(a) Describe the sentences available for adult offenders [18] (b) Discuss the advantages and disadvantages of custodial sentences [12]

Transcription

1 SENTENCING Theories & Adult Sentencing. By the end of this unit you will be able to (AO1): Explain the theories of sentencing and illustrate them with examples. Understand the different kinds of custodial sentences available for adults Explain the other sentences which an adult offender may receive Understand what is meant by the terms mitigating and aggravating factors. You will also be able to evaluate (AO2): The effectiveness of the theories in reducing crime. The operation and recidivism rates of the various sentences which may be imposed. 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 sentences available for adult offenders [18] (b) Discuss the advantages and disadvantages of custodial 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: You will sit a mock exam in the last week of term (beginning 13 th December 2010) and your knowledge of this and the other ELS topics covered so far this year will be needed for it!

2 SECTION ONE: THEORIES OF SENTENCING. So, what happens next? So far you ve been arrested, charged, detained, bailed and convicted... The role of the court is to use its discretion to sentence you. In doing this, they have to bear in mind the statutes and the powers of the court. MAGISTRATES CUSTODY: FINE: CROWN COURT CUSTODY: FINE: Of course, there are other restrictions on the power of the courts. (We will return to this later) These come from Parliament... MAXIMUM SENTENCES MINIMUM SENTENCES MANDATORY LIFE SENTENCE Sometimes, however, the judge has discretion. This means that he may use his judgement and the facts in the case to hand down the most appropriate sentence. Look at the two cases below. Both defendants are charged with manslaughter. This carries discretion in its sentencing. R v Byrne Facts: D was a sexual psychopath who kidnapped a young girl from the YCMA and mutilated and killed her. Charge: Manslaughter Sentence: Why: R v Reynolds Facts: D was a 19 year old woman who battered her mother to death with a hammer. She was suffering from post natal depression after a concealed birth. Charge: Manslaughter Sentence: Why:

3 WHAT ON EARTH ARE WE TRYING TO DO WHEN WE SENTENCE D? It s not clear! When the court is sentencing D, they have to bear in mind a number of theories and use these in deciding upon the sentence. Precisely which one the judge uses varies depending on their preferences and the current focus of the criminal law. For example, in the Victorian era they simply wanted to punish all the offenders, however in the last twenty years, there has been a move towards focusing on helping D not to commit further offences. s.142 Criminal Justice Act 2003 says that, in sentencing D, the court must have regard to: 1. To reduce the crime rate this is the one that the judges must have the most regard to 2. As punishment for having committed a crime 3. To change the offender s behaviour 4. To deter the offender from re-offending (& deter the public by example) 5. To protect the public 6. To compensate the victim and society Student Task: Look at the six aims above. Put them in order of importance below. Which do you think that the judge should pay the most to, and why?

4 AIM ONE: RETRIBUTION. An eye for an eye... Simple the punishment should fit the crime. The idea is that because D has committed the act they deserve the punishment in proportion to the offence. There is a strong element of revenge here, both by society and the victim. This theory is concerned with the... not the... Task: Look at the following crimes, what punishment would YOU give them to fit the crime? Be as inventive as you like! Theft Murder Rape Burglary Terrorism Treason EXAMPLES OF SENTENCES, which fall under this. Fines Death Penalty Life sentences Chemical castration AIM TWO: DENUNCIATION This is society expressing is disapproval of the crime. It is generally carried out by the media in this country. Think how many times the newspapers print headlines and pictures of those accused of crimes... Punishment is the is the way in which society expresses its denunciation of what D is doing. Denning LJ Denunciation increasingly reflects our moral boundaries. And they seem to get more and more severe! EXAMPLES of sentence which do this... Publishing the name of child offenders Megan s Law Vests for community payback

5 AIM THREE: PROTECTION OF THE PUBLIC/ INCAPACITATION It reflects the idea that the individual has the right to be protected from those who may be a threat to them. Look at the 35 whole life tariff cases. What do they have in common? How can you justify a whole life tariff? One of the issues with this is that we are trying to prevent future crimes and therefore sentencing on the basis of what D might do rather than what they have done. EXAMPLES OF SENTENCES Minimum sentencing Tagging Driving Bans Exclusion or curfew orders Whole life sentences AIM FOUR: DETERRENCE This operates on the fear of future punishment and is aimed at trying to deter D or others from committing crimes and reducing future levels of punishment.after all, scaring people does work... doesn t it? There are two types of deterrence: general and individual. GENERAL By showing how horrible the consequences might be, the hope is that no one else will commit the crime. This relies on publicity and offenders thinking before they act. Examples 1. Knife possession 2. R v Whitton CCTV INDIVIDUAL The aim is to stop D himself from committing future offences. Sometimes this involves a short, sharp shock. Examples 1. Naming child offenders 2. ASBO posters 3. Custodial sentences

6 AIM FIVE: REHABILITATION This penalty aims to reform the behaviour of D and assumes that the problem is with the offender and not with society. By reforming D, the aim is to stop the behaviour which caused the crime in the first place. This is a relatively new development in the law, and is really reflecting changing attitudes to punishment, as well as a wish to produce individualised sentences. This is particularly important for youth offenders. EXAMPLES of this type of sentences... Drug & alcohol treatment orders Reconditioning Custodial education courses Community Orders AIM SIX: REPARATION This penalty aims to compensate the victim or society for the crime, allowing D to make restitution or pay over a sum of money. Student Task: Read the enclosed article. Do you agree with the principle of Mrs A s case? Should she be able to sue Hoare? Why/ Why not? Under s.130 Powers of the Criminal Courts (Sentencing ) Act 2000, the court is under a duty to make a compensation order in addition to any other punishment. If the court chooses not to make the order, they have to say why! EXAMPLES of this type of sentences... Community Payback Victim meetings Confiscation order

7 CONSOLIDATION: Complete the table to demonstrate your understanding. THEORY FOCUS PERSON OR CRIME? ADVANTAGES DISADVANTAGES Retribution Rehabilitation Incapacitation Deterrence Denunciation Reparation

8 Times Online: November 1, 2007 Will law lords make lotto rapist pay up? Should Iorworth Hoare's victim be able to pursue a claim many years after he subjected her to a violent attack just because he has won 7 million? Frances Gibb, Times Legal Editor A woman goes to the House of Lords today to seek compensation from the man who was convicted of her attempted rape and who, on his release, won 7 million on the National Lottery. The case of the so-called lotto rapist raises a question of natural justice; but it also challenges the law as to when people should be able to sue and when such claims should be ruled out of time. Iorworth Hoare was sentenced in 1989 to life imprisonment for the attempted rape of Mrs A, a retired teacher now 77. He had dragged her from a path in a park in Leeds and subjected her to a violent and disgusting attack. She was awarded just 5,000 from the Criminal Injuries Board. But Hoare, when out on day-release from prison in 2004, scooped 7 million on the lottery. He was freed on parole later that year. Now in a test case in the highest court in the land, Mrs A is seeking to pursue a civil claim for damages against Hoare for the assault and battery and psychiatric injury she suffered. Why should her attacker enjoy the benefits of a win on the lottery? Yet it is not, she insists, about money, more about a just result. But as the law stands, Mrs A s claim is time-barred because it was not brought within the six-year limitation period after the attack. She took her case to the High Court and Court of Appeal and both have ruled against her. What her lawyers will argue, however, is that the law is inconsistent: where civil claims are brought generally, including those for damages for personal injury, the limitation period is only three years. But judges have discretion to extend that in circumstances where it would be just to do so. The discretion 8 covers cases of claims over personal injuries but not claims involving deliberate assault, where the period is fixed for six years. Damian Crosse, a partner at DLA Piper, who acts for Mrs A, said: We want to see a change in the law to ensure that Mrs A is fairly compensated for the damage and suffering she has had to endure as a result of being attacked by Mr Hoare. People like her, he says, should be able to gain justice through the civil courts, adding: There is clearly an anomaly in the law that is preventing them from do so. Had the claim been issued within six years of the date of the attack, there is no doubt that she would have been successful in her civil claim against Mr Hoare, he adds. Yet Mrs A was caught in the double bind that she was unable to bring a claim within the six-year period because at that time her attacker had no money. As lawyers say, there is no point pursuing a claim if it is not worth the powder and shot. Mrs A s lawyers will argue that in cases such as hers, of intentional assault, courts should have the same discretion to extend the time-bar. Their view is in line with proposals from the Law Commission, which has said that the current law is inflexible and recommended a uniform three-year limitation period that can be extended when courts think right in individual cases. Mr Crosse argues: It seems ridiculous that a less generous period of limitation can apply to a claim against the perpetrator of intentional sexual abuse, than to a claim against someone for negligently failing to prevent that abuse. We want to see the law changed to allow claims of genuine merit to be

9 pursued through the courts and we are willing to fight as far as we have in trying to achieve that aim. The law firm is acting for Mrs A on a no win, no fee basis and intends to donate any success fee recovered from the case to a local charity that supports victims of serious sexual abuse. The case also highlights the inadequacy of awards from the Criminal Injuries Compensation Scheme. But the scheme has suffered over the years from cuts to its budget. And even the most generous scheme funded by taxpayers in the world would not detract from the apparent disparity in what Mrs A has received and the bounty enjoyed by her attacker, now living in a six-bedroom house on the outskirts of Newcastle. Should people, though, be able to pursue claims many years after an event just because their target has come into money? In general lawyers say no : or people would have the potential of claims hovering over them for life. But simply to grant discretion to judges to extend the time-bar in certain cases would not open the floodgate to claims, Mr Crosse argues. The burden of persuading a judge would still fall to the claimant; that should act as a check against potential abuse. He adds: The law on limitation has to strike a reasonable balance between the interests of claimants and defendants. As it stands, it does not get that balance right in cases of intentional sexual assault. The law lords may agree that the law is unjust but that it is for Parliament, not them, to change it. In cases like this, though one of many proposed reforms from the Law Commission that are stacking up and with a full Parliamentary timetable, the law lords have a clear chance to create new and fairer law. 9

10 Shawshank Redemption & Sentencing Theories 1. Untangle the following theories and match them with their definition: tbiitneourr = iiiaaehrbttonl =. prrtanaoie =.. nuniiteondca =. Pttrooecin fo het bpulci. rrdteeeenc =.. The reforming of offenders in order to make it less likely that they commit offences in the future Open condemnation of the defendant and their actions Prevention of the commission of future crimes. Can be both general and individual The offender is punished in order to show that their actions are unacceptable in the eyes of society. The offender repairs the damage done by their crime to society and/or the victim through monetary or other means. To protect society from other crimes committed. 2. Which aims of sentencing do you think were achieved in relation to the following characters in the Shawshank Redemption? AIMS REASONS Andy Brooks Red Tommy 10

11 ADULT SENTENCING Student Task You are going to watch two cases, and apply your own sentence to the case. You will then hear what they actually got. This should give you an understanding of the whole adult sentencing process. Case One: Andrew Roberts Charge: Plea: Facts: Evidence: Mitigating factors Aggravating factors Will the fact that the robbery is at night affect your sentence? Yes Not Sure No The fact that Andrew pleaded guilty saved his victim from re-living her experience in court. Will this affect your sentence? Sentencing guidance Yes Not Sure No Sentencing options a. 2 years imprisonment b. 3 years imprisonment c. 4 years imprisonment d. 5 years imprisonment What did the Judge think? Why? 11

12 Case One: Robert Horton Charge: Plea: Facts: Evidence: Mitigating factors Is his previous conviction relevant to his sentencing? Yes Not Sure No Aggravating factors Was the fact the Robert was drunk significant to his sentencing? Yes Not Sure No Would the fact that he may lose his job influence your sentencing? Yes Not Sure No Sentencing guidelines Sentencing options a. 500 fine b. Community Sentence. 100 hours unpaid work and 7pm to 7am curfew for two months monitored via tagging c. Community Sentence. 200 hours unpaid work and 7pm to 7am curfew for 4 months and weekly supervision by a probation officer for 2 years. d. 3 months prison sentence What did the Magistrates think? Why? 12

13 PROCESS OF SENTENCING Well, the. or... have to decide on your sentence. This is punishment which is most appropriate having considered both the personal circumstances of D and the circumstances of the crime, as well as the powers of the courts and any relevant statutory limitations. Before we take a look at the different types of sentence available, we need to have a look at what is taken into consideration. Amongst others that includes: Previous convictions, Pre-sentence reports Medical reports D s finances Mitigating and Aggravating Factors These are things which are taken into account in deciding the exact sentence D will receive. Using the boxes below, how many can you remember? These are the things which the judge may take into account: Means: MITIGATING FACTORS Means: AGGRAVATING FACTORS Examples: Examples: 13

14 MITIGATING AND AGGRAVATING FACTORS: For each of the following situations, identify the mitigating and aggravating factors, and then award each D a sentence: PROBLEM MITIGATING AND AGGRAVATING FACTORS SENTENCE? Elvis is badly beaten when a burglar breaks into his house. The burglar takes his life savings ( 300) and his TV and DVD (worth 180 for which he is not insured), two windows are also broken. Mavis, who is a single mother and a drug dealer, steals Arthur s wallet. Arthur is a 24 year old banker. Wallace, a 6 4 ex-boxer aged 30 snatches Greta s handbag, knocking her to the ground. Greta is 84 and suffers a broken hip. Strawberry, an 8 year old girl, takes a mars bar from Tesco. It is her first offences. Inez, who is a single mother, steals a jar of baby food worth 3.00 from Shopright. Girt, who is a company director, embezzles 40,000 from her company s pension funds. Norman steals 40 rolls of tin foil from Supersaver to prevent aliens attacking his coal shed. Melvin, who is 19, steals a TV from the back of an unattended van. It is worth 50. Arnold jumps a red traffic light whilst taking his pregnant wife to hospital. 14

15 I PLEAD GUILTY! What happens then? Well, simple really: your sentence may be reduced. It generally is cut by a third, if you plead guilty as early as possible... But the Sentencing Guidelines Council (who were put in charge of sentencing under the Criminal Justice Act 2003.) issued new guidelines in July 2007: READ THE ENCLOSED ARTICLE: HOW HAVE THE RULES CHANGED? DO YOU AGREE WITH THEM? WHY THE CHANGE? Well there was a lot of public outcry following the sentencing of Alan Webster (picture). Webster, along with his girlfriend, pled guilty to the rape of a 12 week old baby. He pled guilty after being confronted with the images of the abuse by the police. As a result of his plea, the judge reduced his sentence by 1/3 to 12 years, and therefore, he would be eligible to apply for parole in 6 years. How would the change in rules have altered his sentence? The amount that D can reduce his sentence by also depends on the point at which he pleads guilty. If this occurs after the trial has actually started, it is reduced by. Whereas if it is before the trial begins and after the trial is set it goes up to. Why do we reduce sentencing for those who plead guilty? Should we reduce the sentencing for guilty pleas? Why/ why not? 15

16 July 20, 2007 Smaller sentence reductions for guilty pleas Times Online and PA Criminals who plead guilty in the face of overwhelming evidence - such as being caught in the act will get less time off their sentence, it was announced today. The current rules, which allow a discount of up to a third for pleading guilty, will be cut to a fifth from Monday, the Sentencing Guidelines Council (SGC) said. A review was launched after former home secretary John Reid and former Attorney- General Lord Goldsmith expressed concern that the one third rule was too lenient. New guidelines from the SGC say that in most cases a maximum one third should be cut from sentences handed to criminals who admit guilt at a very early stage of proceedings. But in cases where the prosecution case is overwhelming, the document said a recommended reduction of 20 per cent is likely to be appropriate where the guilty plea was indicated at the first available opportunity. SGC member and vice-president of the Court of Appeal Sir David Latham said: Every defendant who is guilty should be encouraged to indicate that guilt at the first reasonable opportunity. That is the purpose of giving credit through reduced sentences. The judge directed that Webster should serve a minimum term of half this figure - namely six years - before his case would be referred to the Parole Board to be considered for early release. If today s proposals had been in force at the time, Webster s 18-year starting point would have been cut by a fifth to 14 years and five months. Today s document said that in some cases a court may regard a criminal s earliest opportunity for admitting guilt as being before charges were brought, possibly even during police interview. The new rules replace discounts set out by the SGC just two years ago. It was the first time that SGC guidelines had been revisited, following public concern about their impact. Separate arrangements exist for discounts when admitting murder - one sixth or five years off the minimum term to be served in a life sentence, whichever is the less - and these remain unchanged in today s proposals. Shadow justice secretary Nick Herbert said: We welcome the reduction in discount but it is imperative that every judgment is dealt with on a case by case basis using common sense. Mr Reid expressed dismay that paedophile babysitter Alan Webster won a third off his sentence after police confronted him with sickening photographs of his abuse, effectively giving him no choice but to enter a guilty plea. There should be no automatic discount for those who are caught red-handed and face overwhelming evidence just because they plead guilty. Webster, 41, from Hatfield, Hertfordshire, raped a 12- week-old baby and took photographs of the abuse with his girlfriend, Tanya French, 20. Judge Findlay Baker said at the conclusion of Webster s trial in January last year that he would have imposed a sentence of 18 years imprisonment. But he noted that SGC guidelines effectively require me to deduct one third from the 18 years. The sentence was therefore reduced to 12 years. Extension: Using your own powers of research, discover the facts and sentence awarded to one Craig Sweeney. Why did his sentence prove so controversial? What was the sentence handed down by the court? Why? 16

17 CUSTODIAL SENTENCING 17

18 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. 18

19 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 19

20 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. Breaking news: The current justice minister, Ken Clarke, will publish proposals in January covering sentences, and campaigned on the proposal that all sentences less than 2 years (known as short-term sentences) would be abandoned, partly because of how full the prisons are, and partly because they are not very successful. It is unclear whether this will be part of the final proposal. We can but wait... 20

21 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. 21 The courts placed a lifetime ban on reporting anything about their whereabouts - a highly unusual order reserved for the most serious cases. 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.

22 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. 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 22

23 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 Unpaid work 40 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. 23

24 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? 24

25 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. 25

26 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 26

27 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) 27

28 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." 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? He told Brown: "You have a number of previous convictions for offences 28

29 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? 29