Friday, November 20, 2015
How to avoid a prison sentence
Obviously the best outcome of any Court case is victory- a Not Guilty verdict. However, there are always circumstances in which a defendant will wish to know what sentence they may receive either if they are convicted or if they choose to plead Guilty. This article explores the sentencing regime and the ways in which the risk of immediate custody can be reduced therefore answering the question of ‘How can I avoid a custodial sentence?’.
The sentencing test
When sentencing a defendant, whether after a guilty verdict following a contested trial or a guilty plea, the Judge or Magistrate is aiming to impose a sentence commensurate with the seriousness of the offence.
Magistrates’ Courts have a maximum sentencing power of 6 months (per offence up to 12 months) and following LASPO 2012 have unlimited fining powers. The Crown Court can impose a maximum sentence of life imprisonment. Should an offence fall to be sentenced in the Magistrates’ Court that will require a sentence outside of their powers it can be committed to the Crown Court.
Guilty plea discount
A discount is awarded for entering a guilty plea. The size of the discount is dependent upon the stage at which the plea is entered, the sooner the plea the greater the discount. If a plea is entered at the earliest possible opportunity a one third discount is applied, if it is entered after a trial date is set there is a reduction of one quarter, if at the door of the court on trial day the discount is one tenth. Arguments can be made about when the earliest possible opportunity was and in certain circumstances the one third discount can be preserved until a later date. For example, when the possibility of a guilty plea is canvassed with a Prosecution advocate who cannot contact the relevant CPS lawyer with authority to agree its acceptability for the crown, the discount clock stops running. In some circumstances a discount for a guilty plea can move a sentence within the types of sentence that can be handed down e.g. from a custodial sentence to a community sentence.
The Sentencing Council provides sentencing guidelines which Judges and Magistrates are under an obligation to follow “unless the court is satisfied that it would be contrary to the interests of justice to do so.”
The guidelines split each offence into categories that relate to the varying ways in which the offence can be committed and their respective levels of seriousness. Each category then has its own starting point and range.
A particular act is placed in the appropriate category within the offence by accessing the factors provided in the guidelines suggesting higher or lower culpability and higher or lower harm.
From the starting point of the category the appropriate sentence is moved up or down within the range by aggravating and mitigating factors.
Skilful deployment of the facts of your case can move the potential sentence within the sentencing guidelines and can ensure a lighter sentence than if the case had been accepted on the ‘full facts’ as put forward by the prosecution.
Submission of a ‘Basis of Plea’
In some cases a ‘basis of plea’ document can be put forward on your behalf which can limit the extent of liability that is being pleaded guilty to. This can dramatically reduce the potential sentence as well as moving the sentence within guidelines. This option is not available when a defendant is convicted following a trial- only after a guilty plea.
During a sentencing the advocate for the defence will have the opportunity to mitigate on behalf of the defendant. Mitigation will involve argument that the offence should be in a particular category and be at a certain position within the range of sentences for that category, all with a view to securing the least serious sentence possible and potentially avoiding custody.
Mitigation is made up of two aspects, mitigation on the facts of the offence and personal mitigation relating to the offender. Examples of mitigation on the facts would be highlighting that in a common assault case there was only one blow or in a fraud matter that the activity was originally legitimate. Examples of personal mitigation would be that the defendant is of good or exemplary character.
Effective preparation of mitigation is essential; the collection of evidence and character material to support mitigation can often prevent a sentence of immediate imprisonment.
Alternatives to immediate custody
There is a wide range of alternative sentences to immediate custody which may be available depending upon the relevant guideline, they include the following:
Suspended sentences can be imposed when it is considered that the offence has crossed the custody threshold but in the circumstances the defendant should not serve an immediate custodial sentence. The court can suspend a term of imprisonment of up to 2 years for a maximum period of 2 years. In that time the defendant will have to comply with any requirements of the order such as an unpaid work requirement and avoid committing a further offence in order to circumvent the risk of having to serve some or all of the original sentence plus any new one imposed for the further offending.
Community orders require the defendant to comply with a potentially wide range of requirements as set out at s.177 of the Criminal Justice Act 2003:
(a) an unpaid work requirement (as defined by section 199),
(b) an activity requirement (as defined by section 201),
(c) a programme requirement (as defined by section 202),
(d) a prohibited activity requirement (as defined by section 203),
(e) a curfew requirement (as defined by section 204),
(f) an exclusion requirement (as defined by section 205),
(g) a residence requirement (as defined by section 206),
(ga) a foreign travel prohibition order requirement (as defined by section 206A),
(h) a mental health treatment requirement (as defined by section 207),
(i) a drug rehabilitation requirement (as defined by section 209),
(j) an alcohol treatment requirement (as defined by section 212),
[(ja) an alcohol abstinence and monitoring requirement (as defined by section 212A),]
(k) a supervision requirement (as defined by section 213), and
(l) in a case where the offender is aged under 25, an attendance centre requirement (as defined
by section 214)[; and
(m) an electronic monitoring requirement (as defined by section215)]. “
All community orders must have a specified end date which does not exceed three years. Some of the requirements have specific rules relating to their implementation such as that an unpaid work requirement cannot be for less than 40 hours or more than 300 hours.
Fines can be imposed for a wide range offences although they tend to be utilised for less serious offending. Much like any other form of sentencing, the amount of the fine is determined by the seriousness of the offending however there is an additional consideration when imposing a fine, that being the defendant’s ability to pay. It can often be agreed with the court that the fine along with any compensation, costs, or court charges can be paid in instalments.
It is possible that an offence can be dealt with by way of a discharge. There are two types, absolute and conditional. An absolute discharge, although still a conviction, amounts to no punishment being imposed for the offending. A conditional discharge is the same subject to the requirement that the defendant must not reoffend within a specified period up to three years. If a defendant does reoffend within the period they will be sentenced for both the original offence and the new one.
The risk of a custodial sentence being imposed can be allayed all together in some situations by strong and tactically astute negotiation by the advocate for the defence. It can sometimes be the case that not only is custody avoided but so to is a conviction. For example in a harassment case, even when discussions with the CPS have been unsuccessful, progress can be made by negotiating with the prosecuting advocate on the day of trial in order to dispose of the case by means of a non conviction restraining order.
There are a number of alternatives to immediate custodial sentences available following conviction. The process of sentencing can be complex, involving the application of guidelines and specific rules relating to the availability and operation of the various forms of sentence. If you find yourself facing a criminal allegation and are concerned about the possibility of custody you should seek legal advice and quality representation as soon as possible. Quentin Hunt is a specialist criminal and regulatory barrister practicing from one of the country’s leading chambers, he has vast experience of mitigating and negotiating in the most serious cases. Contact Quentin for expert advice and a no obligation discussion about your case.