A Practical Approach to Sentencing

361 Pages·2014·3.996 MB·English

by  Martin Wasik

A PRACTICAL APPROACH TO
SENTENCING

A PRACTICAL APPROACH TO
SENTENCING
Martin Wasik
CBE
Barrister, Recorder on the Midland Circuit
Professor of Criminal Justice, Keele University
FIFTH EDITION
Great Clarendon Street, Oxford, OX2 6DP,
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First Edition published in 1985
Second Edition published in 1993
Third Edition published in 1998
Fourth Edition published in 2001
Fifth Edition published in 2014
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PREFACE
There is never an ideal time to produce a new edition of a book on sentencing. This area of
law is notorious for its technical complexity, and for the rapidity of change. Much of this
change is driven by legislation. Ten years after the major changes wrought by the Criminal
Justice Act 2003, the greater part of that legislative scheme has now been dismantled.
Innovative ideas for custodial sentences of less than twelve months (so called ‘custody
plus’) were never brought into force, nor were magistrates’ powers to imprison for up to
twelve months, and intermittent custody flickered briefly as a topic and then went out.
Suspended sentences and community sentences have been heavily amended. Section 240
of the Act, which required judges to adjust their sentences to take into account days spent
by the defendant on remand, turned out to be much more trouble than it was worth, and
was repealed by the Legal Aid, Sentencing and Punishment of Offenders Act in 2012. The
2003 Act scheme for dangerous offenders misfired so badly and caused such injustice that
it required radical surgery in 2008 and was abolished in 2012. There has been a steady in-
crease in the range and complexity of ancillary orders which the courts may impose on sen-
tence. The relevant chapter in the book has, in consequence, almost doubled in length since
the last edition. New and unnecessary complexities have been introduced into the senten-
cing process as traps for the unwary. These include more prescribed minimum sentences, a
requirement that at least one community order requirement is punitive in nature, and the
need to add at the end of every sentencing delivery an instruction to the offender to pay up
the required statutory surcharge. Some old traps remain in place. Despite many apparent
indications to the contrary in later legislation, the sentence of imprisonment still starts at
age twenty-one (and not age eighteen) because section 61 of the Criminal Justice and Court
Services Act 2000 remains on the books but not in force.
One consistent and very positive achievement has been the continued development of sen-
tencing guidelines. Most of the major areas of sentencing are now addressed by guidelines.
They have been produced since 2009 by the Sentencing Council for England and Wales, in
a new format and style but essentially building on what went before. Much of the judicial
scepticism with respect to the sentencing guidelines project has now dissipated, and many
judges (especially those who sit on a part-time basis, and the more recently appointed) ap-
preciate the help that guidelines give, while recognizing their inherent flexibility. Guidelines
are now central to practice in the criminal courts, and to Judicial College training. The
prevalence of sentencing guidelines creates a technical difficulty for a book of this sort. The
published guidelines now run to hundreds of pages of text, and it is not practical to include
that material within its covers. Fortunately, the sentencing guidelines are very readily ac-
cessible online, at <http://sentencingcouncil.judiciary.gov.uk/> and in supplements to the
major practitioner works. While, of course, much summary and analysis of the guidelines
can be found in the pages of this book, practitioners should always refer to the full text of
any particular guideline before relying on the guideline in court.
The volume of appellate case law continues unabated. Among the most important recent
sentencing decisions discussed in this edition are Caley [2013] 2 Cr App R (S) 47 on dis-
count for a guilty plea, Blackshaw [2012] 1 WLR 1126 on sentencing offences committed
during widespread public disorder, AG’s Ref (No 60 of 2009)(Appleby) [2010] 2 Cr App
R (S) 286 on sentencing manslaughter, Perkins [2013] EWCA Crim 323 on victim personal
statements, Smith [2012] 1 All ER 451 on sexual offences prevention orders, Boakye [2013]
vi Preface
1 Cr App R (S) 6, Healey [2013] 1 Cr App R(S) 176, and AG’s Refs (Nos 15, 16, and 17 of
2012)(Lewis) [2013] 1 Cr App R (S) 289 on the proper approach to sentencing guidelines,
and Saunders [2013] EWCA Crim 1027 and Burinskas [2014] EWCA Crim 334 on life
sentences after LASPOA.
This fifth edition (the title of which now clearly reflects its Practical Approach) is the nat-
ural successor to Emmins on Sentencing. It will be clear from what has been said in this
Preface that developments since the last edition have required, for most chapters, a com-
pletely fresh start. I have tried to describe and explain the law on sentencing as fully, clearly,
and helpfully as possible. I have retained the gender-specific ‘he’ when referring to defend-
ants and offenders, since the great majority of them are male. As always, I am grateful to
the publishers for their efficiency, encouragement, and patience.
CONTENTS SUMMARY
Preface v
Table of Cases xii
Table of Statutes xxi
Table of Statutory Instruments, Criminal Practice Directions and
Criminal Procedure Rules xxxiii
List of Abbreviations xxxiv
1 The Sentencing Process 1
2 General Provisions in Sentencing 46
3 Custodial Sentences: Adult Offenders 80
4 Custodial Sentences: Offenders Under 18 109
5 Custodial Sentences: Mandatory and Prescribed Sentences 122
6 Community Sentences 134
7 Referral Orders and Reparation Orders 161
8 Deferment, Binding Over, and Discharge 166
9 Compensation, Restitution, and Surcharge 177
10 Orders against Parents 189
11 Fines 195
12 Orders of Disqualification and Exclusion 209
13 Mentally Disordered Offenders 241
14 Sentencing for a Range of Offences 251
15 Sentencing Appeals and the Statutory Consequences of Conviction 282
Index 303
DETAILED CONTENTS
Preface v
Table of Cases xii
Table of Statutes xxi
Table of Statutory Instruments, Criminal Practice Directions and
Criminal Procedure Rules xxxiii
List of Abbreviations xxxiv
1 THE SENTENCING PROCESS 1
A AN OUTLINE OF PROCEDURE RELEVANT TO SENTENCING 1.01
B ADVANCE INDICATION OF SENTENCE (GOODYEAR) 1.33
C ADJOURNMENT BEFORE SENTENCE 1.39
D SETTLING THE FACTUAL BASIS FOR SENTENCE (NEWTON) 1.46
E OFFENCES TAKEN INTO CONSIDERATION 1.60
F ANTECEDENTS AND CRIMINAL RECORD 1.63
G REPORTS 1.73
H VICTIM PERSONAL STATEMENTS 1.84
I PLEA IN MITIGATION 1.86
J PASSING SENTENCE AND GIVING REASONS 1.92
K COMMENCEMENT OF SENTENCE 1.97
L VARIATION OF SENTENCE 1.99
M REWARDS 1.104
2 GENERAL PROVISIONS IN SENTENCING 46
A PURPOSES OF SENTENCING 2.01
B SENTENCING GUIDELINES 2.05
C OFFENCE SERIOUSNESS 2.18
D PERSONAL MITIGATION 2.51
E REDUCTION IN SENTENCE FOR A GUILTY PLEA 2.54
F REDUCTION IN SENTENCE FOR ASSISTING THE AUTHORITIES 2.66
3 CUSTODIAL SENTENCES: ADULT OFFENDERS 80
A AVAILABLE CUSTODIAL SENTENCES 3.01
B GENERAL REQUIREMENTS 3.04
C TIME SPENT ON REMAND OR UNDER QUALIFYING CURFEW 3.15
Detailed Contents ix
D IMPRISONMENT AND DETENTION IN A YOUNG OFFENDER INSTITUTION 3.24
E SUSPENDED SENTENCE OF IMPRISONMENT OR DETENTION IN A YOUNG
OFFENDER INSTITUTION 3.38
F EXTENDED SENTENCES OF IMPRISONMENT AND DETENTION IN A YOUNG
OFFENDER INSTITUTION 3.50
G LIFE SENTENCE FOR THE SECOND LISTED OFFENCE 3.57
H DISCRETIONARY LIFE SENTENCE 3.60
I SETTING MINIMUM TERM UNDER PCC(S)A 2000, SECTION 82A 3.67
4 CUSTODIAL SENTENCES: OFFENDERS UNDER 18 109
A AVAILABLE CUSTODIAL SENTENCES 4.01
B DETENTION AND TRAINING ORDER 4.06
C DETENTION UNDER THE PCC(S)A 2000, SECTION 91 4.24
D DETENTION FOR LIFE 4.37
E EXTENDED SENTENCE OF DETENTION 4.39
5 CUSTODIAL SENTENCES: MANDATORY AND PRESCRIBED SENTENCES 122
A MANDATORY LIFE IMPRISONMENT FOR MURDER 5.01
B CUSTODY FOR LIFE 5.07
C DETENTION DURING HER MAJESTY’S PLEASURE 5.09
D PRESCRIBED MINIMUM SENTENCE FOR THIRD CLASS A DRUG TRAFFICKING OFFENCE 5.11
E PRESCRIBED MINIMUM SENTENCE FOR THIRD DOMESTIC BURGLARY 5.14
F PRESCRIBED MINIMUM SENTENCE FOR FIREARMS OFFENCES 5.20
G PRESCRIBED MINIMUM SENTENCES FOR CERTAIN OFFENSIVE WEAPONS OFFENCES 5.28
6 COMMUNITY SENTENCES 134
A PASSING A COMMUNITY SENTENCE 6.02
B TIME SPENT ON REMAND BEFORE COMMUNITY SENTENCE PASSED 6.06
C REPORTS 6.08
D COMMUNITY ORDER REQUIREMENTS 6.10
E BREACH OF COMMUNITY ORDER REQUIREMENT 6.33
F REVOCATION OF COMMUNITY ORDER FOLLOWING FURTHER OFFENCE 6.41
G REVOCATION AND AMENDMENT OF COMMUNITY ORDER 6.43
H YOUTH REHABILITATION ORDER 6.45
I YOUTH REHABILITATION ORDER REQUIREMENTS 6.51
J YOUTH REHABILITATION ORDER WITH INTENSIVE SUPERVISION AND SURVEILLANCE 6.71