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Debate: The Judicial Procedures, Sentencing and Evidence Act (2014); Articles IX & X
Topic Started: 9th June 2014 - 12:45 PM (153 Views)
Elpidia
Member Avatar
The Rt. Hon.
As per Achkaerin's suggestion, due to the length of this bill, debate will be split into several threads. The entire bill shall be up for debate until at least 6/12/14.

Quote:
 

Article Nine Sentencing

(56) the Process at a sentencing hearing shall be as found under section 14 of the Act.

(57) If a court imposes a sentence outside the ranges indicated in the guideline it should state its reasons for doing so.

(58) These guidelines cover all laws which are applicable to the High Court when a criminal case is being pursued.

(59) The sentence must be just and proportionate and must never exceed the statutory maximum.

(60) The court should follow any guideline relevant to the case at hand.

(61) When sentencing a court should reflect the seriousness of the offence considering any mitigating or aggravating factors.

(62) A court should consider reductions for defendants that help to speed up the process of the court through their own actions.

Totality

(63) It is the principle of totality to:
i. Reflect all offending behaviour before it is just and proportionate and to decide whether sentences should run concurrently or consecutively.
ii. To address the offending behaviour together with the unique factors to the case.
iii. To apply a sentence that is just and proportionate.

(64) Concurrent sentences are appropriate where:-
i. Offences arise out of the same incident.
ii. The series of offences are of the same kind.
iii. Where to be passed the sentence should relfect the aggravated presence of associated offences.

(65) Consecutive sentences are appropriate where:-
i. The offences are not related by either fact or incident.
ii. Where the overall criminality is not sufficiently reflected by a concurrent sentence.
iii. Where an offence would undermine any minimum tarriffs.
iv. Where to be passed the court should consider whether the sentence is just and proportionate.

Previous Offences

(66) Where an offender asks for previous criminal conduct to be taken into account the court shall:
i. Decide whether to take previous criminal conduct into consideration (Where previous criminal conduct taken into consideration, pass a sentence which reflects all behaviour.)
ii. Consider whether the offender has not hindered the prosecution and has otherwise demonstrated a genuine determination by the offender to make amends.
iii. Previous offences should not be taken into consideration where:
iii(i) The offences together are likely to attract a greater sentence
iii(ii)It is in the intrest of justice to apply the matter as a seperate case entirely.
iii (iii) The offence constitutes a breach of an earlier sentence.
iii (iv)The previous conviction is not similar at all to the case in hand.

(67) The Court should only take offences into consideration whereby it does not offend the process of the court in such cases as:
i. They do not conflict with the Prosecutors list of prior offences.
ii. Where the date of the offences, relevant detail and other brief details about the offences has been made available to the court.
iii. Where the defendant has agreed with the Clerk to permit the previous offences.
iv. The defendant has admitted in open court the offences.

(68) If there is any doubt as to the admission under section 67 iv, the offence should not be taken into consideration

Sentencing Process

(69) It is the role of the court to:
i. Determine the starting point of the sentence for the initial offence
ii. Consider the aggravating and mitigating circumstances that justify an adjustment. In which case previous offences should be an aggravating circumstance. Where there is a large number of offences it may be agreeable to move beyond the normal range of the sentence.
iii. Consider whether the admission of the offences is an indicator of the remorse of the defendant and a demonstration of steps taken to address the offending behaviour.

Aggravating Factors

(70) Aggravating Factors may include (but are not limited to) issues similar to the following
i. Previous Convictions for similar offences (date relevant)
ii. Seriousness of the offence
iii. Bad conduct by the defendant between charge and sentence (may include breach of bail conditions, contempt of court, outbursts etc)
iv. Defendant is of questionable character.

Mitigating Factors

(71) Mitigating Factors may include (but are not limited to) issues similar to the following
First offence of this type (or first offence of this type for a 'reasonable' time)
i. Good conduct by the defendant throughout the process
ii. Defendant is of previous good character.
iii. Defendant pleaded Guilty (Sentence reduction may be reduced by greater scale the earlier the guilty plea is made)
iv. Defendant has other relevant circumstances (must be stated clearly in mitigation)

(72) When considering a sentence a Judge must consider precedents but may determine that there are significant circumstantial differences that distinguish the cases enough to render the precedent irrelevant.

Article Ten Appeals

(73) There is no automatic right to appeal

(74) In order to seek leave to appeal an application to appeal must be lodged in the “Appeals” thread in the High Court no more than seven (7) days after the sentence at first instance is given.

(75) The application to appeal must contain the specific grounds on which the case is being appealed and who is appealing it.

(76) The appeal can only be judged on the grounds on which the appeal is brought

(77) The Judge at first instance may not hear the appeal

(78) It is the decision of the Privy Council to give notice of a case that they intend to hear the appeal of.

(79) Appeals are heard by a panel of no less than three (3) judges (members of the Privy Council) But may have any number.

(80) All rules relevant to the case at first instance apply on appeal as well. (judge’s asking questions, objections etc)

(81) All rulings of the Privy Council are to be recorded in the Precedent Archive

(82) The process of an Appeal hearing is as follows
i. The chairing judge opens proceedings by stating the case details
ii. The Appellant states the facts of the case, grounds of appeal and presents his argument as to why the appeal should be allowed
iii. the Respondent states his argument as to why the appeal should be refused
iv. the Appellant has the right to respond to the Respondent’s argument
v. the Judges consider and deliver their ruling.

(83) The Privy Council may do any of the following in terms of sentence
i. Increase the sentence
ii. Decrease the sentence
iii. Quash the sentence

(84) The Privy Council may if it deems it appropriate order a re-trial of the case.
Edited by Elpidia, 9th June 2014 - 09:43 PM.
The Rt. Hon. Marquess Elpidia - Factbook - NS Page - EBC - Vignettes - Characters
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Elpidia
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The Rt. Hon.
Quote:
 
Sentencing

(56) The Process at a sentencing hearing shall be as found under section 14 of this Act.

(57) If a court imposes a sentence outside the ranges indicated in the guideline it should state its reasons for doing so.

(58) These guidelines cover all laws which are applicable to the High Court when a criminal case is being pursued.

(59) The sentence must be just and proportionate and must never exceed the statutory maximum.

(60) The court should follow any guideline relevant to the case at hand.

(61) When sentencing a court should reflect the seriousness of the offence considering any mitigating or aggravating factors.

(62) A court should consider reductions for defendants that help to speed up the process of the court through their own actions.

Totality

(63) It is the principle of totality to:
i. Reflect all offending behaviour before it is just and proportionate and to decide whether sentences should run concurrently or consecutively.
ii. To address the offending behaviour together with the unique factors to the case.
iii. To apply a sentence that is just and proportionate.

(64) Concurrent sentences are appropriate where:-
i. Offences arise out of the same incident.
ii. The series of offences are of the same kind.
iii. Where to be passed the sentence should reflect the aggravated presence of associated offences.

(65) Consecutive sentences are appropriate where:-
i. The offences are not related by either fact or incident.
ii. Where the overall criminality is not sufficiently reflected by a concurrent sentence.
iii. Where an offence would undermine any minimum tariffs.
iv. Where to be passed the court should consider whether the sentence is just and proportionate.

Previous Offences

(66) Where an offender asks for previous criminal conduct to be taken into account the court shall:
i. Decide whether to take previous criminal conduct into consideration (Where previous criminal conduct taken into consideration, pass a sentence which reflects all behaviour.)
ii. Consider whether the offender has not hindered the prosecution and has otherwise demonstrated a genuine determination by the offender to make amends.
iii. Previous offences should not be taken into consideration where:
iii(i) The offences together are likely to attract a greater sentence
iii(ii)It is in the intrest of justice to apply the matter as a seperate case entirely.
iii (iii) The offence constitutes a breach of an earlier sentence.
iii (iv)The previous conviction is not similar at all to the case in hand.

(67) The Court should only take offences into consideration whereby it does not offend the process of the court in such cases as:
i. They do not conflict with the Prosecutors list of prior offences.
ii. Where the date of the offences, relevant detail and other brief details about the offences has been made available to the court.
iii. Where the defendant has agreed with the Clerk to permit the previous offences.
iv. The defendant has admitted in open court the offences.

(68) If there is any doubt as to the admission under section 67 iv, the offence should not be taken into consideration

Sentencing Process

(69) It is the role of the court to:
i. Determine the starting point of the sentence for the initial offence
ii. Consider the aggravating and mitigating circumstances that justify an adjustment. In which case previous offences should be an aggravating circumstance. Where there is a large number of offences it may be agreeable to move beyond the normal range of the sentence.
iii. Consider whether the admission of the offences is an indicator of the remorse of the defendant and a demonstration of steps taken to address the offending behaviour.

Aggravating Factors

(70) Aggravating Factors may include (but are not limited to) issues similar to the following
i. Previous Convictions for similar offences (date relevant)
ii. Seriousness of the offence
iii. Bad conduct by the defendant between charge and sentence (may include breach of bail conditions, contempt of court, outbursts etc)
iv. Defendant is of questionable character.

Mitigating Factors

(71) Mitigating Factors may include (but are not limited to) issues similar to the following
First offence of this type (or first offence of this type for a 'reasonable' time)
i. Good conduct by the defendant throughout the process
ii. Defendant is of previous good character.
iii. Defendant pleaded Guilty (Sentence reduction may be reduced by greater scale the earlier the guilty plea is made)
iv. Defendant has other relevant circumstances (must be stated clearly in mitigation)

(72) When considering a sentence a Judge must consider precedents but may determine that there are significant circumstantial differences that distinguish the cases enough to render the precedent irrelevant.

Appeals

(73) There is no automatic right to appeal

(74) In order to seek leave to appeal an application to appeal must be lodged in the “Appeals” thread in the High Court no more than seven (7) days after the sentence at first instance is given.

(75) The application to appeal must contain the specific grounds on which the case is being appealed and who is appealing it.

(76) The appeal can only be judged on the grounds on which the appeal is brought

(77) The Judge at first instance may not hear the appeal

(78) It is the decision of the Judicial Committee of the Privy Council to give notice of a case that they intend to hear the appeal of.

(79) Appeals are heard by a panel of no less than three (3) Judges (Privy Councillors), but may have any number.

(80) All rules relevant to the case at first instance apply on appeal as well. (judge’s asking questions, objections etc)

(81) All rulings of the Judicial Committee of the Privy Council are to be recorded in the Precedent Archive

(82) The process of an Appeal hearing is as follows
i. The chairing judge opens proceedings by stating the case details
ii. The Appellant states the facts of the case, grounds of appeal and presents his argument as to why the appeal should be allowed
iii. the Respondent states his argument as to why the appeal should be refused
iv. the Appellant has the right to respond to the Respondent’s argument
v. the Judges consider and deliver their ruling.

(83) The Judicial Committee of the Privy Council may do any of the following in terms of sentence
i. Increase the sentence
ii. Decrease the sentence
iii. Quash the sentence

(84) The Judicial Committee of the Privy Council may if it deems it appropriate order a re-trial of the case.
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