Sentencing and ethics
- Created by: KG1999!
- Created on: 08-10-23 14:30
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- Sentencing and ethics
- Sentencing
- 1. Punish offenders 2. Reduction of crime 3. Reform and rehabilitate 4. Protect public 5. Reparation by offenders
- Principles of sentencing
- Seriousness: how culpable is offender, intended to harm, reckless whether harm could be caused, D knew about risk but didnt intent to cause harm, D was negligent
- Aggravating and mitigating factors - Does D have previous convictions, has D committed offences on bail, racial or religious agro, sex based hostility
- Totality principle - associated offences i.e. D committed several types of similar offences
- Types of sentence
- Custodial = D deprived of physical liberty
- Community sentence = D required to take part in activities within the community
- Fine
- Discharge = not to sentence offender. Could be conditions i.e. dont commut something else for a while.
- Ancillary orders
- Compensation = for injury or loss suffered by victim
- Costs = prosecution costs or D costs
- Victim surcharge - flat rate payable to victim - offence committed on or after 8 April 2016
- Forfeiture orders - may order forfeiture of any property that was in Ds possession when apprehended if use for committing offence, intended to be used to do so
- Confiscation and restitution orders - D appearing in CC may be made subject of confiscation order in respect of proceeds of criminal activity
- Criminal behaviour orders (formally ASBOs).
- Binding over order - requires person to keep the peace by refraining from specific activities
- Sex offences - details put on sex offenders reg
- Serious crime prevention orders - on property or business, working arrangements, means an individual communicates with others, premises they have access to, their travel
- Plea in mitigation
- Preparation
- Identify max and likely sentence: High, medium or lesser culpability. Level of harm - any factors indicate significant additional harm. Offence category. Cross reference category and capability
- Study pre-sentence report. Prepared by probation service with view to assistance court in determining most suitable way to deal with offender. CONTAINS: details of offence and Ds attitude towards, info about personal history and family, officers assessment of risk of harm of re-offending
- Determine the objective - what sentence should we be aiming for?
- Structure
- 1. Objective = court may be minded to impose particular sentence but hope to persuade the court that a lesser sentence will be more suitable
- 2. The offence = minimise impact of any aggravating factors and emphasis mitigation factors
- Minimise agro - planned or premed, group/gang, target vulnerable groups, under influence of drink/drugs, weapon, deliberate damage/violence, abuse position of trust, those in public sector, high value
- Highlight mitigating - impulsive, greater degree of provocation, minor role, motive of fear
- Minimise agro - planned or premed, group/gang, target vulnerable groups, under influence of drink/drugs, weapon, deliberate damage/violence, abuse position of trust, those in public sector, high value
- 3. The offender (sob story). Minimise ag = failure to respond to previous sentences. Highlight mitigation = mental illness, young or old, remorseful. Highlight family = reg home and job, children, lose job. Highlight early guilty plea = co-op with police,
- Distinguish previous convicts (differ) = explain how, how long ago, absence of convictions too, good character. Other consequences of conviction = lose position. Risk of re-offending = pre-sentence report.
- 4. Suggest sentence = lower than likely, realistic, if same as pre-sentence report they should highlight this. Suggest ancillary orders. Explain purpose i.e. punishment, rehab, deterrence
- Preparation
- Conduct issues
- Client suggests influence C to make them drop case - in best interest (7) BUT have to act with integrity (5) and uphold rule of law (1). Should not tamper with evidence. Client may pervert the course of justice.
- Client informs guilty after acquitted - no danger of sols misleading court. Client confidentiality lasts beyond end of retainer.
- If informed before acquittal - act with integrity (5) and uphold rule of law (1). Advise them to plead guilty. Or must cease to act.
- Sentencing
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