Criminal Litigation and

Advocacy
Sentencing
Sentencing
 Following a plea of guilty or a conviction after a trial the defendant will be
sentenced.

 As the vast majority of defendants appearing before the court plead guilty
prosecutors and defence solicitors spend a large proportion of their time dealing
with sentencing.

 The role of the CPS on sentence

 The prosecutor should draw the court’s attention to the following:

 the relevant sentencing guidelines or guideline cases

 any aggravating or mitigating factors
 any other sentencing provisions or ancillary orders
 any victim impact statement or CCTV
 any evidence of the impact the offending has had on the community if relevant.
Purposes of sentencing: Section 54 Sentencing Code 2020

 Any court dealing with an offender in respect of an offence

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
 e. the making of reparation by offenders to persons affected
by their offences
 No reference to which is more important than the other.
Determining the seriousness of an offence
The fundamental principle is that a sentence should not be more severe
than the offence warrants.
The statutory aggravating factors are contained in Ss 63-67 Sentencing
Code 2020:
(63) The offender’s culpability in committing the offence and harm caused
(64) An offence committed on bail is an aggravating factor
(65) Previous convictions are an aggravating factor
(66) Racial/religious/ disability/sexual orientation/transgender aggravation
(67) Committed against an emergency worker

In addition to statutory aggravating factors, the court will consider any

offence specific aggravating and mitigating factors of the offence itself with
reference to the applicable sentencing guideline.
Reduction in sentences for guilty pleas

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 saves victims from having to give evidence and saves public
time and money on trials.
A guilty plea produces greater benefits the earlier the plea is entered. So a reduction in
sentence is provided as an incentive to those who are guilty to indicate a guilty plea as early as
possible.
Section 73 Sentencing Code 2020
a) the stage in the proceedings for the offence at which the offender indicated his intention to
plead guilty, and
b) the circumstances in which this indication was given
Sentencing Council guidance regarding credit:
Guilty plea at the earliest opportunity = one third
Guilty plea after trial date has been set = one quarter
Guilty plea on the date of trial = one tenth
The Approach:
Stage 1: Determine the appropriate sentence for the offence(s) in accordance with any offence
sentencing guidelines.
Stage 2: Determine the level of reduction for a guilty plea in accordance with this guideline.
Stage 3: State the amount of that reduction.
Stage 4: Apply the reduction to the appropriate sentence.
Stage 5: Follow any further steps in the offence guideline to determine the final sentence.
 What informs the process of sentencing?

 Pre-sentence reports: Section 30 Sentencing Code 2020

 The court must order a PSR unless the offender is over 18 and the court is
of the view such a report would be unnecessary.
 Full PSR
 Fast delivery reports or specific sentencing reports
 Probation officers have no duty of confidentiality
 Other Reports:
 Medical and psychiatric reports

 Victim Impact Statements – Statement made by the victim detailing the

effect the offence has had on them.

 CCTV – if the offence was caught on camera, then it is highly likely that the
court will view the same.

 Taking other offences into consideration (TICs) – offences that the

defendant is not convicted of but has made an admission to which the
defendant asks the court to take into consideration. The defendant receives
a higher sentence but he cannot be later prosecuted for those offences.
Sentencing Guidelines
The Sentencing Council
 Sentencing is underpinned by the guidelines issued by the Sentencing Council (SC).
 To develop consistency in sentencing, all courts must follow the guidelines unless it is in the interests
of justice not to do so.
 Sentencing Guidelines in the Crown court
 Sentencing decisions formed by the Court of Appeal are used to inform sentencing in the Crown
court. The SC has now formulated a number of guidelines but if there are no definitive guidelines
then the COA decisions still apply. There is a useful compendium of such COA decisions on the SC
website.

 Magistrates Sentencing Guidelines

 The Magistrates Court Sentencing Guidelines have been a settled feature of magistrates' courts for
many years. This is the most extensive set of guidelines produced by the Council and covers most of
the offences regularly coming before the magistrates' courts, which require decisions on allocation or
on sentence.
 The guidelines also contain explanatory material that sets out a common approach to more general
issues.
 For the first time, there is a statutory obligation on every court to have regard to these guidelines in a
relevant case and to give reasons when imposing a sentence outside the relevant range.

 Offence Specific Guidelines

 The approach to applying offence specific guidelines can be found in the General Guideline:
Overarching Principles (2019)
OER GUIDE
Length of sentence

 1. Crown Court
 May impose any penalty up to the maximum prescribed by law for the offence.
 2. Magistrates Court
 Maximum sentence for each offence.
 Single Summary offence: 6 months or less as statute prescribes
 Single Either way offence: 6 months or less as statute prescribes
 Maximum aggregate for 2 or more offences.
 All Summary offences: 6 months in total
 2 x Either way offence: 12 months in total
 Summary offence/s plus
 1 x Either way offence: 6 months in total
 2 x or more Either way offences: 12 months in total
 3. Committal for sentence:
  Following plea before venue procedure - Section 18 Sentencing Code
  Following summary trial – Section 14 Sentencing Code
 Types of sentences
 Custodial Sentences:
The
be as approach
follows: to the imposition of a custodial sentence should
1) Has the custody threshold been passed? Section 230
Sentencing Code
A
thecustodial sentence
combination of must
the not be imposed
offence and one unless
or the offence
more offences or
associated with it was
community sentence can sobeserious
justifiedthat neither
for the a fine alone nor a
offence.
There
The is no general definition
circumstances of the of where the
individual custody
offence and threshold
the lies.
factors
assessed
offence by
sooffence-specific
iscan serious that Where guidelines
neither a fine will determine
alone whether
nor a guideline
community an
sentence
available be justified.
to culpability
determineof the seriousness, no offence
theany specific
harm caused by the is
offence, the
will be relevant to the assessment. offender and previous convictions
The clear intention
punishment of the
for the most threshold
serious test is to reserve prison as a
offences.
2) Is it unavoidable that a sentence of imprisonment be
imposed?
Passing the
sentence custody
should threshold
be deemed does notCustody
inevitable. mean that a custodial
should not be
imposed
restriction where
on an a community
offender’s liberty order
(by could
way of provide
punishment) sufficient
while
addressing
crime. the rehabilitation of the offender to prevent future
For offenders
imposed where onthere
the cuspwould of custody,
be an imprisonment
impact should not
on dependants which be
would make a
aims of sentencing.custodial sentence disproportionate to achieving the
3) What is ofthe
seriousness shortest term commensurate with the
the offence?
In considering
sentence this the court
supervision must NOTwhich
requirements considermayany licence or post
subsequently be
imposed upon the offender’s release.
4) Can the sentence be suspended?
A suspended
form sentence
of community MUST
order. NOT be imposed
A suspended sentence as aismore severe
a custodial
sentence.
Sentencers
custodial should bethe clear that to
they would impose
were notanavailable.
immediate
not, a non-sentence
custodialifsentence power shouldsuspend
be imposed. If
 Types of sentences
 Time spent in custody prior to sentence:

 Time spent on remand awaiting trial automatically counts towards sentence and time
spent on bail subject to an electronically monitored curfew of 9 hours or more may count
as time served by the offender as part of the sentence, but the court must make a
direction to this effect. This is calculated and applied administratively by the prison
authorities.

 Fixed Length Sentences:

 In some cases, the length of a custodial sentence is fixed by law and the court does not
have a discretion as to whether a custodial term should be imposed or not. Those
convicted of Murder will receive a mandatory sentence of life imprisonment.

 Mandatory minimum sentences under Section 313-314 Sentencing Code 2020

 Apply to certain offences whereby the court is required to impose the minimum statutory
term unless it would be unjust to do so.
 Example: Third domestic burglary attracts a minimum sentence of 3 years.
 Suspended Sentences: Section 286 - 305 Sentencing
Code
Suspended Sentences:
1. If the court imposes a term of imprisonment of between 14 days and 2 years (subject
to the magistrates’ courts sentencing powers), it may suspend the sentence for
between 6 months and 2 years (the ‘operational period).The time for which a
sentence is suspended should reflect the length of the sentence; up to 12 months
might normally be appropriate for a suspended sentence of up to 6 months.
2. Where the court imposes 2 or more sentences to be served consecutively, the court
may suspend the sentence where the aggregate of the terms is between 14 days
and 2 years (subject to the magistrates’ courts sentencing powers).
3. When the court suspends a sentence, it may impose one or more requirements for
the offender to undertake in the community. The requirements are identical to those
available for community orders.
4. A custodial sentence that is suspended should be for the same term that would have
applied if the sentence was to be served immediately.
Community Orders: Section 200-220 Sentencing Code 2020

Magistrates and Crown Courts may impose Community Sentences.

Community orders can fulfil all of the purposes of sentencing.
In particular, they can have the effect of restricting the offender’s liberty while providing
punishment in the community, rehabilitation for the offender, and/or ensuring that the offender
engages in reparative activities.
 A community order must not be imposed unless the offence is ‘serious enough to
warrant such a sentence’ (Section 204 Sentencing Code 2020).
 Where an offender is being sentenced for a non-imprisonable offence, there is no power
to make a community order.
 Sentencers must consider all available disposals at the time of sentence; even where the
threshold for a community sentence has been passed, a fine or discharge may be an
appropriate penalty.
 The court must ensure that the restriction on the offender’s liberty is commensurate with
the seriousness of the offence and that the requirements imposed are the most suitable
for the offender.
 Sentences should not necessarily escalate from one community order range to the next
on each sentencing occasion. The decision as to the appropriate range of community
order should be based upon the seriousness of the new offence(s) (which will take into
account any previous convictions).
 Save in exceptional circumstances at least one requirement must be imposed for the
purpose of punishment and/or a fine imposed in addition to the community order. It is a
matter for the court to decide which requirements amount to a punishment in each case.
Types of Community Sentences
• An unpaid work requirement
• A rehabilitation activity requirement
• A programme requirement
• A prohibited activity requirement
• A curfew requirement
• An exclusion requirement
• A foreign travel requirement
• A mental health treatment requirement
• A drug rehabilitation requirement
• An alcohol treatment requirement
• An alcohol abstinence and monitoring requirement
• An attendance centre requirement
Types of Sentences
 Discharges: Section 79-82 Sentencing Code 2020
 1. Nature
 Absolute
 Conditional
 2. When appropriate
 3. Term
 Fines: Section 118-132 Sentencing Code 2020
 1. Nature
 2. When appropriate
 Most common penalty in Magistrates Court, not so common in the Crown Court.
 Level should be pitched to punish but not to demoralise.
 3. Amount
 • Court must have regard to the seriousness of the offence and then may adjust the fine actually imposed
by having regard to the defendant's means (so far as it is known to the court).
 • Where a custodial sentence is to be imposed the offender should not have outstanding financial
obligations hanging over him on release.
 Binding Over: Section 376-378 Sentencing Code 2020
 1. Nature
 2. When appropriate
Ancillary Orders:

The court may also impose ancillary orders on a defendant convicted of a criminal offence. The
most common types are set out below

(1) Prosecution Costs

(2) Compensation Orders: Section 133-146 Sentencing Code 2020

(3) Confiscation Orders: Section 152-161Sentencing Code 2020

(4) Forfeiture Orders

(5) Victim Surcharge

(6) Criminal Behaviour Order

(7) Restraining Order

 THE SENTENCING PROCEDURE
Sentence is based on the seriousness of the offence defined by the offender’s culpability
in committing the offence and the risk of harm caused
A court will have a sentencing purpose in mind when imposing a particular sentence
The seriousness of the offence(s) is determined by:
Aggravating factors of the offence/mitigating factors of the offence
Statutory aggravating factors which include:
Offences committed whilst on bail and previous offending ,
Religiously aggravated, Racially aggravated
Motivated by a person’s sexual orientation, disability or transgender identity
Emergency worker
Identify the aggravating and mitigating features
Sentencing guidelines will give an indication of the starting or entry point for the type of
sentence and overall range available to the court
The court will take account of the offender’s personal mitigation
The court arrives at sentence
Court applies any sentencing discount to take into account of a guilty plea
 Preparing a plea in mitigation from the defence perspective
The Offence:
Put forward your client’s explanation as to how the offence came about (having regard to the
prosecution case). Here you will bear in mind the offence specific aggravating and mitigating
factors the court will consider. Remember there are general aggravating and mitigating factors i.e.
premeditated/spur of the moment, and factors specific to each offence. Try to present the facts in
a positive light without minimising the seriousness.

Consider:
The circumstances surrounding the commission of the offence from your client’s point of view
Defendant's relative responsibility if there were co-accused
Degree of premeditation – if any
Relative gravity
Effect of alcohol/drugs
Offence specific mitigating factors – look at sentencing guidelines
Offences specific aggravating factors– look at sentencing guidelines

Credit:
Guilty plea at the earliest opportunity = one third
Guilty plea after trial date has been set = one quarter
Guilty plea on the date of trial = one tenth
Preparing a plea in mitigation from the defence perspective
The Offender - personal circumstances
The court will consider any personal factors, which might have led to the commission of the offence.
They would be particularly interested to know why a person, with no previous record, has now
committed an offence.
Defendant's age and background:
The effect of the conviction on the defendant/family
Any record, particularly if there is:
any apparent pattern of offending
a significant breach in pattern
a long time out of trouble
a different and less serious type of offence
a breach of an existing order/compliance with previous orders
Any current social problems or changes:
loss of job, or a new job
breakdown or formation of emotional relationships wider family relationships

Where the D pleaded guilty or now accepts guilt any evidence of contrition/remorse:
attempts at compensation
assistance to the police
attempts at rehabilitation
Preparing a plea in mitigation from the defence perspective
Sentence:
Magistrates/Crown court sentencing guidelines:
What bracket?
What is the starting point?
What range?
Threshold Tests:
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
(s.230 Sentencing Code 2020).
Imprisonment is only imposed where there is no alternative to a custodial sentence.
There is also a threshold test for community orders: s.204 Sentencing Code 2020 states
that the offence must be “serious enough” to warrant such a sentence as community
sentences all involve some interference with liberty.
Consider types of sentence: custody, suspended sentence, community orders, fines,
discharges.
Ancillary orders: prosecution costs, forfeiture orders etc