The court has a range of sentencing options in relation to an adult offender. Custody the most serious as well as community sentences, fines, discharge and other ancillary orders.
A custodial sentence should only be imposed where the offence or the combination of offences is so serious that neither a fine alone nor a community sentence can be justified. This is described as the custody threshold test and can be found in s 152(2) CJA 2003. The duration of the custodial sentence must be commensurate with the offence and the court should always give reasons for the sentence passed.
Custodial sentences of 12 months or more under the CJA 2003 would mean half a custodial term spent in custody and half on licence. During the licence period conditions will attached and may also be drug tested to ensure compliance with licence conditions.
These will be imposed where the court is satisfied that the offence is serious enough to warrant it. S148 (1) CJA 2003.A single community sentence imposes one or more requirements on the offender which could include unpaid work, curfew, residence requirement and drug or alcohol rehabilitation requirement.
The offender's financial circumstances will be considered and the fine must reflect the seriousness of the offence.
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The offender can be conditionally discharged for a period of up to three years. If he does not reoffend during this period he will not be punished however if he does the defendant would not only be sentenced for the new matter but could be resentenced for the offence for which he received the conditional charge. In the case of an absolute discharge the defendant is not being punished although a conviction is recorded against him.
These include compensation orders where the court is required to order compensation for an injury loss damage etc. A magistrate can order compensation of up to £5000 and compensation in the Crown Court is unlimited. The defendant can also be ordered to pay the prosecution costs. Anti social orders, restraining orders and deportations are other ancillary orders that can be made by the court.
Sentencing in Road Traffic Cases
Road traffic cases are frequently tried in magistrates courts and special sentencing considerations apply.
You must ensure that the client brings his driving licence to court and ensure that beforehand you have researched the offence and sentencing guidelines. Scrutinise your client's driving licence and see if there are any past endorsements or disqualifications.
Obligatory disqualification: this is where the driver will be disqualified from driving for a minimum period of 12 months
Discretionary disqualification: where the court orders penalty points it can also order disqualification. The period of disqualification is a matter for the court but if the disqualification is for more than 56 weeks the licence is revoked.
Obligatory endorsement: this relates to specific offences where the licence is endorsed with penalty points depending on the seriousness of the offence. The only way to avoid this is to establish ‘special reasons' which are mitigating or extenuating circumstances which is connected with the commission of the offence, not personal to the offender and does not constitute a defence to the charge. These could include emergencies, laced drinks and the shortness of the distance.
Disqualification under the totting up procedure s35 Road Traffic Offenders Act 1988: if there are 12 or more penalty points endorsed on the defendant's driving licence within the last 3 years the defendant would be liable to disqualification for at least 6 months as a ‘totter'. In making its decision the court will take into account points endorsed for the present offence and any points endorsed for offences committed within the last three years. In his defence and to avoid disqualification the defendant could argue exceptional hardship if his licence is needed in order to carry out a specific job.
Sentencing in Practice
Defendant Found Guilty: the procedure is normally the same in the magistrates and crown courts. The court would have heard all the evidence and be aware of the facts of the case. The court will also have the defendant's criminal record. The case may be adjourned in order to compile a pre sentence report. The defence counsel will put forward a plea in mitigation which are reasons why the court should look favourably on your client including personal circumstances and your client's attitude towards the offence. The court will then sentence the defendant and give reasons for it decision.
Defendant pleads guilty: Again the procedure is the same in the magistrates and crown court. The court will have defendant's criminal record and will adjourn if there is a need for a pre sentence report. If there is a dispute about the facts of the offence a Newton Hearing will be held to determine the disputed facts and evidence will be called.