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Magistrates Courts
 Criminal Solicitor Dot Net»Magistrates Courts
Subject Topic: Sentencing Post ReplyPost New Topic
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charmribs
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Posted: 04 December 2012 at 15:22 | IP Logged Quote charmribs

Just quick a question - I have had a sentence hearing
death by careless driving - it was accepted on the first
occasion that the driver had a momentary lapse of
attention and the incident fell within the lowest category
and the bench announced this in open Court along with the
fact that they were considering a community order. On the
date of sentence two of the magistrates were the same
from the first occasion and they retired, when they
returned they announced that the defendant was to be
sentenced to 16 weeks custody suspended. Custody was
never addressed on the second occasion as I believed it
was dealt with initially and the Bench was looking at a
community order. I just want to know whether I can deal
with this by way of case stated or JR?
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JonLewis
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Posted: 05 December 2012 at 16:36 | IP Logged Quote JonLewis

Wouldn't your best bet be an appeal to the Crown Court and to raise the issues there?
 
 
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Home County JP
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Posted: 05 December 2012 at 20:03 | IP Logged Quote Home County JP

The easiest way might be to get the matter re-listed in the same mags court under s142 MCA. Clearly it was a mistake to give a custodial sentence after indicating a community penalty, and s142 is designed to enable mistakes to be rectified.
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charmribs
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Posted: 06 December 2012 at 07:47 | IP Logged Quote charmribs

 
Thanks for the suggestion about the 142, I think my concern about an appeal is that it is a fresh hearing and they will not be bound by the initial view.
I will look at doing it by way of s.142.
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2088673
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Posted: 06 December 2012 at 10:11 | IP Logged Quote 2088673

Quote: charmribs
 
Thanks for the suggestion about the 142, I think my concern about an appeal is that it is a fresh hearing and they will not be bound by the initial view.
I will look at doing it by way of s.142.


I am rather doubtful about this.

Following the Chester Magistrates case all reports in this part of the SE are formally commissioned on an all options basis, regardless of any informal indication from the bench as to the sort of disposal they might initially envisage.
Before any formal application, perhaps you shd try to talk informally to the LA to check what was recorded on the court file and what the normal practice is..


 
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Hookers
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Posted: 06 December 2012 at 11:10 | IP Logged Quote Hookers

It is right that although an indication of a community penalty may be given, the court cannot tie the hands of the next Bench and will keep all it's options open for the next hearing.  However it is right to say that if the Court is adjourning to consider a community penalty as an alternative to Custody, the sentencing court should not then subsequently pass a custodial sentence if the pre-sentence report suggests that a community penalty would be suitable. R v Gillam.
 
One of the reasons that the court keeps all it's options open is incase there is something vastly different between the conviction and sentence.  Was there something different?  Was the report positive?  Did the client say something in his report to suggest otherwise?  No remorse, blaming someone else.  What were the reasons that the Court gave for going behind the first courts indication??
 
I think you need to address the above before you consider what to do.
 
I agree with JonLewis - list before the Crown Court.  Realistically is the Judge really going to interfere with what the first bench said?  I think not provided there is no change as I have suggested above.  Worst case scenario - he gets the suspended sentence.
 
Hookers


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littleDinosaurLuke
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Posted: 11 December 2012 at 09:22 | IP Logged Quote littleDinosaurLuke

The bench should be instructed to announce that an indication is just that and it does not bind any bench who may  ater sentence the defendant. I understood that benches were given a form of words to use when giving an indication to specifically avoid this scenario (where the defendant may claim to have been given an expectation re sentence).
 
The issue here must be the fairness of the sentence per se and not whether it in accordance with an earlier indication.
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wensley
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Posted: 11 December 2012 at 11:23 | IP Logged Quote wensley

Is it not more the issue that this in fact was predominantly the same bench that came back so not only did they give an indication that may lead to an expectation - something, as said, their form of words if done properly should not allow - but they have also apparently reserved the case to themselves supporting that expectation.
 
The fact that it would appear that custody was not dealt with as part of the mitigation on the basis of that earlier indication, at the very least the bench should have returned and given an indication that that was in thier minds and invited further specific representations. I'd still give the s.142 a go on that basis.
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