Criminal Litigation SGS 11 Custodial Sentences

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billsykes
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210154
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Criminal Litigation SGS 11 Custodial Sentences
Updated:
2013-03-30 13:27:29
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Criminal Litigation SGS 11
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Criminal Litigation SGS 11
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  1. 1. Derek, aged 27, has been convicted of burgling a house in Gladbury. Since 2007, his previous convictions show that he has also been convicted of possession of Class A drugs, theft, possession of a bladed article, and 2 offences of domestic burglary. Consider the following propositions regarding the sentence the court will impose for the current offence.

    Which of the following is CORRECT?

    A. The court must impose a sentence of 7 years for this offence.

    B. The court must impose a sentence of 5 years for this offence.  

    C. The court must impose a sentence of at least 3 years for this offence, unless the court regards it as unjust to do so.

    D. The court may impose a sentence of at least 3 years for this offence, unless the court regards it as unjust to do so.
    • C. The court must impose a sentence of at least 3 years for this offence, unless the
    • court regards it as unjust to do so.

    • [CORRECT: D is over 18, convicted of domestic burglary, and has 2 previous convictions
    • for burglary convicted after 30.11.99, so court must sentence to at least 3
    • years unless unjust]
  2. Jeremy has been convicted of twelve armed robberies.  He has previous conviction in 1995 for which he received a sentence of 14 years imprisonment for his involvement in 7 armed
    robberies.  The Judge is considering passing a sentence of 18 years. 

    Consider the following propositions regarding the sentence the court will impose for the current offence.

    Which of the following is CORRECT?

    A. The court may not pass a sentence of life for a second offence.

    B. The court must impose a mandatory life sentence.

    C. The court must pass a sentence of discretionary life imprisonment if the court is
    satisfied that the offender is dangerous and that life imprisonment is justified. 

    D. The court must consider whether it should pass a sentence of discretionary life
    imprisonment.   If the criteria are not met then it must pass an extended sentence unless it would be unjust to do so.
    • C. The court must pass a sentence of discretionary life imprisonment if the court is
    • satisfied that the offender is dangerous and that life imprisonment is justified.  

    [CORRECT: this correctly states the test in s225 CJA 2003]
  3. In relation to extended sentences for those aged 18 or over convicted of a specified offence, consider the following propositions.

    Which of the following is CORRECT?

    A. If the defendant has a previous conviction for a schedule 15B offence and the court would otherwise pass a custodial term of 2 years or more, it may impose an extended sentence.

    B. If the defendant is considered by the court to be dangerous then it may impose an extended sentence provided it would otherwise pass a custodial term of 4 years or more or the defendant has a previous conviction for a schedule 15B offence

    C. If the defendant has a previous conviction for a schedule 15B offence and the court would otherwise pass a custodial term of 4 years or more, it may impose an extended sentence.

    D. If the defendant is considered by the court to be dangerous then it may impose an extended sentence provided it would otherwise pass a custodial term of 2 years or more and the defendant has a previous conviction for a schedule 15B offence
    B. If the defendant is considered by the court to be dangerous then it may impose an extended sentence provided it would otherwise pass a custodial term of 4 years or more or the defendant has a previous conviction for a schedule 15B offence

    [CORRECT: These are the extended sentence criteria]
  4. Which of the following statements, regarding custodial sentences, is CORRECT?

    A. If the seriousness of an offence warrants either a Community Order or a Custodial Sentence, the Defendant can probably expect to receive a Custodial Sentence;

    B. If the seriousness of an offence does not justify a custodial sentence, the court can impose a suspended sentence instead;

    C.    If the court finds that the requirements of a Community Order would be inconvenient
    to a Defendant, the court should sentence him/her to a Suspended Sentence
    instead;

    D. The court must not pass a custodial sentence unless the offence was so serious that neither a fine alone, nor a community sentence, can be justified for the offence.
    • D.    The court must not pass a custodial sentence unless the offence was so
    • serious that neither a fine alone, nor a community sentence, can be justified
    • for the offence.

    • [CORRECT: this is the test
    • for passing a custodial sentence: section 152(2) CJA 2003]
  5. What is the purpose of sentencing?
    Section 142(1) Criminal Justice Act 2003 provides: 

    “(1) Any court dealing with an offender in respect of his offencemust 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.”
  6. What test will the court use in deciding whether an offence warrants a custodial sentence?
    Section 152(2) Criminal Justice Act 2003 provides: 

    “(2) The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
  7. How is the seriousness of an offence determined by a court?
    Section 143 Criminal Justice Act 2003 provides: 

    “(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused. 

    (2) In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to-

    • (a) the nature of the offence to which the conviction relates and its relevance to
    • the current offence, and

    (b) the time that has elapsed since the conviction.

    • (3) In considering the seriousness of any
    • offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravating factor.”
  8. Under what circumstances is a court required to impose a minimum fixed term sentence for the offence drug trafficking?
    Drug trafficking:

    a person is convicted of class A drug trafficking committed after 30.09.97; and   

    at the time of the offence, he was 18 or over; and

    had been convicted in UK of two other class A drug trafficking offences; and

    one of those other offences was committed after he had been convicted of the other;

    THEN the court must impose an ‘appropriate custodial sentence’ for a term of at least 7 years; UNLESS it would be unjust to do so.

    Where the above applies, the offence is treated as indictable only (whereas ordinarily aneither-way offence).
  9. What approach should courts take in cases that are on or near the custody threshold?
    See R v. Howells [1999], where Lord Bingham CJ said,it would be dangerous and wrong for CA to lay down prescriptive rules.

    in approaching cases which were on or near the custody threshold, courts would usually find it helpful to begin by considering the nature and extent of the defendant’s criminal intention and the  nature and extent of any injury or damage caused to the victim.

    Other things being equal, an offence which was deliberate and premeditated would usually be more serious than one which was spontaneous or which involved an excessive response to provocation;

    an offence which inflicted personal injury or mental trauma, particularly if permanent, would usually be more serious than one which inflicted financial loss only;

    court will take account of matters relating to offender, such as an admission of responsibility, particularly if offender pleaded guilty at the first opportunity and has expressed genuine remorse;

    addicts will probably be viewed more favourably if demonstrated a genuine, self-motivated determination to address the addiction;

    a measure of leniency is ordinarily extended to offenders of previous good character.
  10. With reference to the Dangerous Offenders provisions in Chapter 5 of the Criminal Justice Act 2003, what is a ‘specified offence’?
    an offence is a ‘specified offence’ for the purposes of this Chapter if it is a specified violent offence or a specified sexual offence
  11. With reference to the Dangerous Offenders provisions in Chapter 5 of the Criminal Justice Act 2003, what is meant by ‘dangerous’?
    Section 229(1) refers to dangerousness, namely whether there is a significant risk of serious harm occasioned by the commission of further offences by him.
  12. What is a ‘suspended sentence’?
    A suspended sentence is a custodial sentence, so the custody threshold test must be met before one can be imposed. It applies to sentences of both imprisonment (21 and over) and detention (18-21s – note: not available for DTOs), but the effect of the suspended sentence is that the custodial sentence is not to have effect unless the D fails to comply with a particular requirement specified in the order, or commits another offence during the order
  13. You are instructed to represent Walter, aged 58, who has been convicted of a specified sexual offence listed in schedule 15 of the Criminal Justice Act 2003. The court has a psychiatric report that says Walter presents a continuing risk to children under 10. The Judge says that he would ordinarily pass a sentence of 6 years imprisonment but wants assistance from Counsel as to which other custodial sentences might be available to him.

    What are the criteria that must be met for the court to pass an extended sentence [4 marks]
    The court must consider Walter to be dangerous [1 mark]

    The court must not be required to pass a life sentence (discretionary or second listed offence [1 mark]

    Condition A must be met – that he has a previous conviction for a schedule 15B offence [1 mark]

    OR Condition B must be met – that the court would pass a custodial term of at least 4 years. [1 mark]

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