(a) Describe the custodial and community sentences available for adult offenders convicted in both the Magistrates' Court and the Crown Court.

Transcription

1 Sentencing Adult Sentencing. By the end of this unit you will be able to (AO1): Understand the different kinds of custodial sentences available for adults Explain the other sentences which an adult offender may receive. You will also be able to (AO2): Apply your understanding of the sentences to a range of scenarios. Homework Law has no coursework, and as such, the homework is an important assessment tool to evaluate your work in the subject. You are reminded that if a homework is not handed in on time, you will have 24 hours to get it to your teacher. Complete the question below: (a) Describe the custodial and community sentences available for adult offenders convicted in both the Magistrates' Court and the Crown Court. [18] (b) Dimitri, who has two previous convictions for minor assaults, broke a shop window whilst drunk and has been convicted of criminal damage in the Magistrates' Court. Explain which aims of sentencing are likely to be considered when deciding the sentence for Dimitri and suggest possible sentences. [12] End of Unit Assessment: You will be assessed through a 30 mark DRAG test, on the whole of sentencing, once we have also looked at youth sentencing. You should also be aware that the question assessed for homework is part of your assessment and monitoring to see how you are progressing at AS. Remember to bear in mind your ALPS and target grade in completing work. Aim for the best! Remember: You will sit a mock exam in the first week of next term and your knowledge of this and the other ELS topics covered so far this year will be needed for it! 1

2 Custodial Sentencing So what does a prison cell actually look like? 2

3 What is a custodial sentence? This is the most serious of the sentences, as it affects the liberty of D and can have an impact on their entire life (jobs, family etc.) Under the Criminal Justice Act 2003 s. 152, the court should only impose a custodial sentence if the offence is so severe that neither a fine alone nor a community sentence can be justified. Remember: adult custody refers to those over the age of 21. Between 18 and 21, they go to a secure Young Offenders Institute. SENTENCE ONE: LIFE SENTENCE This is the most serious sentence which our court system can impose. It is generally a period of up to 25 years which is spent in a prison. The average term served by lifers is 14 years, but they will remain on licence for the remainder of their sentence. There are a number of different types of life sentence. Task: Read the descriptions below and match them to the titles. Mandatory Life Sentence This depends on the circumstances of the crime and D s responsibility. It includes arson, manslaughter, rape and robbery. Discretionary Life Sentence This means actual life, and is reserved for the most serious offences (remember The Times article?) those of the multiple murderers, sexual sadists etc. Whole Life Tariff Murder. The controversy here is over the tariff set. It can be whole life, or 30 years [police or prison officers; race or sexual motives], or 15 years for others. 3

4 SENTENCE TWO: EXTENDED SENTENCE Powers of the Criminal Courts (Sentencing) Act 2000 s.85. Where the crime is particularly sexual or violent, D may be sentenced to this, which involves a period in custody, and an extended period on licence 10 years for sexual [remember that sexual offenders also have to register] 5 years for violent SENTENCE THREE: INDETERMINATE SENTENCE aka Imprisonment for Public Protection (IPP). This applies to offenders convicted of a specified sexual or violent offence (around 153 of them!) carrying a maximum penalty of 10 years imprisonment or more (known as serious specified offences ) and who are considered by the courts to be dangerous. Applies to adults and young offenders. They are given a minimum tariff, but will remain in custody until they can be proven not to be a risk to the public. The idea is that the parole can be delayed if they are still seen as a risk. So, what does this mean in practice? Well read the brief case below (a genuine one!) and then explain how this is an indeterminate sentence: An 18-year-old man has been given an indeterminate sentence for setting two bins on fire in north Devon. Answer the questions at the end of the article. SENTENCE FOUR: MANADTORY SENTENCE These are sentences where the minimum term is laid down in statute. This removes the judge s discretion to sentence on the basis of the individual cases, and often occurs where crimes have become public focuses. e.g. Powers of Criminal Court (Sentencing) Act years for a third class A drug trafficking offence 3 years for a third conviction of burglary Life for a second serious sexual or violent assault 4

5 More recently, this has included knife possession. Very often this is in response to an outbreak of a particular crime in the media. Possession of a knife now carries a mandatory years SENTENCE FIVE: SUSPENDED SENTENCE This is where the time is custody is suspended for a period. The length of the sentence varies between 6 months and 2 years. This can be suspended for 1 to 2 years. During the suspended period, D may be asked to complete some community work. If D commits a further offence whilst under this sentence, then he will have to serve it in custody in addition to any sentencing for the further offence. SENTENCE SIX: FIXED TERM SENTENCE These are any term where the judge stipulates the amount of time you must spend in custody. e.g. You are sentenced to 6 months for assault. SENTENCE SEVEN: HOME DETENTION CURFEW Crime and Disorder Act 1998 These can apply to prisoners who are serving sentences of three months or over but less than four years. They are released on licence, and have to stick to a curfew (normally enforced by tagging). This is not an automatic right. They spend an amount of time in prison (from days) 5

6 WHEN MIGHT YOU BE RELEASED? Each sentence is comprised of two elements: the time spent in custody, and the time on parole (licence) Well, there are set rules for this as well. Less than 4 Years Over 4 years Life Sentence ½ way through the sentence. Two thirds of the way through the sentence. At the end of the tariff D will then remain on licence for the rest of the term. Remember, that parole may be applied for earlier, but may not be granted. Why do we let people out before the end of their term? Do you agree with the approach of the SGC? Why/why not? Extension Work: Want to know how it works, have a look at this... Q and A: Bulger killer's licence By Dominic Casciani What are the rules governing the life of Jon Venables, who was convicted of the murder of James Bulger? BBC News explains how the parole system works. Why was Jon Venables released from prison in 2001? The tariff is the time that someone sentenced to life must serve to satisfy retribution and deterrence before they can seek release on licence. There is no guarantee that someone will leave jail once their tariff has passed. The European Court of Human Rights later ruled that the boys had the right to have their tariff - broadly, the minimum term - set by a judge rather than a politician. In late 2000, the Lord Chief Justice, Lord Woolf, ruled that enormous efforts had been made to rehabilitate the pair, who were now young men, and that passing them on to a young offenders' institution would run the risk of unravelling the good work. He said their tariff had expired. In 2001 the Parole Board sanctioned their release and the pair were given new identities. The courts placed a lifetime ban on reporting anything about their whereabouts - a highly unusual order reserved for the most serious cases. 6 What factors did the Parole Board take into account when it sanctioned their release? The Parole Board's first duty is to the public - not the prisoner. It asks whether the public will be safe is someone is released. At the heart of the process is a dossier prepared within the prison that covers the criminal, their crime and previous convictions. It can include psychological or psychiatric reports from the time of the offence and subsequent assessments in prison. The prisoner can submit their own arguments and there is also a recommendation prepared by officials on behalf of the justice secretary. It takes months for a Parole Board to assess the material because so much is at stake. Was Jon Venables a free man when he was released? No. Anyone who is sentenced to a form of life imprisonment is never free. They are given an opportunity to rebuild their life, but they always have hanging over them the strict conditions of their licence.

7 The licence, set by the Parole Board and managed by probation officers, is at the heart of the measures to protect the public. In the case of Venables and Thompson, their licence included a ban on returning to Merseyside without written permission in specific circumstances. They were also banned from contacting each other ever again and were settled, with new identities, in undisclosed locations. How was Venables monitored? Anyone on licence must work very closely with the "offender manager", the probation officer who is responsible for monitoring their rehabilitation. High-profile cases such as Venables and Thompson are more complex. In these kinds of life licence cases where anonymity is crucial to public safety, very few people know the full details of the offender's management to prevent information accidentally leaking. An official in the National Offender Management Service will have access to the entire case history - but the probation officer on the ground only knows what they need to do their job. If an offender is a high-profile individual who is protected by an anonymity order, and they are moved to another area, the original probation officer will not be told anything about the offender's future management to maintain that tight circle of confidentiality. How can someone be recalled to prison? Recall to prison is triggered by one of three circumstances. They have either committed a crime, behaved in a way that convinces a probation officer that they were about to, or breached specific conditions. You only have to fail in a very small way for them to decide that your risk has gone up and that you need to go back inside Former inmate John Hirst Breaches can be technical, such as missing the exact start of a curfew or being repeatedly late for probation appointments. But they may also be far more serious, such as ignoring a ban on going to the area where the victim's family live. John Hirst was convicted of manslaughter but eventually allowed out on a licence. On one occasion, he was recalled after his probation officer suspected he was drinking and involved in drugs. He denied the charge and the Parole Board sanctioned his release some three months later. "You only have to fail in a very small way for them to decide that your risk has gone up and that you need to go back inside," he said. "Every day that you are outside, you are looking over your shoulder. You must learn to get on with your probation officer because your freedom depends on that relationship. "If that relationship falls apart, they have the power to have you arrested and taken back to prison." What happens when someone is recalled? A specialist public protection official at the National Offender Management Service takes the decision to recall a prisoner. The police make the arrest and take the criminal to the nearest local prison. The prisoner later receives a letter setting out why their licence was revoked. The prisoner then decides whether to mount a challenge. In some minor cases, the prisoner is released after a month. In more serious cases, the Parole Board receives papers within 28 days and restarts the process. Parole Board panels typically comprise three people, usually chaired by a judge. In the case of Venables, it is highly likely that the panel will need to prepare fresh reports and evidence. James Bulger's family will have the right to have a written statement read out at an oral parole hearing. If the board decides on an oral hearing, rather than dealing with the case on paper, it is normally held in the prison where the offender is being held. Story from BBC NEWS 7

8 COMMUNITY ORDER. Unlike custody, these sentences apply to all of those aged and over. This is more effective at rehabilitation and are supervised by the Probation Service. The order must contain one or more of 12 requirements to fulfil the purposes of sentencing laid out by the courts. The aim is to fit the individual needs of the Offender more appropriately. The requirements of a Community Order are determined by the seriousness of the offence, the Offender s risk and needs. The 12 requirements are as follows: s.177 Criminal Justice Act 2003 Community payback 80 to 300 hours Supervision up to 3 years Programme e.g. sexual Drug rehabilitation treatment & test Alcohol treatment Mental health treatment Residence Specified activity up to 60 days Prohibited activity Exclusion from a place Curfew can be electronic monitored Attendance centre hours, under 25s. 8

9 One of the most important things to remember about these type of sentences is that the offender must consent to them. If they do not, they can not be given a community order. Why might the offender consent to the programme? What happens if they don t attend or do the programme? Well, simple really. The Probation Service return them to court and then they are either given an additional sentence, or re-sentenced for the original offence. This can mean a prison sentence! Read the enclosed Rules and Agreement. Who does it place the burden on? 9

10 FINES s.128 Powers of Criminal Courts (Sentencing) Act 2000 This is the most common type of sentence handed down by the Magistrates Court and is also the most common overall. Remember that the Magistrates can fine individuals up to. and businesses up to They are less common in the Crown Court, where fines are unlimited but they can also be combined with other sentences if the court feels it is appropriate. Why do you think the Magistrates Court hands out so many more fines than the Crown Court? In imposing a fine, the court will consider the seriousness of the offence, and the offender s ability to pay the fine. For youths under 16, it is their parents or carers, who are deemed responsible. There are also strict limits on the amount that youth offenders may pay. What if they don t pay? Well, this is a major problem! Often there are deductions for early payment as well as a neat system where by the Magistrates Court can take the amount directly out of your earnings (Criminal Justice Act 2003). So no excuses! Even then, if you do default, it doesn t necessarily mean that you will be sent directly to prison. The CJA also allows the court to impose unpaid work or curfew requirements instead or disqualify them from driving basically make their lives as uncomfortable as possible! Aiming for A/B? Extension: Read pp of Elliot & Quinn and evaluate the use of fines as a punishment in the courts. 10

11 Other sentences? DISCHARGES This is where D is convicted, but the court thinks that punishment is unnecessary. There are two types: Conditional Absolute D has a criminal record, but no action is taken unless he commits a further offence within a certain period (up to 3 years). At that point, D may be re-sentenced for the original crime. D has the conviction on record, but no further action is taken. Any other types of sentences? There are a number of other sentences which may be handed down by the courts. Use your research skills to explain what is meant by each of these, and link it to one of the aims in sentencing. Sentence Description Aims covered? Depravation & Forfeiture Orders Deferred Sentences Binding over Driving Disqualification ASBO Compensation Order 11

12 Adult Custodial Sentences Across life sentence. Crimes such as arson may have this as a possible sentence (13) 7. Percentage of offenders sentenced to custody (5) 12. Report produced before the offender is sentenced indicating what he should get (11) 13. The longest sentence which the court may had down (4) 14. Initials of the body responsible for 'guiding' sentencing (3) 15. A factor which may reduce the sentence (7) 16. Minimum a lifer must serve before applying to be released on licence (7) Down 1. A period D is sentenced into custody for (5,4) 2. How much an early guilty plea is worth! (5) 3. Less that this amount, means D is released half way through. (4,5) 5. Factors which may increase the sentence (11) 6. Sentence type where D may not go into custody unless he commits a further crime (9) 8. A sentence which must be applied (9) 9. Indeterminate Sentences aim to protect who? (6) 10. Age at which D is sent to an adult prison (9) 11. Number of years D's licence may be extended for a particularly violent crime (3) 12

13 Bin arsonist gets life sentence An 18-year-old man has been jailed for life after setting fire to two wheelie bins in north Devon. Homeless Christopher Brown only caused a few pounds damage when he set fire to the bins in Barnstaple. But Judge Graham Cottle sentenced him under new laws after hearing Brown threatened to commit more crimes if he was released. Brown must serve at least 18 months and show he is no serious risk to people before he is eligible for parole. Judge Cottle called it a "highly unusual case", but said he had to protect the public. of destruction and damage to property. "You admit candidly if you were subject to a community order you would commit a serious offence in order for a long prison sentence to be imposed." "I have to consider the provisions in relation to dangerous offenders and whether there is a serious risk to the public from you committing further offences. You have answered that question yourself." Juliet Lyon, director of the Prison Reform Trust: "Judges are grasping too readily at the straw of indeterminate sentences when they simply do not know what to do in a difficult case." The new legislation applies to people over 18 who commit crimes which are punishable by life. This includes arson, no matter how small. You admit candidly if you were subject to a community order you would commit a serious offence Judge Graham Cottle Why was he given this sentence? TASKS: The court heard that Brown, who admitted the offence, told social workers he intended to commit very serious offences when let out. Peter Ashman, defending, said: "My client is looking for a sentence which is as long as possible. He cannot countenance living in the community at all. "It is a very sad picture and one can only hope that in time he may change his views." Previous convictions Judge Cottle said: "This is a highly unusual case. He says he is going to do something very serious if he is released, he has been convicted of a specified offence and he is 18." He told Brown: "You have a number of previous convictions for offences What about his history and future behaviour might have prompted the court to hand down the sentence? What does it tell us about the crime he committed? Do you agree with the judge? Why/Why not? 13

14 Case 1: DEFENDANT: Joseph Fletcher AGE: 30 OFFENCE: Assault PLEA: not guilty found guilty after a trial FACTS: At approximately on 31 st December, D was involved in an argument outside a takeaway. D and a group of his friends claimed that another group had jumped the queue. V, aged 65, tried to calm the situation but D pushed him to the ground. As a consequence, V had slight bruising to his back but did not need medical treatment. The shop owner phoned the police who arrived on the scene and arrested D D has said that he is very sorry for his action, which occurred when he lost his temper for a brief moment. D has no previous convictions and a good job. Case 2: DEFENDANT: Jane Townsend AGE: 25 OFFENCE: wounding (section 20 of the Offences Against the Person Act 1861) PLEA: guilty FACTS: D and V, Jamie Thompson, were in a relationship. They went out together on 6 th January and during the evening, an argument developed when D accused V of being interested in another woman. The argument continued as they walked through the city centre. D pushed V and slapped him across the face. V s face was cut open by D s ring and he required 4 stitches. D said that it was V s vault and she is not sorry as he got what he deserved. D has two previous convictions for assault in 2002 and 2004 and she received a fine in both cases. Mitigating Factors: Aggravating factors: Mitigating Factors: Aggravating factors: What type of sentence would you give to Joseph Fletcher? Why? What type of sentence would you give to Jane Townsend? Why? 14