Criminal Litigation SGS 10 Non-Custodial Sentencing

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billsykes
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Criminal Litigation SGS 10 Non-Custodial Sentencing
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2013-03-30 12:41:43
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Criminal Litigation SGS 10
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  1. Maxine, aged 25, was convicted 3 months ago at Gladbury Magistrates’ Court of Theft. She was ordered to pay a fine of £50 within 28 days of the date of conviction, or 7 days imprisonment in default. Maxine has failed to pay the fine.

    Which of the following is INCORRECT?

    [A] The Magistrates’ Court may issue a summons or warrant requiring Maxine to appear before the court to enable a means inquiry to be held.

    [B] The court may order Maxine’s immediate committal to custody for the term originally specified as being the term in default, irrespective of whether a means inquiry has been held. 

    [C] Following a means inquiry the court may grant Maxine further time to pay the fine.

    [D] Following a means inquiry the court may allow Maxine to pay the fine by instalments
    [B] The court may order Maxine’s immediate committal to custody for the term originally specified as being the term in default, irrespective of whether a means inquiry has been held.

    Incorrect, an immediate committal to custody can be ordered ONLY where, since the conviction, the court has inquired into the offender’s means in his presence on at least one occasion….. (MCA 1980, s.82(4).
  2. Which of the following propositions are CORRECT?

    i) If an offender breaches a conditional discharge he/she may be re-sentenced for the original offence.

    ii) If an offender breaches a conditional discharge he/she must be re-sentenced for the original offence.

    iii) If an offender is bound over to keep the peace, and breaches the terms of the bind over he/she must forfeit all/some of the recognisance.

    iv) If an offender is bound over to keep the peace, and breaches the terms of the bind over he/she may forfeit all/some of the recognisance.

    [A] ii) and iv)
    [B] ii) and iii)
    [C] i) and iv)
    [D] i) and iii)
    [C] i) and iv)

    i) If an offender breaches a conditional discharge he/she may be re-sentenced for the original offence.

    Correct

    iv) If an offender is bound over to keep the peace, and breaches the terms of the bind over he/she may forfeit all/some of the recognisance.

    Correct
  3. In relation to Newton hearings which of the following propositions are CORRECT?

    i) Where a Newton hearing takes place the prosecution bear the burden of proof, the standard is beyond reasonable doubt.

    ii) In a case where there is a substantial factual dispute, the court must not accept the prosecution version of events, without first hearing evidence to support it, unless the defence version is absurd.

    iii) Once a Newton hearing has been ordered, the hearing follows normal adversarial lines.

    v) If the magistrates decide the issue of fact against the defence, the accused may lose some of the credit he would otherwise have received for a guilty plea.

    [A] All of the above
    [B] i), iii) and iv)
    [C] ii), iii) and iv)
    [D] i), ii) and iii)
    [A] All of the above
  4. In relation to compensation orders which of the following is INCORRECT?

    [A] The amount of the victim’s loss should either be agreed by the offender or established by evidence.

    [B] Where it would be appropriate to impose both a fine and make a compensation order, if the offender has insufficient means to pay both, the court must give preference to compensation.

    [C] The maximum sum that the magistrates may order by way of compensation for the offence is £5,000 per offence.

    [D] Before making a compensation order, the magistrates must be of the view that the offender may also be civilly liable for the loss.
    [D] Before making a compensation order, the magistrates must be of the view that the offender may also be civilly liable for the loss.

    Incorrect, Chappell (1984) 80 Cr App R 31).
  5. What is a bind over?
    An order requiring a person to keep the peace. The person bound over is required to enter into a recognizance in an amount which will be forfeited if he/she fails to keep the peace for a specified period. [See BCP 2013 E13.1 and 13.2]

    An order requiring a person to be bound over to come up for judgment. [See BCP 2013 E13.8].
  6. In what circumstances might it be appropriate for a criminal court to grant an offender an absolute discharge?
    • 1) Trivial offences
    • 2) To reflect the circumstances in which the offender came to be prosecuted
    • 3) Where there are special factors relating to the offender

    The power to grant an absolute discharge is available to all criminal courts whatever the age of the offender and, apart from the exceptional cases in which the PCC(S)A 2000, s. 12(1) applies whatever the offence.

    [PCC(S)A 2000, s.12(1) – see BCP 2013 E12.1 and 12.2]
  7. What is the sole condition of a conditional discharge?
    That the offender should commit no further offence during the period of the conditional discharge.
  8. What is the minimum duration of a conditional discharge?
    There is no minimum duration prescribed by law.

    [See the PCC(S)A 2000, s. 12(1)(b) and BCP 2013 E12.3]
  9. What is the maximum duration of a conditional discharge?
    3 years. 

    [See the PCC(S)A 2000, s .12(1)(b) and BCP 2013 E12.3.]
  10. What sentencing principles govern the fixing of fines?
    The PCC(S)A 2000, s.164 CJA 2003 says that:

    The court must inquire into the offender’s financial circumstances.

    The fine must reflect the seriousness of the offence.

    The fine must take into account the circumstances of the case.

    [See E 15.14- E15.20 BCP 2013]
  11. What are the consequences of non-payment of fines?
    • Under s. 75 MCA 1980, the court may:
    • 1. Allow further time for payment;
    • 2. Order that a means inquiry be held.

    Otherwise the court can:

    • 1. Issue a summons or warrant requiring the offender to appear;
    • 2. Issue a warrant to arrest the offender and bring him/her before the court to conduct a means inquiry;
    • 3. Then it can allow time to pay, arrange payment by instalment, reduce the sum of the instalments, remit whole/part of the fine
    • 4. Commit the offender to prison, but only following a means inquiry, and where

    •  The substantive offence is imprisonable; and
    •  The offender has the means to pay the outstanding amount forthwith;
    • OR
    •  The court is satisfied that the offender’s failure to pay is due to wilful refusal or capable neglect; and
    •  No other method of enforcement would be effective.

    [BCP 2013 E15.6 and E15.11 to E15.13]
  12. What is the maximum fine that the Magistrates’ Court can impose for one summary only offence?
    £5000 (Level 5) unless the statute creating the offence prescribes a particular maximum penalty.

    [See BCP 2013 E15.8]
  13. What is the maximum fine that the Magistrates’ Court can impose for six summary only offences?
    £30,000 (£5000 per offence). See question 8 above.
  14. What is the maximum fine that the Crown Court can impose for one offence?
    There is no statutory limit to the amount of fine which may be imposed by the Crown Court.

    [See BCP 2013 E15.1]
  15. List the requirements which the court may attach to a community sentence.
    • An unpaid work requirement
    • An activity requirement
    • A programme requirement
    • A prohibited activity requirement
    • A curfew requirement
    • An exclusion requirement
    • A residence requirement
    • A mental health treatment requirement
    • A drug rehabilitation requirement
    • An alcohol treatment requirement
    • A supervision requirement
    • In a case where the offender is aged under 25, an attendance centre requirement.

    See s. 177 CJA 2003.

    [BCP 2013 E8.9]
  16. What is the minimum duration of an unpaid work requirement?
    40 hours. CJA 2003, s.199.

    [BCP 2013 E8.12]
  17. What is the maximum duration of an unpaid work requirement?
    300 hours. CJA 2003, s.199(2).

    [BCP2013 E8.12]
  18. What is the maximum number of days for an activity requirement?
    60 days

    [BCP 2013 E8.13]
  19. What is the maximum duration of a curfew requirement?
    A curfew requirement within a community order must not last for more than 6 months from the day on which it is made.

    [CJA 2003, s.204(3).]
  20. In relation to a community order with a curfew requirement, what is the minimum number of hours per day that an offender must remain at a place specified by the court?
    Not less than 2 hours.

    [CJA 2003, s.204(2); BCP 2013 E8.16]
  21. In relation to a community order with a curfew requirement, what is the maximum number of hours per day that an offender must remain at a place specified by the court?
    Not more than 12 hours.

    [CJA 2003, s.204(2), BCP 2013 E8.13]
  22. Before imposing a drug rehabilitation requirement on an offender, what must the court be satisfied of?
    The court must be satisfied that the offender is dependent on, or has a propensity to misuse, any controlled drug (as defined by MDA 1971, s.2) and that his dependency or propensity is such as requires and may be susceptible to treatment (s.209(2)(a)). The court must also be satisfied that arrangements have been made or can be made for the proposed treatment (s.209(2)(b)), and that the insertion of a drug rehabilitation requirement has been recommended to the court as being suitable for the offender by an officer of the local probation board (s.209(2)(c)). The offender must express his willingness to comply with the requirement (s. 209(2)(d)).

    [BCP 2013 E8.21]
  23. In what circumstances is a court obliged to obtain a pre-sentence report?
    The CJA 2003 places an obligation on the court to obtain a pre-sentence report in 2 circumstances:

    1) In determining whether a custodial sentence should be imposed. [s156(3)(a) CJA 2003]

    2) Before forming an opinion as to the suitability of an offender for various types of community order [s156(3)(b) CJA 2003].

    [See BCP 2013 D20.68]
  24. In respect of an adult offender, who will write the pre-sentence report?
    Pre-sentence reports on adults are compiled by probation officers.
  25. What is a compensation order?
    The requirement of a court that an offender pay compensation for injury, loss, or damage resulting from an offence, either in preference to or as well as a fine.
  26. What is a bind over?
    Binding over is a precautionary measure to be adopted when there are reasonable grounds to anticipate some present or future danger. It is not a conviction or a punishment. It should not be used for an act which is past and which is not likely to be repeated. It should not be used as an alternative measure for dealing with cases in which the prosecution has insufficient evidence to substantiate a charge.

    Applications to bind a person over may be made in a variety of circumstances: e.g. for minor assaults inside private premises where there are no truly independent witnesses; continuing domestic disputes; or for minor cases where it is obvious that both parties are at fault with no independent evidence to support either party's counter-allegation.
  27. What is a community order? What are some examples?
    Offenders sentenced to a community order serve their whole sentence in the community rather than prison.  But they could be sent to prison if they do not comply with the order. A community order is made up of one or more of the following requirements.  These are decided by the court: 

    Supervision.  The offender must attend regular appointments with a Probation Officer.

    Community Payback.  Formerly known as community service or unpaid work, this involves carrying out between 80 and 300 hours of unpaid work for the community. This can be, for example, painting and decorating, gardening,environmental clean-up projects, work with charities or graffiti removal. 

    Offending Behaviour Programme. The offender must attend a group or one-to-one programme designed toaddress attitudes and patterns of behaviour that lead to offending, such as programmes for drink-drivers, sex offenders or those whomisuse drugs. 

    Curfew. The offender must stay indoors for certain periods at a specified place, usually their own home, for up to six months.  Electronic monitoring, known as “tagging”is commonly used to enforce the curfew. 

    Drug rehabilitation.  The offender must have treatment to reduce or eliminate dependency on or tendency to misuse drugs, and provide samples when asked.  The offender must consent to the order. Alcohol treatment.  The offender must attend treatment to reduce or eliminate dependency on alcohol. The offender must consent to the order. 

    Mental health treatment.  The court must be satisfied that the offender’s mental condition requires treatment.  The offender must consent to the treatment. 

    Residence.  The offender must reside at a specified place. This may be Approved Premises managed by the Probation Service.  Find out more about Approved Premises. 

    Exclusion (usually with electronic monitoring). The offender may not enter a specified place fora period of time.

    Attendance centre (for 18 – 24 year olds).  The offender must attend a centre for between 12 and 36 hours. Attendees focus on developing their social skills at the same time as challenging their offending behaviour.

    Prohibited activity. The offender is barred from certain activities, for example attending a footballmatch or going to a pub, on a particular day or days for a period determined by the court. 

    Specified activities (for up to 60 days).  These can include reparation to victims or work on to improve their basic skills such as literacy and numeracy.

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