HOW SENTENCING WORKS
WHAT WILL HAPPEN AT MY SENTENCING HEARING?
MORE ABOUT SENTENCING …
<< Back to page 1 of Your Guide to Sentencing in the Crown Court and Magistrates’ Court (which covers:
Avoiding misconceptions about sentencing in the criminal courts;
The purposes of sentencing;
The factors taken into account when sentencing.
WHAT HAPPENS AT THE SENTENCING HEARING AT THE CROWN COURT OR MAGISTRATE’S COURT?
Where a defendant has been found guilty following a trial or has pleaded guilty to the offence, the defendant will be sentenced. Sentencing procedure in both the Magistrates’ Court and the Crown Court is very similar.
If a pre-sentence report has not already been prepared and the judge/magistrates are considering imposing a custodial or a community sentence, there will be an adjournment of the case to allow such a report to be prepared unless the judge/magistrates consider it unnecessary. You can read more about pre-sentence reports on this page.
If the defendant has pleaded guilty, sentence starts by the prosecution opening the case to the Magistrates or District Judge (in the Magistrates’ Court) or to the Judge (in the Crown Court) by summarising the case against the defendant.
Occasionally, even where the defendant accepts that he is guilty of the offence, he does not accept the prosecution version of events. In these cases there will have to be an agreed basis of plea or a hearing to determine precisely what parts of the prosecution case he accepts (for more see the section on Basis of Plea on the Pleading Guilty page).
If the defendant has been found guilty following a trial the prosecution will not normally have to open the case because the Magistrates/Judge will already have heard the details. In the Crown Court a jury takes no part in the sentencing process.
The prosecution do not request specific sentences for a defendant. This means that it is no part of the job of the prosecution to tell the judge what sentence to impose, e.g that it should be a custodial sentence and, if so, for how long. However, it is part of the prosecution’s role to assist the court with any matters of law and this includes assistance with relevant sentencing guidelines, albeit the judge and not the prosecution make the final decision on their implementation.
VICTIM PERSONAL STATEMENTS, COMMUNITY IMPACT STATEMENTS & IMPACT STATEMENTS FOR BUSINESS
Opening the case can include reference to a Victim Personal Statement. Victims of crime can provide a statement setting out the effects on them (in homicide or other appropriate cases such a statement will be made by a close family member). This is sometimes read out in court by the victim/family member; more often parts of it are referred to in court by the prosecutor in the case opening.
In relevant cases there may be a Community Impact Statement prepared by the police to inform the court of the effects of particular crime trends in the local area and how this affects the local community. Similarly, where a business is the victim of crime a representative can make an Impact Statement for Business setting out the impact of the offence on the business.
PREVIOUS CONVICTIONS & ANCILLARY MATTERS
The prosecution will inform the court of any relevant previous convictions or cautions the defendant has. If the defendant wishes to have other offences taken into consideration (TICs) these will be brought to the attention of the court and the defendant will be asked if he would like them taken into consideration when sentence is passed. Finally, the prosecution will deal with ancillary matters such as applications for prosecution costs, compensation for the victim, confiscation and other orders in appropriate cases.
DEFENCE PLEA IN MITIGATION
When the prosecutor has finished, the defence representative (or the defendant if he is not legally represented) stands up and makes a plea in mitigation, i.e. advances those matters which make the offence less serious, including any personal mitigating circumstances of the defendant.
Mitigating circumstances relating to the offence might include situations where the defendant played a minor role in the offence, or where the loss or injury to the victim is relatively minor, where the offence was committed on the spur-of-the-moment, or where the consequences of what occurred (such as injury) were unintended, as well as any other conduct or circumstances which demonstrate the offence to be a less serious one of its kind.
Mitigating circumstances relating to the offender might include the defendant's age, few or no previous convictions or cautions, responsibilities (such as being the sole or primary carer for children, disabled or elderly relatives) and addiction or debt problems where the defendant is taking active steps to deal with these problems.
The defence can also make submissions regarding the sentencing guidelines. Sometimes a case might fall on the boundary between offence categories in the guideline and it will be the job of the defence advocate to persuade the court why the case falls within the lower category.
In simple terms, the plea in mitigation is designed to highlight those features of the case and any relevant circumstances of the defendant which might permit the court to take the most lenient course available, e.g. to pass a community order rather than a custodial sentence or, where a custodial sentence is inevitable, to suspend it. It is one of the most important roles of a criminal defence lawyer. It is vital that a defendant facing a potential custodial sentence has legal representation.
After the plea in mitigation the Magistrates/Judge will either retire to consider sentence or proceed directly to sentence. Judges in the Crown Court rarely retire to consider sentence. The Judge/Magistrates will explain why they have decided on a particular sentence and pronounce what that sentence is. In complex cases this can take some time.
If it is an immediate custodial sentence the defendant will be taken from the dock into the court cells as soon as the sentence is passed. If the sentence is non-custodial (or a suspended sentence) the defendant will be allowed to leave the dock, unless he came directly from custody in which case a defendant will be returned to the cells for a short time in order that administrative matters can be dealt with to enable their release.
If the Magistrates/District Judge (in the Magistrates’ Court) or the Judge (in the Crown Court) are considering imposing a custodial sentence or a community order, a pre-sentence report (sometimes referred to as a ‘Probation Report’) must be obtained unless the Judge/Magistrates consider it unnecessary to do so.
Pre-sentence reports are written by probation officers from the National Probation Service. The defendant will often meet with a probation officer before sentence and they will discuss the offence and the defendant’s attitude towards it. Sometimes 'stand down' or 'on the day' pre-sentence reports are ordered. This means the court orders a report to be prepared by the probation service on the same day as the defendant pleads guilty, allowing the sentence to take place on that day also; this procedure is often used in less complex cases where there has not been sufficient time or opportunity to prepare a report in advance.
The probation officer will consider how much of a risk to the public the defendant is and to what extent he presents a risk of reoffending. The probation officer will consider what types of community sentence (if any) the defendant is suitable for. For example, a defendant with a drug addiction might be suitable for a community order with a drug rehabilitation requirement, or a defendant with a mental health problem may be suitable for a community order with a mental health treatment requirement (which could require treatment for a period of up to 3 years). The probation officer will ensure that the defendant is capable of undertaking the particular community order suggested and that any programmes or requirements proposed as part of a community order are available in the locality.
The pre-sentence report is made available to the judge and to the prosecution and defence lawyers. The defendant is, of course, entitled to see it and it will usually be discussed between the defendant and his/her legal representative prior to sentencing taking place. The judge is not bound to follow any recommended sentence in the pre-sentence report, but if the judge reaches the view that a community order is the correct sentence in a particular case, then often the judge will follow the recommendations for any particular additional requirements (such as suggested programmes and treatment requirements).
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