#3737 - Sentencing - BPC Criminal Litigation (formerly BPTC) 2024/2025

The offender’s culpability is a key factor when sentencing, and this is affected by a number of factors:

1. Committing offence while on bail;

2. Failure to respond to previous sentences;

3. Offence was racially or religiously aggravated;

4. Offence motivated by sexual orientation of the victim;

5. Previous convictions, particularly a pattern of re-offending;

6. Planning the offence;

7. An intention to commit more serious harm than actually resulted;

8. Offenders operating in groups or gangs;

9. ‘Professional’ offending;

10. Commission of the offence for financial gain;

11. High level of profit from the offence;

12. An attempt to conceal or dispose of evidence;

13. Offence committed while on licence;

14. Deliberately targeting vulnerable victims;

15. Use of a weapon to frighten or injure victim;

16. Deliberate and gratuitous violence or damage to property, over and above that required for the commission of the crime;

17. Abuse of power; and

18. Abuse of trust.

Max. 1/3 off sentence if pleaded at first reasonable opportunity.

Max. 1/4 off sentence if pleaded after trial date is set.

Max. 1/10 off sentence if pleaded at ‘door of court’ or after trial has begun.

Any breach will result in the offender being given a warning.

Any further breach within 12months of a previous breach will result in D being brought before the court again, and the court can:

1. Amend the terms of the order;

2. Impose a new sentence (a long as within the powers for the original sentence) (although can imprison even if not over threshold);

3. Pass a custodial sentence for wilful and persistent non-compliance.

[Adult] Mags’ Powers for Custodial Sentences

What is the maximum custodial sentence available to the Mags’?

Summary offences: 6months, or that prescribed by the statute, whichever is less!

An either way offence: 6months, or that prescribed by the statute, whichever is less!

Two or more either-way offence: Max. aggregate of 12months.

Threshold: Offence/s so serious that neither a fine alone nor a community order can be justified for the offence.

Factors considered when deciding if threshold has been crossed:

• An admission of guilt;

• Offence fuelled by addiction to alcohol or drugs;

• Youth or immaturity;

• Character (whether D is of good character or has previous antecedents); and

• Only if custody is necessary!

First breach: either warning or breach proceedings

Any further breach with 12months of first breach: breach proceedings

Breach proceedings have a presumption that the suspended sentence will be activated. However, the court can reduce the sentence or amend the suspended sentence order (imposing harsher requirements and extending the operational and supervision periods) if it feels it would be unjust to activate the sentence.

Where D has been convicted of a specified offence (a violent offence set out in Part 1 of Schedule 15 of the CJA 2003) or a serious offence (a violent or sexual offence specified in Sch. 15 and punishable with life imprisonment or a determinant sentence of 10yrs or more, the court can impose imprisonment for public protection where:

1. D is over 18; and

2. Court is of the opinion that D is a significant risk to members of the public to do serious harm by committing further specified offences.

Special Rules:

1. If offence is punishable by life imprisonment and such a punishment is justified, a life sentence MUST be given.

2. If offence is punishable by at least 2yrs, or D has one or more previous convictions for specified offences, the court can imprison D for an indeterminate period.

3. The court can impose an extended sentence if D has one or more previous convictions for specified offences or the term extended term imposed would be more than 4yrs.

• 3 lay magistrates;

• Required to be a mixed gender bench (at least one penis and one vagina) (unless unforeseen circumstances and mags’ don’t feel it expedient to adjourn proceedings to see if a mixed bench can be formed).

No, there is a ban on the media reporting anything that may identify the child. However, this may be lifted if:

1. Defence apply for it to be lifted (to increase media attention);

2. Prosecution apply for it (Y is a large); or

3. Court decides after conviction that it is in the public interest.