By Anthony Edwards, TV Edwards, London


Sentencing update

Adult sentencing

In Seed v Stark [2007] Crim LR 501, the court held as follows:

l Custody should not be imposed unless the threshold has been passed. A heavy fine could often be an adequate and appropriate penalty.

l Even if the custody threshold had been passed, personal mitigation and/or a guilty plea may justify a lesser penalty.

l A lack of previous conviction was an important personal mitigation.

l If custody were necessary, it should be for the shortest term, and the length of the sentence should reflect the additional penal effect of overcrowded

and unsatisfactory prison accommodation.

l Care should be taken before passing a first prison sentence because of the risk of contamination.



The new guideline on sentencing for causing death by dangerous driving and careless driving while intoxicated is R v Richardson [2007] Crim LR 315. In summary, this suggest the following penalties:

l No aggravating circumstances - 12 months' to two years' imprisonment (previously 18 months).

l Intermediate culpability - two to four-and-a-half years' imprisonment (previously three years).

l Higher culpability - four-and-a-half to seven years' imprisonment (previous starting point of five years).

l Most serious culpability - seven to fourteen years' imprisonment (previous starting point of six years).



A suspended sentence may not be more than 12 months in length and must always be accompanied by at least one requirement ( R v Lee-Wolfenden [2007] Crim LR 393). There is concern that too many suspended sentences are being imposed when there may be strong arguments that the custody threshold has not, in all the circumstances, been passed; or that a custodial sentence was not inevitable (See The Sentence, May 2007, page 3).



Youth court sentencing

In Pye v Leeds Youth Court (2006), The Independent, 6 October, the court confirmed that the youth court could not impose a detention and training order for criminal damage valued at less than £5,000 on a youth under the age of 18 at the date of conviction.



In R v Eagles [2007] Crim LR 94, the court noted that in making a detention and training order on a defendant under 18, the time spent on remand does not count towards the sentence, and the court is required to give credit for that time as best it can in fixing the length of the detention and training order.



However, the court emphasised that the time allowed must be double that spent on remand. Where there has been a three-week remand, the equivalent of a six-week sentence, it may then be difficult for the court to justify a four-month detention and training order, and it may have to reconsider whether the case actually continues to cross the custody threshold.



In R v R (2005) 150 SJ 1607, applying the decision in R v Ghafoor [2003] 1 Cr App R (S) 428, the court held that, while a detention and training order may be passed on an offender who is 15 at the date of conviction, the starting point was the sentences that were available for the age he was at the date that the offence was actually committed. This is significant if the defendant is under 15 and not a persistent young offender who could not then normally be detained. The same principle is applied at the 17 to18-year-old division by R v Britton [2007] 1 Cr App R (S) 745.



Developments

On 30 April 2007, a new sentencing guideline came into effect in relation to sexual offences. This is the most complex guideline so far published and covers offences under the Sexual Offences Act 2003 and related matters. A court shall have regard to these guidelines in sentencing any defendant after that date. Tables are provided in relation to all relevant offences, but the full introductory notes add significant material to that set out opposite each table.



On 28 May, amendments were made to override the decision of the Court of Appeal in R v Campbell [2006] Crim LR 6540, which had held that the minimum sentence for offences under section 51A of the Firearms Act 1968 did not apply to those between 18 and 21 years old. Those defendants are now also subject to a five-year minimum.



Costs

It is important that solicitors observe a small but significant change in the general criminal contract in relation to the grant of advocacy assistance. Solicitors lost their right to grant advocacy assistance on form CDS3 in relation to all court proceedings with effect from 16 April 2007. The power to use CDS3 remains for prison law and other areas of law outside the courts.



In relation to anti-social behaviour orders and closure orders, for instance, an application must now be made for a representation order, both in the magistrates' court and at the Crown Court. This means that there remains no means test for the Crown Court proceedings. In addition, the normal criminal costs rules apply.



In the magistrates' court, anti-social behaviour orders are almost inevitably in category 2 and forms CDS 6 and CDS 7 should be used as appropriate. Standard fees apply. However, as the matter is paid under the representation order, enhancement is now available where there are exceptional issues. This is likely to be the case in the more complex anti-social behaviour order or closure proceedings.