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Criminal Justice Bill


Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

    84

 

 134   Saving

No provision of this Part has effect in relation to criminal proceedings begun

before the commencement of that provision.

Part 12

Sentencing

5

Chapter 1

General provisions about sentencing

Matters to be taken into account in sentencing

 135   Purposes of sentencing

     (1)    Any court dealing with an offender in respect of his offence must have regard

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to the following purposes of sentencing—

           (a)           the punishment of offenders,

           (b)           the reduction of crime (including its reduction by deterrence),

           (c)           the reform and rehabilitation of offenders,

           (d)           the protection of the public, and

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           (e)           the making of reparation by offenders to persons affected by their

offences.

     (2)    Subsection (1) does not apply—

           (a)           in relation to an offender who is aged under 18 at the time of conviction,

           (b)           to an offence the sentence for which is fixed by law,

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           (c)           to an offence the sentence for which falls to be imposed under section

51A(2) of the Firearms Act 1968 (c. 27) (minimum sentence for certain

firearms offences), under subsection (2) of section 110 or 111 of the

Sentencing Act (required custodial sentences) or under any of sections

216 to 219 of this Act (dangerous offenders), or

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           (d)           in relation to the making under Part 3 of the Mental Health Act 1983

(c. 20) of a hospital order (with or without a restriction order), an

interim hospital order, a hospital direction or a limitation direction.

     (3)    In this Chapter “sentence”, in relation to an offence, includes any order made

by a court when dealing with the offender in respect of his offence; and

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“sentencing” is to be construed accordingly.

 136   Determining the seriousness of an offence

     (1)    In considering the seriousness of any offence, the court must consider the

offender’s culpability in committing the offence and any harm which the

offence caused, was intended to cause or might forseeably have caused.

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     (2)    In considering the seriousness of an offence (“the current offence”) committed

by an offender who has one or more previous convictions, the court must treat

each previous conviction as an aggravating factor if (in the case of that

conviction) the court considers that it can reasonably be so treated having

regard, in particular, to—

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Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

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           (a)           the nature of the offence to which the conviction relates and its

relevance to the current offence, and

           (b)           the time that has elapsed since the conviction.

     (3)    In considering the seriousness of any offence committed while the offender

was on bail, the court must treat the fact that it was committed in those

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circumstances as an aggravating factor.

     (4)    Any reference in subsection (2) to a previous conviction is to be read as a

reference to—

           (a)           a previous conviction by a court in the United Kingdom, or

           (b)           a previous finding of guilt in service disciplinary proceedings.

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     (5)    Subsections (2) and (4) do not prevent the court from treating a previous

conviction by a court outside the United Kingdom as an aggravating factor in

any case where the court considers it appropriate to do so.

 137   Reduction in sentences for guilty pleas

     (1)    In determining what sentence to pass on an offender who has pleaded guilty

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to an offence in proceedings before that or another court, a court must take into

account—

           (a)           the stage in the proceedings for the offence at which the offender

indicated his intention to plead guilty, and

           (b)           the circumstances in which this indication was given.

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     (2)    In the case of an offence the sentence for which falls to be imposed under

subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that

subsection prevents the court, after taking into account any matter referred to

in subsection (1) of this section, from imposing any sentence which is not less

than 80 per cent of that specified in that subsection.

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 138   Increase in sentences for racial or religious aggravation

     (1)    This section applies where a court is considering the seriousness of an offence

other than one under sections 29 to 32 of the Crime and Disorder Act 1998

(c. 37) (racially or religiously aggravated assaults, criminal damage, public

order offences and harassment etc).

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     (2)    If the offence was racially or religiously aggravated, the court—

           (a)           must treat that fact as an aggravating factor, and

           (b)           must state in open court that the offence was so aggravated.

     (3)    Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or

religiously aggravated”) applies for the purposes of this section as it applies for

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the purposes of sections 29 to 32 of that Act.

General restrictions on community sentences

 139   Meaning of “community sentence” etc.

     (1)    In this Part “community sentence” means a sentence which consists of or

includes—

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           (a)           a community order (as defined by section 170), or

           (b)           one or more youth community orders.

 

 

Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

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     (2)    In this Chapter “youth community order” means—

           (a)           a curfew order as defined by section 163 of the Sentencing Act,

           (b)           an exclusion order under section 40A(1) of that Act,

           (c)           an attendance centre order as defined by section 163 of that Act,

           (d)           a supervision order under section 63(1) of that Act, or

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           (e)           an action plan order under section 69(1) of that Act.

 140   Restrictions on imposing community sentences

     (1)    A court must not pass a community sentence on an offender unless it is of the

opinion that the offence, or the combination of the offence and one or more

offences associated with it, was serious enough to warrant such a sentence.

10

     (2)    Where a court passes a community sentence which consists of or includes a

community order—

           (a)           the particular requirement or requirements forming part of the

community order must be such as, in the opinion of the court, is, or

taken together are, the most suitable for the offender, and

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           (b)           the restrictions on liberty imposed by the order must be such as in the

opinion of the court are commensurate with the seriousness of the

offence, or the combination of the offence and one or more offences

associated with it.

     (3)    Where a court passes a community sentence which consists of or includes one

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or more youth community orders—

           (a)           the particular order or orders forming part of the sentence must be such

as, in the opinion of the court, is, or taken together are, the most suitable

for the offender, and

           (b)           the restrictions on liberty imposed by the order or orders must be such

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as in the opinion of the court are commensurate with the seriousness of

the offence, or the combination of the offence and one or more offences

associated with it.

     (4)    Subsections (1) and (2)(b) have effect subject to section 143(2).

 141   Passing of community sentence on offender remanded in custody

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     (1)    In determining the restrictions on liberty to be imposed by a community order

or youth community order in respect of an offence, the court may have regard

to any period for which the offender has been remanded in custody in

connection with the offence or any other offence the charge for which was

founded on the same facts or evidence.

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     (2)    In subsection (1) “remanded in custody” has the meaning given by section

233(2).

 142   Community sentence not available where sentence fixed by law etc.

The power to make a community order or youth community order is not

exercisable in respect of an offence for which the sentence—

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           (a)           is fixed by law,

           (b)           falls to be imposed under section 51A(2) of the Firearms Act 1968 (c. 27)

(required custodial sentence for certain firearms offences),

 

 

Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

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           (c)           falls to be imposed under section 110(2) or 111(2) of the Sentencing Act

(requirement to impose custodial sentences for certain repeated

offences committed by offenders aged 18 or over), or

           (d)           falls to be imposed under any of sections 216 to 219 of this Act

(requirement to impose custodial sentences for certain offences

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committed by offenders posing risk to public).

 143   Community order for persistent offender previously fined

     (1)    Subsection (2) applies where—

           (a)           a person aged 16 or over is convicted of an offence (“the current

offence”),

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           (b)           on three or more previous occasions he has, on conviction by a court in

the United Kingdom of any offence committed by him after attaining

the age of 16, had passed on him a sentence consisting only of a fine,

and

           (c)           despite the effect of section 136(2), the court would not (apart from this

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section) regard the current offence, or the combination of the current

offence and one or more offences associated with it, as being serious

enough to warrant a community sentence.

     (2)    The court may make a community order in respect of the current offence

instead of imposing a fine if it considers that, having regard to all the

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circumstances including the matters mentioned in subsection (3), it would be

in the interests of justice to make such an order.

     (3)    The matters referred to in subsection (2) are—

           (a)           the nature of the offences to which the previous convictions mentioned

in subsection (1)(b) relate and their relevance to the current offence, and

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           (b)           the time that has elapsed since the offender’s conviction of each of those

offences.

     (4)    In subsection (1)(b), the reference to conviction by a court in the United

Kingdom includes a reference to the finding of guilt in service disciplinary

proceedings; and, in relation to any such finding of guilt, the reference to the

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sentence passed is a reference to the punishment awarded.

     (5)    For the purposes of subsection (1)(b), a compensation order does not form part

of an offender’s sentence.

     (6)    For the purposes of subsection (1)(b), it is immaterial whether on other

previous occasions a court has passed on the offender a sentence not consisting

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only of a fine.

     (7)    This section does not limit the extent to which a court may, in accordance with

section 136(2), treat any previous convictions of the offender as increasing the

seriousness of an offence.

General restrictions on discretionary custodial sentences

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 144   General restrictions on imposing discretionary custodial sentences

     (1)    This section applies where a person is convicted of an offence punishable with

a custodial sentence other than one—

           (a)           fixed by law, or

 

 

Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

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           (b)           falling to be imposed under section 51A(2) of the Firearms Act 1968

(c. 27), under 110(2) or 111(2) of the Sentencing Act or under any of

sections 216 to 219 of this Act.

     (2)    The court must not pass a custodial sentence unless it is of the opinion that the

offence, or the combination of the offence and one or more offences associated

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with it, was so serious that neither a fine alone nor a community sentence can

be justified for the offence.

     (3)    Nothing in subsection (2) prevents the court from passing a custodial sentence

on the offender if—

           (a)            he fails to express his willingness to comply with a requirement which

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is proposed by the court to be included in a community order and

which requires an expression of such willingness, or

           (b)           he fails to comply with an order under section 154(2) (pre-sentence

drug testing).

 145   Length of discretionary custodial sentences: general provision

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     (1)    This section applies where a court passes a custodial sentence other than one

fixed by law or falling to be imposed under section 216 or 217.

     (2)    Subject to section 51A(2) of the Firearms Act 1968, sections 110(2) and 111(2) of

the Sentencing Act and sections 218(2) and 219(2) of this Act, the custodial

sentence must be for the shortest term (not exceeding the permitted maximum)

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that in the opinion of the court is commensurate with the seriousness of the

offence, or the combination of the offence and one or more offences associated

with it.

General limit on magistrates’ court’s power to impose imprisonment

 146   General limit on magistrates’ court’s power to impose imprisonment

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     (1)    A magistrates’ court does not have power to impose imprisonment for more

than 12 months in respect of any one offence.

     (2)    Unless expressly excluded, subsection (1) applies even if the offence in        

question is one for which a person would otherwise be liable on summary

conviction to imprisonment for more than 12 months.

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     (3)    Subsection (1) is without prejudice to section 133 of the Magistrates’ Courts Act

1980 (c. 43) (consecutive terms of imprisonment).

     (4)    Any power of a magistrates’ court to impose a term of imprisonment for non-

payment of a fine, or for want of sufficient distress to satisfy a fine, is not

limited by virtue of subsection (1).

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     (5)    In subsection (4) “fine” includes a pecuniary penalty but does not include a

pecuniary forfeiture or pecuniary compensation.

     (6)    In this section “impose imprisonment” means pass a sentence of imprisonment

or fix a term of imprisonment for failure to pay any sum of money, or for want

of sufficient distress to satisfy any sum of money, or for failure to do or abstain

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from doing anything required to be done or left undone.

 

 

Criminal Justice Bill
Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

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     (7)    Section 132 of the Magistrates’ Courts Act 1980 (c. 43) contains provisions

about the minimum term of imprisonment which may be imposed by a

magistrates’ court.

 147   Consecutive terms of imprisonment

     (1)    Section 133 of the Magistrates’ Courts Act 1980 (consecutive terms of

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imprisonment) is amended as follows.

     (2)    In subsection (1), for “6 months” there is substituted “65 weeks”.

     (3)    Subsection (2) is omitted.

     (4)    In subsection (3) for “the preceding subsections” there is substituted

“subsection (1) above”.

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 148   Power to increase limits

The Secretary of State may by order—

           (a)           amend subsections (1) and (2) of section 146 by substituting for each

reference to 12 months a reference to 18 months, and

           (b)           amend subsection (1) of section 133 of the Magistrates’ Courts Act 1980

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by substituting for the reference to 65 weeks (inserted by section 147(2))

a reference to 24 months.

Procedural requirements for imposing community sentences and discretionary custodial

sentences

 149   Pre-sentence reports and other requirements

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     (1)    In forming any such opinion as is mentioned in section 140(1), (2)(b) or (3)(b),

section 144(2) or section 145(2), a court must take into account all such

information as is available to it about the circumstances of the offence or (as the

case may be) of the offence and the offence or offences associated with it,

including any aggravating or mitigating factors.

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     (2)    In forming any such opinion as is mentioned in section 140(2)(a) or (3)(a), the

court may take into account any information about the offender which is before

it.

     (3)    Subject to subsection (4), a court must obtain and consider a pre-sentence

report before—

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           (a)           in the case of a custodial sentence, forming any such opinion as is

mentioned in section 144(2), section 145(2), section 216(1)(b), section

217(1)(b), section 218(1)(b) or section 219(1)(b)(i), or

           (b)           in the case of a community sentence, forming any such opinion as is

mentioned in section 140(1), (2)(b) or (3)(b) or any opinion as to the

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suitability for the offender of the particular requirement or

requirements to be imposed by the community order.

     (4)    Subsection (3) does not apply if, in the circumstances of the case, the court is of

the opinion that it is unnecessary to obtain a pre-sentence report.

     (5)    In a case where the offender is aged under 18 and the offence is not triable only

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on indictment and there is no other offence associated with it that is triable only

 

 

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Part 12 — Sentencing
Chapter 1 — General provisions about sentencing

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on indictment, the court must not form the opinion mentioned in subsection (4)

unless—

           (a)           there exists a previous pre-sentence report obtained in respect of the

offender, and

           (b)           the court has had regard to the information contained in that report, or,

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if there is more than one such report, the most recent report.

     (6)    No custodial sentence or community sentence is invalidated by the failure of a

court to obtain and consider a pre-sentence report before forming an opinion

referred to in subsection (3), but any court on an appeal against such a

sentence—

10

           (a)           must, subject to subsection (7), obtain a pre-sentence report if none was

obtained by the court below, and

           (b)           must consider any such report obtained by it or by that court.

     (7)    Subsection (6)(a) does not apply if the court is of the opinion—

           (a)           that the court below was justified in forming an opinion that it was

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unnecessary to obtain a pre-sentence report, or

           (b)           that, although the court below was not justified in forming that opinion,

in the circumstances of the case at the time it is before the court, it is

unnecessary to obtain a pre-sentence report.

     (8)    In a case where the offender is aged under 18 and the offence is not triable only

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on indictment and there is no other offence associated with it that is triable only

on indictment, the court must not form the opinion mentioned in subsection (7)

unless—

           (a)           there exists a previous pre-sentence report obtained in respect of the

offender, and

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           (b)           the court has had regard to the information contained in that report, or,

if there is more than one such report, the most recent report.

 150   Additional requirements in case of mentally disordered offender

     (1)    Subject to subsection (2), in any case where the offender is or appears to be

mentally disordered, the court must obtain and consider a medical report

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before passing a custodial sentence other than one fixed by law.

     (2)    Subsection (1) does not apply if, in the circumstances of the case, the court is of

the opinion that it is unnecessary to obtain a medical report.

     (3)    Before passing a custodial sentence other than one fixed by law on an offender

who is or appears to be mentally disordered, a court must consider—

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           (a)           any information before it which relates to his mental condition

(whether given in a medical report, a pre-sentence report or otherwise),

and

           (b)           the likely effect of such a sentence on that condition and on any

treatment which may be available for it.

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     (4)    No custodial sentence which is passed in a case to which subsection (1) applies

is invalidated by the failure of a court to comply with that subsection, but any

court on an appeal against such a sentence—

           (a)           must obtain a medical report if none was obtained by the court below,

and

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           (b)           must consider any such report obtained by it or by that court.

 

 

 
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