Council. (7) 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. Responsibilities of the DEFENCE D12.63 (1) 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. (2) 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. (3) 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. Responsibilities of the PROSECUTION D12.64 1. As the request for indication comes from the defence, the prosecution are obliged to react to, rather than initiate the process. In doing so, the prosecution should act in accordance with CrimPR 3.31(4) (see Supplement, R3.31). 2. 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 (see D20.8 and CrimPD 9.4.5; see Supplement, PD9.4). 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 9.4.7), 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. (5) 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. [The Indication process ] (1) It is anticipated that any sentence indication would normally be sought at the plea and case management hearing, following a written application (CrimPR 3.31(2)). (2) In accordance with A-G\'s Ref (No. 80 of 2005) \[2005\] EWCA Crim 3367, 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). It is clear from Goodyear \[2005\] EWCA Crim 888 that the 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. Any indication which has been given lapses if the accused does not then plead guilty and cannot later bind the court (Patel \[2009\] EWCA Crim 1161). 5. **[TRIAL ON INDICTMENT]** D20.1 This section describes 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. This topic is addressed by CrimPR 25.16 (see Supplement, R 25.16), CrimPD ch. 9 (see Supplement, PD9.1 et seq.) and the Crown Court Compendium, Part II: Sentencing. [Ascertaining the Facts of the Offence after a Plea of Guilty] D20.2 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. [Duties of the Prosecutor in Relation to Sentencing] D20.3 By convention, the prosecution adopt a neutral attitude at the sentencing stage, not seeking to influence the court in favour of a heavy sentence. The following points may also be made about the role of prosecution counsel at the sentencing stage. [Victim Personal Statements] D20.4 The court is frequently provided with an account from the victim of the offence for which the offender is to be sentenced, which can then be taken into account by the court when it passes sentence. In Perks \[2001\] 1 Cr App R (S) 19 (66), the Court of Appeal laid down guidelines for the courts in considering \'victim personal statements\' for the purpose of sentencing. The main points of Perks are now summarised in CrimPD 9.5 (see Supplement, PD9.5), and in particular, *\'\[t\]he court will take the statement into account when determining sentence*\'. Procedural fairness requires the defence to be able to consider the contents of the VPS and respond appropriately. It was emphasised in Perkins \[2013\] EWCA Crim 323 that victim impact evidence should be provided by way of a witness statement containing up-to-date information, supplied in good time before sentence (see E2.27). In Jones \[2020\] EWCA Crim 1139, the Court of Appeal considered that a victim personal statement may provide evidence of one particular type of harm --- namely \'serious psychological harm\'. There was no formal need for expert evidence on the subject, but a sentencing court could only be justified in applying the highest sentencing category for the offence if there was recent evidence providing a strong evidential basis for psychological harm that **was significantly greater than** would generally be seen in the type of offence. Note - The statements cannot suggest the level of sentence to the judge. [Counsel's duty to assist the court] D20.6 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 (Panayioutou (1989) 11 Cr App R (S) 535). In Komsta (1990) 12 Cr App R (S) 63, 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. See also Reynolds \[2007\] EWCA Crim 538. [Disputes about the Facts Following a Plea of Guilty] Newton Hearings D20.8 In Newton (1982) 77 Cr App R 13, although 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\'. Lord Lane CJ said (at p. 15): 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 \... 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. [General Approach to factual disputes following Newton] D20.9 **Duty on the Defence to Raise the Issue** 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 (Tolera \[1999\] 1 Cr App R 29). 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. D20.10 **Duty on the Prosecution** 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 (Hughes \[2011\] EWCA Crim 556). D20.11 Duty on the Court to Resolve Necessary Issues 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. **Criminal Practice Directions 2023 9.3.39.3.3** The following steps apply: a. A basis of plea that is proposed by a defendant must be in writing and uploaded to the Digital Case System. The prosecution response must also be uploaded. b. If the prosecution accepts the defendant\'s basis of plea, it must ensure that it is factually accurate and enables the judge to sentence appropriately. c. An \'agreed basis of plea\' is always subject to the approval of the court, which will consider whether it appropriately reflects the evidence, whether it is fair and whether it is in the interests of justice. f. In resolving any disputed factual matters, the prosecution must consider its primary duty to the court and the interests of justice. If there are material factual disputes which could reasonably affect sentence then the prosecution must inform the court of this and not acquiesce or agree to any document containing material factual disputes. g. In some instances, the prosecution may consider that it lacks the evidence positively to dispute the defendant\'s account, for example, where the defendant asserts a matter outside the knowledge of the prosecution. This does not mean those assertions should be agreed. In such a case, the prosecution should test the defendant\'s evidence. h. The court must invite the parties to make representations about whether the dispute is material to sentence; and if the court decides that it is a material dispute, the court must invite such further representations or evidence as it may require and resolve the dispute. i. A judge is entitled to insist that any evidence relevant to the facts in dispute (or upon which the judge requires further evidence for whatever reason) should be called. k. The decision whether or not a Newton hearing is required is one for the judge. Evidence in a Newton hearing is called by the parties in the usual way and the criminal burden and standard of proof applies. The prosecutor should not leave the questioning to the judge, but should assist the court by exploring the issues which the court requires to be explored. The rules of evidence should be followed, and judges should direct themselves appropriately. l. A judge is obliged to hold a Newton hearing unless sure that the basis of plea is manifestly false or the defendant declines to engage in the Newton hearing, whether by giving evidence or otherwise. [Where Newton Hearing Unnecessary ] INSIGNIFICANT DISPUTES The principles in Newton (1982) 77 Cr App R 13 apply only where the dispute between prosecution and defence is \'substantial\' (see the words of Lord Lane\'s judgment quoted at D20.8). It follows that, where the judge\'s sentence would be the same whichever version of the facts was accepted, there is no obligation on the judge to hear evidence but a decision can be made one way or the other simply on the basis of counsel\'s representations. DEFENCE VERSION MANIFESTLY ABSURD The guidance in Newton (1982) 77 Cr App R 13 requires a sentencer either to hear evidence about a significant dispute as to the facts of the offence or to accept the defence version \'so far as possible\'. The implication is that the defence account may be so implausible that a judge ought not to be obliged to waste time by hearing evidence before rejecting it. PROCEDURE **Burden and Standard of proof** In 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. **Calling evidence** 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. **Role of the prosecution** 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 (Mirza (1993) 14 Cr App R (S) 64). The prosecution are still required to participate, whether or not they have material to dispute the defence account. **Role of the defence** On the other hand, the defence cannot be forced to call evidence or otherwise participate and 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 (Mirza (1993) 14 Cr App R (S) 64). **Role of the court** In assessing the evidence, the judge must, as the tribunal of fact, observe the directions which would have been given to the jury for their guidance. [Disputes about the Facts Following a Verdict of Guilty] [General Principle] D20.29 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 [Evidence of Character and Antecedents] [Requirement for Evidence of Character and Antecedents] D20.44 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 in accordance with CrimPD 5.3 (see Supplement, PD5.3). **[Sentencing for Matters of Which the Offender Has Not Been Convicted]** D20.51 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 (see D20.42). 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 D20.43); b. if the offender expressly asks for the other offences to be taken into consideration (see D20.52); 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 (see D20.55). [Taking Other Offences into Consideration] D20.52 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. [Sample Offences] D20.55 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. [Judicial Promise of Non-custodial Sentence on Adjournment for Reports] **Reports on the Offender** D20.62 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 [PRE-SENTENCING REPORT] S31 Sentencing Act 2020 (1) In this Code \'pre-sentence report\' means a report which--- D20.70 Preparation of Report 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 D20.71 [Circumstances in which Report Must Be Obtained ] The SA 2020, s. 30, 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. 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. [Medical and Psychiatric reports] D20.75 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 usually required before a custodial sentence is passed on an offender who is, or appears to be, mentally disordered (SA 2020, s. 232) [Mitigation of Sentence] D20.80 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. [Pronouncement of Sentence] D20.93 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. [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, save where the sentence is fixed by law or is otherwise mandatory. See also CrimPR 25.16(7)(b) (see Supplement, R25.16). In summary: (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. **[Deferring Sentence]** Purpose of Deferring Sentence D20.104 Under the **SA 2020, s. 3(1)** (set out at D20.111), 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 (s. 4(1)). 6. [Adjournments Prior to Sentence] Magistrates\' Courts Act 1980, s. 10 D23.2 (3) 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. [Presenting the facts, character and antecedents ] D23.6 The procedure to be followed before sentence is passed in a magistrates\' court is essentially the same as in the Crown Court. CrimPR 24.11(3) (see Supplement, R24.11) requires 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). [Newton Hearings] D23.7 Under CrimPR 24.11(5), an accused who pleads guilty but wants to be sentenced on a different basis to the facts put forward by the prosecution must set out that basis in writing (identifying exactly what is in dispute). The court may invite the parties to make representations about whether the dispute is material to sentence (in the sense that the sentence would differ depending on whether it is based on the prosecution version or the defence version of the facts). If the court decides that it is a material dispute, the court will invite \'such further representations or evidence as it may require\' and then decide the dispute. [Adjudication on and Pronouncement of Sentence] Majority Decision D23.8 As with any adjudication of a magistrates\' court, the decision as to sentence may be by a majority of those sitting. In the event of an equal division, the court should adjourn under the MCA 1980, s. 10 (adjournments after conviction and before sentence), for the matter to be reconsidered at the resumed hearing. [Reasons and Explanation] D23.9 CrimPR 24.11(9)(b) (see Supplement, R24.11) requires that, when passing sentence, the court must (unless neither the offender nor any member of the public is present) explain the reasons for deciding on that sentence. Unless the offender is absent, or the offender\'s ill-health or disorderly conduct makes it impracticable to do so, the court must also explain the effect of the sentence, the consequences of failing to comply with any requirements imposed, and any power that the court has to vary or review the sentence (r. 24.11(9)(c)). [Restrictions on Magistrates Courts powers of sentence ] [Offences triable either way ] D23.14 The maximum sentence that magistrates may impose upon an offender summarily convicted of an either way offence listed in the MCA 1980, sch. 1, is the \'general limit\' which (from 30 March 2023) became six months\' imprisonment and/or a fine of any amount (SA 2020, s. 224(1); Sentencing Act 2020 (Magistrates\' Court Sentencing Powers) (Amendment) Regulations 2023 (SI 2023 No. 298), reg. 2; MCA 1980, s. 32(1) and (2)). - This general limit is now applied to a number of statutory offences for which the penalty was previously inconsistent with this General limits on the power of magistrates\' courts to impose imprisonment or detention in a young offender institution are specified by the SA 2020, s. 224, and the MCA 1980, s. 32. The minimum sentence which may be imposed is one of five days (MCA 1980, s. 132) and the maximum is six months in respect of any one summary only offence (SA 2020, s. 224(1)) unless a shorter maximum term is provided for a particular offence by statute. [Summary offences ] D23.16 The maximum sentence of imprisonment (if any) for a summary offence is six months or that prescribed by the statute creating the offence, whichever is the less (SA 2020, s. 224(1)). Again, this is subject to the six-month ceiling in s. 224(1) being expressly overridden by any other enactment. The maximum fine for a summary offence is whatever the offence-creating provision specifies; fines are usually fixed by reference to a level on the standard scale of fines rather than by reference to a specific sum of money (see E5.9 for the standard scale of fines). [Aggregate Prison Terms] D23.17 Magistrates sentencing an offender for several offences and imposing imprisonment for two or more of them may make the terms concurrent or consecutive (MCA 1980, s. 133(1)). This is subject to the maximum aggregate term that a magistrates\' court may impose on one occasion for more than one summary offence, which is six months (proviso to s. 133(1)). In Garthwaite \[2019\] EWCA Crim 2357, Holroyde LJ said (at \[26\]) that the effect of s. 133(1) was that: Where a magistrates\' court is sentencing for two or more either way offences, the maximum aggregate term of imprisonment becomes 12 months (s. 133(2)). [Compensation Orders] D23.19 Where the offender has attained the age of 18, there is no limit on the amount of compensation that a magistrates\' court may order in respect of each offence. [Detention in a young Offenders Institute ] D23.20 A magistrates\' court may impose a sentence of detention in a young offender institution on an offender aged 18 to 20. The court\'s powers are limited to the same extent as are their powers to imprison offenders who have attained the age of 21. Where the offender is under the age of 18 (at the date of conviction), a youth court may impose a detention and training order, for which the maximum duration is 24 months (12 months\' custody and 12 months\' supervision in the community). See E15.10. [Non-custodial Sentences] D23.21 The powers of magistrates\' courts as regards non-custodial sentences, including community orders, are identical to those of the Crown Court. 7. [COMMITAL FOR SENTENCE ] [Committal under the Sentencing Act 2020, s14] D23.30 The SA 2020, s. 14 (see D23.41), applies where a magistrates\' court has convicted an offender of one or more either way offences and the court takes the view that the seriousness of the offence(s) is such that its sentencing powers are inadequate, in that the offence is so serious that the Crown Court should have the power to deal with the offender in any way it could deal with the offender if he or she had been convicted on indictment. In such a case, the magistrates\' court may commit the offender (in custody or on bail) to the Crown Court to be sentenced. The Crown Court can then pass sentence on the offender as if convicted on indictment, and so the limitations on the magistrates\' sentencing powers do not apply (s. 21). [Committal under the Sentencing Act 2020, s18] D23.42 The SA 2020, s. 18(1) (see D23.44), provides that, where the accused has indicated a guilty plea to an either way offence (and so is deemed to have pleaded guilty to it) and is also sent for trial for one or more related offences, the magistrates may commit the offender to the Crown Court for sentence in respect of the either way offence to which he or she has pleaded guilty. For the purposes of these provisions, one offence is related to another if the charges for them could be joined (under CrimPR 3.29(4): see D11.63) in the same indictment if both charges were to be tried in the Crown Court (s. 18(7)). **Section 21(4) and (5)** provide that, where the magistrates\' court has committed an offender for sentence pursuant to s. 18(1), the Crown Court can exceed the sentencing powers of the magistrates\' court in respect of the either way offence so committed only if either: [Committal under the Sentencing Act 2020, s20 ] D23.55 The SA 2020, s. 20 (see D23.61), gives a power to commit for sentence which may be used to supplement a committal under the provisions listed in s. 20(1), which include committal for sentence under ss. 14 to 19; committal for sentence in respect of the breach of a conditional discharge imposed by the Crown Court (under sch. 2, para. 5(4)); and committal where the offender commits a further offence during the operational period of a suspended sentence imposed by the Crown Court (under sch. 16, para. 11(2)). These committal powers are referred to below as \'primary\' committal powers. By virtue of the SA 2020, s. 20(2), when a magistrates\' court exercises a \'primary\' committal power in respect of an indictable offence (in this context, an either way offence), it may also commit the offender to the Crown Court to be dealt with in respect of any other offence of which he or she stands convicted (whether summary or indictable) that the magistrates\' court has jurisdiction to deal with as regards sentence. *Note* *The following are the specific leading case authorities with which students should be familiar (and should be able to refer to by name): Goodyear* \[2005\] EWCA Crim 888 and *Newton* (1982) 77 Cr App R 13*.* 23. Non-custodial sentences =========================== 1. absolute and conditional discharges 2. fines and the consequences of default 3. community sentences and the consequences of breach of a community sentence 1. [Order for Absolute Discharge ] E3.1 S79 Sentencing Act 2020: AVAILABILITY S79(2) Order for absolute discharge is available to a court dealing with an offender for an offence where -- a. Offender convicted by/before the court, and b. Offence is not one in relation to which mandatory sentence requirement applies (s339) EXERCISE OF POWER TO MAKE ORDER FOR ABSOLUTE DISCHARGE S79(3) Where available, the court may make an order for absolute discharge if its of the opinion that it is inexpedient to inflict punishment, having regard to the circs including -- a. Nature of the offence, and b. Character of the offender EFFECT ON OTHER ORDERS S79(4) Nothing in this section to be taken as preventing a court, on discharging offender absolutely in respect of an offence, from -- a. Imposing any disqualification on offender b. Making any of the following orders in respect of the offence -- a. Compensation order -- s113 b. Deprivation order -- s152 c. Restitution order -- s147 d. Unlawful profit order under s4 Prevention of Social Housing Fraud Act 2013 c. Making criminal courts charge -- order under s46 d. Making order for costs against offender [Use of Absolute Discharge] E3.2 Its imposition may reflect the triviality of the offence, the circumstances in which it came to be prosecuted, or special factors relating to the offender. Where an offence is dealt with by way of an absolute discharge, no surcharge is payable (see E2.31). An absolute discharge cannot be combined with a punitive measure for the same offence (Savage (1983) 5 Cr App R (S) 216) except where permitted by statute. Thus an absolute discharge cannot be combined with a custodial sentence, a community order or a fine (Sanck (1990) 12 Cr App R (S) 155). If, however, an offender is given an absolute discharge for one of a number of offences, the court is free to exercise its normal powers of sentence with respect to the other offences (Bainbridge (1979) 1 Cr App R (S) 36). The wording of s. 79(4)(a) permits the combination of an absolute discharge with \'any disqualification\'. Thus, for example, an absolute discharge may be combined with an order for disqualification from driving. Absolute discharges are available in all courts E3.2 BCP 2024 [Order for Conditional Discharge ] E3.3 S80 Sentencing Act 2020 S80(1) 'Order for conditional discharge' means order discharging offender for offence, subject to condition that offender commits no offence during period specified in that order - 'period of conditional discharge'. AVAILABILITY S80(2) Order for conditional discharge is available to court dealing with an offender for an offence where -- a. Offender is convicted by or before the court, and b. Offence is not one to which mandatory sentence requirements apply -- s399 S80(3) Following circs where order for conditional discharge not available -- a. S66ZB(6) Crime and Disorder Act 1998 -- effect of youth cautions; b. S66F of \^ Act -- youth conditional cautions; c. S103I(4) Sexual Offences Act 2003 -- breach of sexual harm prevention order and interim sexual harm prevention order; d. S339(3) -- breach of criminal behaviour order; e. S342G(4) -- offences relating to serious violence reduction order; f. S345(5) -- breach of sexual harm prevention order. EXERCISE OF POWER TO MAKE ORDER FOR CONDITIONAL DISCHARGE S80(4) Where available, court may make an order for conditional discharge if its of the opinion that it is inexpedient to inflict punishment, having regard to the circs, including -- a. Nature of the offence, and b. Character of the offender S80(5) Period of conditional discharge specified in order must be period of not more than 3 years beginning with day on which order is made. S80(6) Court may, if it thinks expedient for purpose of offender's reformation, allow any person who consents to give security for the good behaviour of the offender. EFFECT ON OTHER ORDERS S80(7) Nothing in this section prevents a court, on making conditional discharge order, from -- (a) imposing any disqualification on the offender, (b) making any of the following orders in respect of the offence--- (c) making an order under section 46 (criminal courts charge), or (d) making an order for costs against the offender. E3.4 When a discharge is conditional, the sole condition is that the offender should commit no further offence during the period of the conditional discharge. No other condition or requirement may be inserted. The period of the conditional discharge is fixed by the court but must not exceed three years. The power to grant a conditional discharge is available to all criminal courts whatever the age of the offender and, apart from the exceptional cases referred to in s. 80(2)(b), whatever the offence committed. However, a conditional discharge cannot be used in any of the cases set out in s. 80(3). The wording of s. 80(7)(a) permits the combination of a conditional discharge with \'any disqualification\'. Thus, for example, a conditional discharge may be combined with an order for disqualification from driving. [Breach of Conditional Discharge] E3.5 **The SA 2020, s. 81 and sch. 2**, make provision as to breach of a conditional discharge. A conditional discharge can be breached only by the conviction of the offender of a further offence committed during the period of the discharge. A court dealing with the breach may sentence the offender for the original offence in any manner in which it could have done if the offender had just been convicted before the court for that offence (SA 2020, s. 402(1) and sch. 2, paras. 5 and 7), but the Crown Court dealing with a person conditionally discharged by a magistrates\' court is limited to the lower court\'s powers (s. 402(2) and (3)). One magistrates\' court may deal with breach of a conditional discharge imposed by a different magistrates\' court, but only with the consent of the original magistrates\' court (sch. 2, para. 5(3)). It should be noted that, in relation to an offender who was aged under 18 when first convicted, the court may resentence that offender in any way in which it could deal with the offender if he or she were the same age as when convicted (s. 402(1)). 2. [FINES IN THE CROWN COURT] [Powers of Crown Court to Impose Fines ] E5.1 S120 Sentencing Act 2020 S120(1) -- A fine is available to CC where it is dealing with offender who is convicted on indictment for an offence -- a. Instead of, or b. In addition to, Dealing with the offender in any other way which is available to the court. S120(2) -- subsection (1) a. Doesn't apply where offence has mandatory sentence requirement via any of the following provisions of s339 -- a. Paragraph (a) -- life sentence for murder etc b. Paragraph (b) -- other mandatory life sentences, (iia) para (ba) -- serious terrorism sentences, or c. Paragraph (c)(iv) -- minimum sentence for third domestic burglary offence b. Is subject to any enactment requiring offender to be dealt with in particular way, and c. Doesn't apply if court precluded from sentencing offender by its exercise of some other power. S120(3) - Nothing in subsection (1) affects the maximum amount of a fine to which a person is liable for an offence committed before 1 December 2020. There are some sentences which cannot be combined with a fine. A fine cannot be combined with a hospital order (Mental Health Act 1983, s. 37(8)), nor with an absolute or conditional discharge when sentencing for a single offence (McClelland \[1951\] 1 All ER 557). E5.2 By the CLA 1977, s. 32(1), where a person convicted on indictment of any offence (whether triable only on indictment or either way) would, apart from that subsection, be liable to a fine not exceeding a specified amount, the person shall by virtue of that subsection be liable to a fine of any amount. Sentencing Code (Sentencing Act 2020, s. 130) When the Crown Court imposes a fine on an offender, it may make an order--- [Duty of the Crown Court to Fix Term in Default] E5.3 S129 Sentencing Act 2020 S129(1) -- applies where CC imposes fine on offender over 18 Does not apply to fine imposed by CC on appeal against decision of Mags court S129(2) -- Subsections (3) -- (5) also apply to fines imposed on offender -- a. By crim division CoApp, OR b. UKSC on appeal from that division. S129(3) Court must make an order ('term in default order') fixing a term -- a. Of imprisonment, or b. Of detention under s108 of Powers of Criminal Courts (Sentencing) Act 2000, which offender is to undergo if sum which offender is liable to pay is not duly paid or recovered. [FINES IN THE MAGISTRATES COURT] [Power of Magistrates' Court to Impose Fines] E5.8 **Ss118 and 119 Sentencing Act 2020** Section 118 1. Fine available to Mags' court if under the relevant offence provision, a person who is convicted of that offence is liable to a fine. 2. If under relevant offence provision offender is liable to -- a. Fine for specified amount, b. Fine of not more than a specified amount, the amount of the fine -- i. Must not be more than that amount, but ii. May be less than that amount 3. This is subject to - c. S121 (availability -- fines not to be combined with certain orders) d. S123 (limit on fines imposed by mags court in respect of young offenders) Section 119 1. Applies where under an enactment, a mags court has power to sentence offender to imprisonment or other detention, but not a fine. 2. Mag's court may impose a fine instead of sentencing to imprisonment/other detention 3. In case of an offence which -- a. Triable either way b. Commited before 12 March 2015 4. Fine imposed under subsection (2) for a summary offence -- c. Amount of a fine may not exceed level 3 on the standard scale, and d. Default term must not be longer than term of imprisonment or detention to which offender is liable on conviction of the offence Default term = term of imprisonment under s108 Powers of Crim Courts (Sentencing) Act 2000 to which offender would be subject in default of payment of fine. [FINES: Sentencing Principles ] E5.14 The Sentencing Code (SA 2020, s. 124(1)) states that \'Before fixing the amount of any fine to be imposed on an offender who is an individual, a court must inquire into the offender\'s financial circumstances.\' Section 125(1) and (2) state that the amount of any fine must be such as, in the opinion of the court, reflects the seriousness of the case, but that the court must take into account the circumstances of the case including, in particular, the financial circumstances of the offender so far as they as known, or appear, to the court. Section 35(2) provides that, where an individual has been convicted of an offence, the court may, before sentencing, make a \'financial circumstances order\' with respect to the individual. Both magistrates\' courts and the Crown Court may make such an order. A \'financial circumstances order\' is an order requiring the relevant individual \'to give to the court, before the end of the period specified in the order, such a statement of the individual\'s assets and other financial circumstances as the court may require\' (s. 35(1)) [Proportionality to Gravity of Offence] E5.16 It is clear from the SA 2020, s. 125(1), that a key principle in relation to the use of the fine, whether in the Crown Court or in magistrates\' courts, is that the selection of the fine as a sentence, and the determination of the appropriate level of any fine, should reflect the seriousness of the offence. This principle applies when sentencing corporations as well as individual offenders. A fine is an inappropriate penalty where the seriousness of the offence requires an immediate custodial sentence. - An example is A-G\'s Ref (No. 41 of 1994) (1995) 16 Cr App R (S) 792, where fines totalling £350 had been imposed on D who had pleaded guilty to wounding with intent to cause grievous bodily harm. - The Court of Appeal held that the sentence was \'absurd\', and unduly lenient and substituted a custodial term of 30 months. The Sentencing Council\'s guideline, Reduction in Sentence for a Guilty Plea, applies to fines. The principle of reduction in relation to fines is of long standing (see Warden (1996) 2 Cr App R (S) 269). The imposition of the maximum available fine should be reserved for the most serious instances of the offence which are reasonably likely to occur. The existence of significant mitigation, such as the offender\'s guilty plea, should normally preclude the imposition of the maximum fine. - The principle here is the same as that which applies to custodial sentences (Holman \[2010\] EWCA Crim 107). [Taking into Account Financial Circumstances of Offender] E5.18 Since \'one of the objects of the fine is to remind the offender that what he has done is wrong\' (per Lord Lane CJ in Olliver (1989) 11 Cr App R (S) 10), the imposition of a fine which is beyond the means of the offender is wrong in principle. E5.19 According to Roskill LJ in *Reeves* (1972) 56 Cr App R 366, where D had pleaded guilty to obtaining £600 by deception and had received a prison sentence of nine months, the comments made by the sentencer \'must plainly have indicated to the appellant... that he was being *sent to prison not because the offence itself merited a sentence of immediate imprisonment but because he had not the financial wherewithal to pay a substantial fine*. That... is, of course, completely wrong.\' Where the offender is well-off and paying the fine proportionate to the offence would cause little inconvenience, it is contrary to principle to impose a custodial sentence instead (Gillies \[1965\] Crim LR 64). It is clear from the SA 2020, s. 125(2), that it is appropriate to raise the level of the fine in such a case, so as to increase its impact on the offender, although the Court of Appeal in Jerome \[2001\] 1 Cr App R (S) 92 said that there must remain some proportionality between the offence and the fine. 3. [Criteria for Imposition of Community Order] E12.2 By the SA 2020, s. 202, a \'community order\' is an order imposed on an offender aged 18 or over when convicted. **S204** Sentencing Code 2020 1. Section where a community order is available. 2. Court must not make CO unless it's of the opinion that -- a. The offence, or b. The combination of offence & one or more offences associated, was serious enough to warrant the making of such an order. 3. In forming its opinion for the purposes of subsection (2), the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors. 4. The pre-sentence report requirements (see section 30) apply to the court in relation to forming that opinion. A community order is only available if the offence is punishable with imprisonment (SA 2020, s. 202(1)). A community order is not available in respect of an offence in relation to which a mandatory sentence requirement applies (s. 202(3), and see s. 399). A community order cannot be made in combination with a hospital order or guardianship order in respect of the same offence (s. 202(2)). [Reports] E12.6 Before imposing a community sentence, the sentencing court must normally obtain a pre-sentence report but the court need not obtain such a report if it considers it \'unnecessary\' to do so. The SA 2020, s. 32, deals with disclosure of pre-sentence reports to the defence and the prosecution (see E2.25). [Community Order Requirements] E12.8 The SA 2020, s. 201, provides a \'community requirements table\' listing the requirements with which the court may order an offender aged 18 or over to comply during the course of a community order. The requirements are: - unpaid work requirement (sch. 9, part 1); - rehabilitation activity requirement (sch. 9, part 2); - programme requirement (sch. 9, part 3); - prohibited activity requirement (sch. 9, part 4); - curfew requirement (sch. 9, part 5); - exclusion requirement (sch. 9, part 6); - residence requirement (sch. 9, part 7); - foreign travel prohibition order requirement (sch. 9, part 8); - mental health treatment requirement (sch. 9, part 9); - drug rehabilitation requirement (sch. 9, part 10); - drug testing requirement (sch. 9, part 10A); - alcohol treatment requirement (sch. 9, part 11); - alcohol abstinence and monitoring requirement (sch. 9, part 12); - attendance centre requirement (sch. 9, part 13); - electronic compliance monitoring requirement (sch. 9, part 14); - electronic whereabouts monitoring requirement (sch. 9, part 14). [Requirement Imposed for the Purpose of Punishment ] E12.11 The overarching sentencing guideline, Imposition of Community and Custodial Sentences, provides that, \'The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to the three sentencing levels within the community order band based on offence seriousness (low, medium and high). The culpability and harm present in the offence(s) should be considered to identify which of the three sentencing levels within the community order band (low, medium or high) is appropriate.\' [Unpaid Work Requirement] E12.12 The number of hours of unpaid work which may be ordered by the court must be not less than 40 and not more than 300 (SA 2020, sch. 9, para. 2). Before inserting an unpaid work requirement into a community order, the court must, if it thinks necessary, hear from an appropriate officer that the offender is a suitable person to perform work under the requirement and that local arrangements exist for the requirement to be carried out (para. 3(1)). If the court makes community orders on the offender in respect of two or more offences of which the offender has been convicted on the same occasion and includes unpaid work requirements in each of them, the court may direct that the hours of work run concurrently or consecutively, but the total number of hours must not exceed 300 (para. 2(4)). The work required should normally be completed within 12 months (para. 1(1)) Unless revoked, a community order imposing an unpaid work requirement remains in force until the offender has worked under it for the number of hours specified (SA 2020, s. 220). It is submitted that the effect of this provision is that a failure to complete the required number of hours within the normal 12 months places the offender in breach of the community order, and the probation service may then apply to the court either to initiate breach or to extend the 12-month period. [Rehabilitation Activity Requirement] E12.13 A rehabilitation activity requirement is a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to attend appointments or participate in activities or both (SA 2020, sch. 9, para. 4(1)). The court does not prescribe the activities to be undertaken but must specify the maximum number of days the offender must complete (para. 4(2)). - The activities include those which form part of an accredited programme and those whose purpose is reparative, such as restorative justice (para. 5(6)). [Programme Requirement] E12.14 By sch. 9, para. 6(1), of the SA 2020 a programme requirement is a requirement that the offender must in accordance with instructions given by the responsible officer participate in an accredited programme at a particular place on a number of days which must be specified in the order. Such programmes include those which address offending behaviour relating to anger management, domestic violence, sex offending, substance misuse and so on. [Prohibited Activity Requirement] E12.15 The SA 2020, sch. 9, para. 7, defines a prohibited activity requirement. The court can require an offender to refrain from participating in certain activities, on a specified day or days (such as attending football matches), or over a specified period of time. - The requirement may include forbidding the offender to contact a certain person, and may be that the offender does not possess, use or carry a firearm (para. 7(3)). Before inserting a prohibited activity requirement into a community sentence, the court must consult an officer of a local probation board or an officer of a provider of probation services (para. 7(4)). [Curfew Requirement] E12.16 By sch. 9, para. 9(1), of the SA 2020, a curfew requirement is a requirement that the offender must remain at a place specified by the court for certain periods of time (curfew periods). Different places or different curfew periods may be specified for different days (para. 9(3)). These periods of time must be not less than two hours and not more than 16 hours in any given day (para. 9(4)). As from 28 June 2022, where an offender is convicted on or after that day, the PCSCA 2022, s. 150(2) and (3), amended para. 9(4) so as to increase this figure from 16 hours to 20 hours. Paragraph 9(4) is also amended by s. 150(2) so that the curfew periods specified in the order must not amount to more than 112 hours in any period of seven days. A curfew requirement within a community order may not specify periods which fall outside the period of 12 months beginning with the date on which the order was made (para. 9(5)). With effect from 28 June 2022, the PCSCA 2022, s. 150(4) and (5), amended para. 9(5) so as to increase the period of 12 months to one of two years. Before inserting a curfew requirement into a community order, the court must obtain and consider information about the place(s) proposed to be specified in the order, including information as to the attitude of persons likely to be affected by the enforced presence there of the offender (para. 10(1) and (2)). Where the court makes a community sentence which includes a curfew requirement, it must normally also impose an electronic monitoring requirement unless the court considers it inappropriate to do so (para. 10(3)). In Finlay \[2015\] EWCA Crim 328, the Court of Appeal said that the duration of a curfew requirement must be related to culpability and need. [Exclusion Requirement] E12.17 Under sch. 9, para. 11(1), of the SA 2020, an exclusion requirement is a requirement which prohibits an offender from entering a specified prohibited place, or places, or area (such as a specified town centre), during a period specified in the order. - The order can exclude the offender from different places for different periods of time (para. 11(3)). It may also be used as a means of keeping the offender away from a specified person, in which case the person for whose protection the order is made should be given a copy of the requirement made by the court (s. 219 and sch. 14). An exclusion requirement in a community order cannot last longer than two years (sch. 9, para. 11(4)). Where the court makes a community order which includes an exclusion requirement, it must normally also impose an electronic compliance monitoring requirement unless the court considers it inappropriate to do so (para. 12). Since the primary purpose of an exclusion requirement is to prevent, or at least reduce the risk of, further offending, such a requirement should be proportionate to the risk of further offending (J \[2008\] EWCA Crim 2002). [Foreign Travel Prohibition Requirement] E12.19 By inserting a foreign travel prohibition requirement (SA 2020, sch. 9, para. 15) into a community order, the court will be able to prohibit the offender from travelling, on a day or days specified in the order, for a period specified, to a particular country or territory (or more than one) outside the British Islands. A day so specified must not fall outside the period of 12 months from the date of the order, and a period so specified must not exceed 12 months from the date of the order (para. 15(4) and (5)). [Mental Health Treatment Requirement] E12.20 The mental health treatment requirement as set out in the SA 2020, sch. 9, para. 16(1), is a requirement that the offender must, during a period or periods specified in the order, submit to mental health treatment, in the form of in-patient treatment, out-patient treatment or practitioner-based treatment, by or under the direction of a registered medical practitioner or registered psychologist. Before the court can insert a mental health treatment requirement, it must be satisfied that the mental condition of the offender is such as requires and may be susceptible to treatment but is not such as to warrant the making of a hospital order or a guardianship order (para. 17(2)). The court must also be satisfied that arrangements have been made or can be made for the treatment to be specified in the order, and that the offender has expressed willingness to comply with such an order (para. 17(3) and (4)). [Drug Testing Requirement] E12.24 As from 28 June 2022, the SA 2020, s. 201 (community order requirements table) is amended by the PCSCA 2022, s. 154 and sch. 15, by the insertion of the \'drug testing requirement\'. That requirement is not available if the offender was convicted of the offence before the day on which s. 154 comes into force. By para. 22A, a \'drug testing requirement\' means a requirement that during a period specified in the order the offender must, for the purpose of ascertaining whether there is any controlled drug or psychoactive substance in the offender\'s body during that period, provide samples in accordance with directions given by the responsible officer. By para. 22B the **court may not impose a drug testing requirement unless** the court is satisfied that the offender\'s misuse of a controlled drug or psychoactive substance caused or contributed to the offence, or is likely to cause or contribute to the commission of further offences and, further, that the court has been notified that arrangements are in place in the offender\'s local home justice area for implementing drug testing requirements. [Attendance Centre Requirement] E12.27 With effect from 28 June 2022, the PCSCA 2022, s. 152, amended the SA 2020, s. 207(3), and effectively abolished the attendance centre requirement. An attendance centre requirement is available only where an offender was convicted before 28 June 2022 and the offender was aged under 25 when convicted. [Electronic Compliance Monitoring Requirement] E12.28 The SA 2020, sch. 9, para. 29(1), provides that the court passing a relevant order may require the electronic monitoring of the offender\'s compliance with one or more of the other requirements in the order. If the court is proposing to include such a requirement but there is a person, other than the offender, without whose co-operation it will not be practicable to secure the monitoring, the requirement cannot be included without that person\'s consent (para. 33). [Power to provide for Review] E12.30 The SA 2020, s. 217, confers power on the Secretary of State by regulations to enable or to require a court making a community order to provide for that order to be reviewed periodically by that or another court, and to make provisions for the timing and conduct of such reviews. With effect from 28 June 2022, the new provisions give the court powers to review community and suspended sentence orders (SA 2020, ss. 217A and 293A, inserted by the PCSCA 2022, sch. 14, paras. 5 and 7, respectively). As from 28 June 2022, the PSCSA 2022 inserted para. 10(5)(ba) into the SA 2020, sch. 10, and para. 13(1)(da) into sch. 16. - This will also enable the court to impose short custodial penalties of up to 28 days for non-compliance with both community and suspended sentence orders. [Enforcement of Community Orders] E12.31 The SA 2020, sch. 10, contains provisions dealing with breach, revocation and amendment of community orders, and the effect of the offender being convicted of a further offence. Conviction for a further offence does not constitute breach of a community order, but the guideline also provides guidance in relation to that matter. [Warning and Enforcement] E12.32 By the SA 2020, sch. 10, para. 6, if the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with any of the requirements of a community order, the officer must give a warning describing the circumstances of the failure, stating that the failure is unacceptable, and informing the offender that if within the next 12 months he or she again fails to comply with any requirement of the order, he or she will be brought back before the court. The responsible officer need not give a warning if a previous warning was given within the preceding 12 months or if the matter is referred to an enforcement officer. If there has been a warning, and within 12 months there is a further failure without reasonable excuse to comply, the responsible officer must refer the matter to an enforcement officer. [Breach of Community Order ] E12.33 The Crown Court may have included in the community order a direction that any breach of the order is to be dealt with by the magistrates\' court. If no such direction has been made, any breach will be dealt with in the Crown Court. The offender must be sentenced on the basis of his or her age when the original order was made. Any breach should either be admitted by the offender or be formally proved to the criminal standard of proof (West Yorkshire Probation Board v Boulter \[2005\] EWHC 2342 (Admin)) and the prosecution should be in a position to put before the court the facts of the original offence, at least in outline, as well as the facts of the breach (Clarke \[1997\] 2 Cr App R (S) 163). If it is proved to the satisfaction of the court before which the offender is brought that he or she has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with the offender in one of the following ways (set out in para. **[10(5)(a) to (c)):]** a. by ordering the offender to pay a fine not exceeding £2,500; b. by amending the terms of the community order so as to impose more onerous requirements which the court could include if it had just convicted the offender of the offence in respect of which the order was made and were then making the order; The court must deal with the breach in one of the ways specified. There is no power to take \'no action\' on breach. - When dealing with the offender under para. 10(5), the magistrates\' court must take into account the extent to which the offender has complied with the requirements of the community order (para. 10(7)). The court may extend the duration of the order for up to six months beyond the original end date even if that involves the total duration of the order exceeding three years. - Such an extension may be exercised only once (para. 13(1) to (3)). If the court proceeds to resentence the offender under para. 10(5)(c), it must revoke the community order if it is still in force (para. 10(10)). E12.34 The SA 2020, sch. 10, para. 11, describes the powers of the Crown Court when dealing with a breach of a community order. The offender must be sentenced on the basis of his or her age when the original order was made. Any breach should either be admitted by the offender or be formally proved to the criminal standard of proof (West Yorkshire Probation Board v Boulter \[2005\] EWHC 2342 (Admin)) and the prosecution should be in a position to put before the court the facts of the original offence, at least in outline, as well as the facts of the breach (Clarke \[1997\] 2 Cr App R (S) 163). If it is proved to the satisfaction of the court before which the offender is brought that he or she has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with the offender in one of the following ways (set out in para. **[11(2)(a) to (c)):]** a. by ordering the offender to pay a fine not exceeding £2,500; b. by amending the terms of the community order so as to impose more onerous requirements which the Crown court could include if it had just convicted the offender of the offence in respect of which the order was made and were then making the order; The court must deal with the breach in one of the ways specified. There is no power to take \'no action\' on breach. When dealing with the offender under para. 11(2), the Crown Court must take into account the extent to which the offender has complied with the requirements of the community order (para. 11(4)). The court may extend the duration of the order for up to six months beyond the original end date even if that involves the total duration of the order exceeding three years. - Such an extension may be exercised only once (para. 13(1) to (3)). If the Crown Court proceeds to resentence the offender under para. 11(2)(c), it must revoke the community order if it is still in force (para. 11(7)). Since time served on remand is deducted automatically from a custodial sentence under the CJA 2003, s. 240ZA (see E13.12), it is clear that the judge dealing with an offender for breach of a community order by revoking the order and imposing custody has no power to direct that the time spent on remand shall not count. [Revocation of Community Order] E12.35 Paragraphs **14 and 15 of sch. 10 to the SA 2020** deal with the powers of a magistrates\' court and the Crown Court considering revocation of a community order where, on application by the offender or by an officer of a provider of probation services, having regard to changed circumstances since the order was made, it is in the interests of justice to revoke the order or to revoke the order and deal with the offender for the offence in some other way. These circumstances include the offender making good progress under the order or responding satisfactorily to the requirements in the order. Paragraphs 23 and 24 of sch. 10 to the SA 2020 deal with the powers of a magistrates\' court or the Crown Court considering revocation of a community order where the offender has committed a further offence within the currency of a community order. - The power to revoke the order depends upon the community order still being in force. In relation to commission of a further offence the power to revoke does not arise where the order has expired, even if the additional offence was committed while it was still current. By para. 23(1) and (2) if the community order was made by a magistrates\' court and if it appears to be in the interests of justice to do so, having regard to the circumstances which have arisen since the order was made, the magistrates\' court may By para. 25, if the Crown Court is dealing with the subsequent offence, because the offender subject to a community order is convicted of an offence by the Crown Court or appears before the Crown Court by virtue of para. 24 or having been committed by a magistrates\' court to the Crown Court for sentence, the Crown Court may 24. Custodial sentences ======================= 1. custodial sentences in the Crown Court and magistrates' courts 2. restrictions on imposing custodial sentences 3. length of sentence 4. mandatory and minimum sentences 5. suspended sentences 1. [Available Custodial Sentences] E13.1 (1) In this Code \'custodial sentence\' means--- (a) a detention and training order under section 233, (b) a sentence of detention under Chapter 2 of this Part, (c) a sentence of detention in a young offender institution, (d) a sentence of custody for life under section 272 or 275, or (e) a sentence of imprisonment. This is subject to subsection (3). Offenders aged under 21 at the date of conviction cannot be sentenced to imprisonment (SA 2020, s. 227(1). Those under 21 cannot be committed to prison for any reason, such as non-payment of a fine, but this does not prevent the committal to prison of a person aged under 21 who is remanded in custody, committed in custody for sentence, or sent in custody for trial under the CDA 1998, s. 51 or 51A (SA 2020, s. 227(3)). [Maximum Custodial Sentence] E13.2 Maximum prison terms for indictable offences and offences triable either way are almost always laid down by statutes creating those offences. Maximum terms are indicated in respect of each of the offences dealt with in Part B. Where a person is convicted on indictment of an offence against any enactment punishable with imprisonment, but the sentence is not limited to a specified term or life by any enactment, the maximum prison sentence available is two years (SA 2020, s. 223). [Limits on Imprisonment: Magistrates' Court and the Crown Court when Limited to Magistrates' Courts' Powers] E13.5 General limits on the power of magistrates\' courts to impose imprisonment or detention in a young offender institution are specified by the SA 2020, s. 224, and the MCA 1980, s. 32. The minimum sentence which may be imposed is one of five days (MCA 1980, s. 132) and the maximum is six months in respect of any one summary only offence (SA 2020, s. 224(1)) **unless** a shorter maximum term is provided for a particular offence by statute. For offences which are triable either way the Secretary of State has power under the SA 2020, sch. 23, para. 14A, to vary the \'applicable limit in a magistrates\' court\' from six months to 12 months or vice versa. The exercise of this power means that the maximum sentence for a single either way offence is: 1. If sentencing a single either way offence committed before 2 May 2022, the applicable limit is six months. 2. In respect of a single either way offence committed on or after 2 May 2022, where conviction occurs before 30 March 2023, the applicable limit is varied from six months to 12 months. 3. If sentencing a single either way offence where conviction occurs on or after 30 March 2023, irrespective of the date of the offence, the applicable limit is varied from 12 months to six months (see the Sentencing Act 2020 (Magistrates\' Court Sentencing Powers) (Amendment) Regulations 2023 (SI 2023 No. 298) and the SA 2020, sch. 23, para. 14A(2)). The maximum aggregate term which magistrates can impose is six months for summary only offences (MCA 1980, s. 133(1)), but if two of the terms are imposed for offences triable either way, the maximum aggregate term is 12 months (s. 133(2)). Care must be taken when sentencing in the [Crown Court] in the situation where either way offences have resulted in acquittal or have not been proceeded with, and the defendant falls to be sentenced only for one or more summary offences (such as common assault or an offence of criminal damage below the £5,000 threshold). - The Crown Court is limited to a maximum of six months\' imprisonment for common assault and to three months\' imprisonment for the criminal damage and, by the MCA 1980, s. 133, to a maximum aggregate custodial sentence of six months, less any appropriate reduction for a guilty plea. 2. [RESTRICTIONS ON IMPOSING CUSTODIAL SENTENCES] [General restrictions] E13.7 (Sentencing Act 2020, **s. 230**) (2) The court must not pass a custodial sentence unless it is of the opinion that---...was so serious that neither a fine alone nor a community sentence can be justified for the offence. The overarching sentencing guideline, Imposition of Community and Custodial Sentences, states that the clear intention of this \'threshold test\' is to reserve custodial sentences as a punishment for the most serious offences, but that there is no general definition of where the custody threshold lies. - The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Section 230(3) states that the section does not apply if the offence is one to which a mandatory sentence requirement applies (see s. 399). Section 230(4) deals with the exceptional situation where a court may pass a custodial sentence on an offender who has failed to express willingness to comply with a requirement which the court proposes to include in a community order and where the requirement requires an expression of such willingness. - Requirements which require the offender\'s expression of willingness to comply are a mental health treatment requirement, a drug rehabilitation requirement and an alcohol treatment requirement. [Two or More Offences] E13.8 Where the offender stands convicted of two or more offences the court, in deciding whether custody is justified under the SA 2020, s. 230(2), must consider the seriousness of the sum of the offences, provided that these are \'associated\' with one another. Section 400 specifies when one offence is to be regarded as associated with another. Sentencing Code (Sentencing Act 2020, **s. 400**) For the purposes of this Code, an offence is associated with another if--- (a) The offender--- (i) is convicted of it in the proceedings in which the offender is convicted of the other offence, or (b) In the proceedings in which the offender is sentenced for the other offence, the offender--- (i) admits having committed it, and (ii) asks the court to take it into consideration in sentencing for that other offence. In Baverstock \[1993\] 2 All ER 32, D was dealt with for two offences; the second having been committed while D was on bail in respect of the first. D was sentenced for the two offences on the same occasion; hence, they were \'associated\' for the purposes of s. 400. 3. [LENGTH OF SENTENCE ] [General Provision] E13.9 (2) The custodial sentence must be for the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of--- (a) the offence, or (b) the combination of the offence and one or more offences associated with it. The wording in s. 231(2) reflects the well-established principle that, when it is necessary to impose a custodial sentence, that sentence should be as short as possible to achieve the goals of that sentence. In AYO \[2022\] EWCA Crim 1271, the Court of Appeal stressed the importance of s. 231, pointing out that the section applies to the extended sentence and the special custodial sentence for offenders of particular concern as well as to determinate sentences. It applies however grave the offending. Section 231(2) states that the court may have regard to \'the combination of the offence and one or more offences associated with it\' when determining the length of a custodial sentence. - The SA 2020, s. 400 (see E13.8), defines when one offence may be regarded for these purposes as \'associated with\' another. - Section 231(3) states that s. 231(2) does not apply if the sentence is fixed by law (murder) or carries a required life sentence (which means a sentence of detention for life under s. 250, custody for life under s. 272 or imprisonment for life), except as provided by the provisions relating to the sentence of life for the second listed offence. In forming its opinion for the purposes of s. 231(2) the court must take into account all the information that is available to it about the circumstances of the offence, or of it and the associated offence or offences, including any aggravating or mitigating factors (s. 231(7)), and the pre-sentence report requirements (see s. 30) apply to the court in relation to forming that opinion (s. 231(8)). [Dealing with several offences] E13.10 Where the offender is being sentenced for several offences, this approach could lead to a total sentence which is disproportionate to the overall seriousness of the offending behaviour. The SA 2020, s. 77(3), declares that nothing shall prevent a court \'in a 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\'. Where a court is dealing with an offender for several offences, one (or more) of which is (or are) so serious that only custody can be justified but the remainder of which are not so serious, the court is not precluded from passing custodial sentences for the lesser offences. - *However*, those sentences should normally be ordered to run concurrently with the sentences for the more serious offences and should not increase the length of the overall term (Oliver \[1993\] 2 All ER 9). E13.11 In Foster \[2023\] EWCA Crim 1196, the Court of Appeal drew attention to the sections of the Equal Treatment Bench Book which deal with the impact of imprisonment on women, and added that women held in custody may often be a long distance from their families, which can add to the adverse consequences for them and their children. See also Petherick \[2012\] EWCA Crim 2214 on the impact of imprisonment upon dependent relatives including children. [Time remanded in Custody to Count as Time Served] E13.12 **Criminal Justice Act 2003, s. 240ZA** 1. This section applies where--- - (a) an offender is serving a term of imprisonment in respect of an offence, and - (b) the offender has been remanded in custody (within the meaning given by section 242) in connection with the offence or a related offence. 2. It is immaterial for that purpose whether, for all or part of the period during which the offender was remanded in custody, the offender was also remanded in custody in connection with other offences (but see subsection (5)). 3. The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence. **But this is subject to subsections (4) to (6).** 4. If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served. (5) A day counts as time served--- - (a) in relation to only one sentence, and - (b) only once in relation to that sentence. 6. A day is not to count as time served as part of any automatic release period served by the offender (see section 255B(1)). (6A) Where a court has made a declaration under section 327 of the Sentencing Code in relation to the offender in respect of the offence, this section applies to days specified under subsection (

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