Negotiation secured a favourable basis of plea and sentence.
Crown court trial for serious drug offences
Our client faced trial with four others for drug offences. She was charged with conspiracy to supply cannabis. A large amount of cannabis had been found in three houses and the boot of a car. All defendants were connected by a family relationship.
Specifically, our client was said to have helped with the growing of the cannabis as well as the onward supply. Although our client accepted growing cannabis she maintained that this was for her own use. It was medicinal as she suffered from severe arthritis. Sarah obtained a medical report from her doctor to back up this assertion.
Unfortunately, the prosecution was not prepared to accept what she had said. They maintained that she had a key role in what was a substantial conspiracy. The case was listed for a ten day trial for all defendants including our client.
On the morning of trial there was movement on behalf of both our client and the prosecution. She was prepared to accept involvement on the basis that her house had been used to grow the cannabis. her route into cannabis use and this offending remained the same – her illness.
As a result of these negotiations the court was able to sentence our client far more leniently that would otherwise have been the case. Despite her late plea, William persuaded the judge to impose a sentence of only four months but suspend it. As a result, as long as our client complies with the community element of the order and does not commit further offences then she will not have to serve the sentence.
Basis of plea and sentencing guidelines
Crown court litigator Sarah Lees-Collier
The basis upon which our clients are sentenced will always be very important. This is particularly true in cases involving drug supply as the sentencing guidelines can be particularly unforgiving.
For example, whether you have a significant or leading role in a relatively small scale operation supplying cannabis can make a difference of three years to the starting point for sentence.
In this particular case, because of the guidelines, the starting point for the judge in considering sentence would have been twelve months. Bearing in mind the lateness of the plea, William was able to persuade the judge to reduce the sentence dramatically to the sentence finally imposed.
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In matters being investigated by the police or before the criminal courts it is sometimes the case that a simple act of contrition, genuinely felt and communicated, can alter a case outcome significantly.
For example, a timely admission and expression of sorrow can make the difference between a formal resolution, such as caution or charge or persuade the police to consider an out of court community resolution.
Credit for your guilty plea will attract the automatic discount on sentence, but it is a demonstration of genuine regret and remorse that may make all the difference.
Remorse might open the door to restorative justice
Restorative justice is now a popular out of court disposal. Such a resolution is preferable to almost all other outcomes when guilt is not in doubt. Research shows that the process can benefit both the victim and the offender.
Other out of court disposals such as driver awareness courses can also have an impact on an offender. This will particularly be the case where a defendant is willing to address their behaviour. Few participants will leave the course undisturbed by the graphic images of a child hit by a speeding vehicle.
In court, it can sway a bench in some cases to impose a more lenient punishment, so because of this we always work with clients to ensure mitigation is advanced adequately at all stages.
Of course, sorry in itself might not mean much, what are you sorry for? Is it for being caught? Or is it because you find yourself before a court? Could it be more than that and therefore does it amount to genuine remorse?
Genuine remorse and sentencing guidelines
This is an important question in sentencing terms because ‘genuine remorse’ is a mitigating factor in almost all sentencing guidelines and can make a substantial difference to the outcome.
The Oxford English Dictionary defines remorse as being:
‘A feeling of compunction, or of deep regret and repentance for a sin or wrong committed.’
A court will, however, be looking only for genuine remorse, and it is far from being a scientific exercise.
What does the Sentencing Council have to say?
The Sentencing Council commented on this as follows:
“This factor appears in all Sentencing Council guidelines and is one that sentencers are adept at assessing. Sentencers sitting in court on a daily basis are alive to the ease with which ‘sorry’ can be said but not meant. Evidence obtained during the course of interviews with judges (during the consultation process) confirmed the way in which judges carry out this assessment; often the judges used phrases in conversation with us such as ‘genuinely remorseful’, ‘genuine remorse’ and ‘true remorse’. This confirms the Council’s view that the consideration of remorse is nuanced, and that all the circumstances of the case will be considered by the sentencing in deciding whether any expressed remorse is in fact genuine.”
Not just credit for your guilty plea
In a recent lecture, a High Court Judge offered up these examples to illustrate genuine remorse:
• Deliberate withdrawal from an on-going criminal enterprise.
• Removing oneself from criminal associates or the sources of temptation.
• Behaviour immediately after the offence such as obtaining medical aid.
• Voluntary surrender and confession to the police.
• Efforts to reform by way of, e.g. drug-rehabilitation or alcohol withdrawal programmes.
• Return to education.
• Assistance to the authorities in combating crime.
• Voluntary restitution, payment of compensation without order from the court or restoring damaged property.
Less objective examples (but commonly seen) include:
• Expressions of remorse in police interviews after arrest.
• The impression of genuine remorse given to a probation officer, psychiatrist or psychologist when being interviewed for the purpose of preparing a report for the court before sentencing.
• Letters of apology written by offenders to victims or the court
How can we assist? Contact a criminal defence lawyer now.
It is our job when representing clients to ensure that the best case is put forward. You will want this to go beyond the usual mitigation offered by the credit for your guilty plea. This should involve other aspects of your character that might shine a light on your true self.
People make mistakes, sometimes serious ones, but rarely does that alone define the real person. We believe that carefully presented mitigation makes a real difference to the outcome of criminal cases.
We are experienced in approaching family, friends, employers and other community figures for reference letters on your behalf. The information that we request will make sure we build on the credit for your guilty plea because of this experience.
The sentencing process is the beginning of the end for many defendants. They can receive and accept their punishment and prepare to move on with their lives at the conclusion of any sentence imposed. For some, however, the anguish is not over as an appeal against the length or type of sentence might be looming because it is arguably an unduly lenient sentence.
Who Can Appeal?
The Attorney General and the Solicitor General have the power to apply for leave to appeal sentences for some offences to the Court of Appeal. This will be where the sentence is viewed as ‘unduly lenient’.
The Attorney General may become aware of any given case in different ways. it might be because the prosecution has referred it for consideration. Alternatively it might be because any other person, such as the victim or a member of the public, has brought it to their attention.
What Offences Does This Apply To?
There is a long list of offences which may be referred for consideration by the Court of Appeal.
Any offence triable only on indictment. These will include, for example, murder or robbery. The provision also includes youths who are tried before the Youth Court for indictable only offences. More and more frequently, this will include serious sexual offences.
A range of offences that are sentenced in the Crown Court. These will include offences of violence, sexual offences, drugs, immigration, slavery and trafficking.
A range of terrorism offences.
Is There a Time Limit?
A notice of appeal must be filed with the Court of Appeal no later than 28 days after the sentencing hearing. There is no power available to extend this time limit.
What Happens If There Is an Appeal?
The Court will apply a three stage procedure when considering an unduly lenient sentence. The court has expressed its role as follows:
‘We first of all consider the question of whether to grant such leave. It is important in approaching such matters to understand the safeguards that Parliament thought were appropriate to build in to the departure from what was then the law that there no question of increasing a sentence arose to the new procedures that enabled such a reference to be made.
Those new procedures required a number of steps to be taken before any such sentence could be increased. The first was that the Attorney General had to consider the matter and decide for himself whether he considered the sentence to be unduly lenient.
The second was that he then had to exercise his discretion as to whether there should be a reference because he was given a power to refer and there was no requirement that he should do so.
The third matter was that the court then had itself to consider whether to accept and grant leave for the referral.
Thereafter the court has to consider whether it considers the sentence to be unduly lenient and the final safeguard is that the court has to determine for itself whether, even if it does consider it unduly lenient, it would be right in the exercise of its discretion to increase that sentence. Each one of those steps was clearly a step that Parliament thought to be a necessary safeguard in changing the law.’
What Is an Unduly Lenient Sentence?
It will not be easy to spot such a sentence. This is because the sentencing exercise is always fact specific. In cases where there are sentencing guidelines in place it may be easier to identify unduly lenient sentences. This will not always be the case however. The task is often much more difficult when there are no guidelines. Alternatively it may be a case where there is particularly powerful mitigation.
The Court of Appeal test for undue leniency is:
‘A sentence is unduly lenient where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.’
What Happens If a Sentence Is Found to Be Unduly Lenient?
Where the Court considers the sentence unduly lenient, it has a discretion as to whether to exercise its powers:
‘Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where, in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned.’
Next Steps
If you have instructed VHS Fletchers in your case after your sentencing we will give you immediate advice if we have concerns that there may be a complaint that you have received an unduly lenient sentence. Unfortunately, the process is out of our hands however and we have no control over whether or not a reference is made.
In the event of an appeal, a great deal of work can be done on your behalf to prepare your case for this next stage. Thorough preparation can make all the difference as to whether or not the court of appeal interferes with your sentence.
For many offenders a prison sentence is a grim reality. It is a punishment that must be served. It will impact not only on the single individual but in many cases on their family as well.
Prison law specialist Irene Tolley
As a result, when the day of release comes it will be a significant moment. The door on the punishment has closed. It is an opportunity to draw a line under the past and move on. For many offenders, however, the release from custody comes with conditions. These are in the guise of license conditions that must be abided by. There is the threat of a return to prison if not obeyed in full.
The government has announced changes to the release license regime that come into effect on 13th November 2017. Prison law specialist Irene Tolley outlines the changes below.
New Licence Conditions Category
In the future, Release licenses will be able to restrict ‘specified conduct or specified acts’.
The government intends that conditions are to be put in place for particular offenders that will:
• Prohibit gambling
• prevent the drinking of alcohol
• ban the use of some social media websites
In planning for an offender’s release, a supervising officer will create a release plan. This will include the consideration of whether additional licence conditions are appropriate. These conditions are then submitted to the Governor of the releasing prison. They will review their application on behalf of the Secretary of State. Only once the Governor confirms the conditions do they become legally enforceable.
Why Prohibit Alcohol Consumption?
This is what the government has to say about this:
“The consumption of alcohol is a known factor in recidivism for some offenders. In 2004, the Prison Reform Trust published a paper which estimated that 63% of male offenders and 39% of female offenders within the England and Wales prison estate admitted to hazardous drinking before being imprisoned. At the same time, the estimated cost of alcohol-related crime and public disorder was £7.3 billion per year. A condition to require an offender not to consume alcohol would set an expectation for an offender on licence and compliance with that condition would be subject to recall.”
Can I challenge my Licence Conditions?
To be lawful, any licence condition, whether standard or additional, has to be necessary and proportionate to manage the offender’s risk of reoffending and risk of harm. It is always open to an offender to challenge the imposition of a licence condition by way of an application for judicial review. This would be where the offender considers that the condition is not necessary or proportionate to manage the risks of his case.
How We Can Help
Derby crime and prison law solicitor Rosamunde Benn
Careful preparation and dialogue with the prosecutor resolved the case in our client’s behaviour.
An allegation of sexual assault
Andrew’s client was in a serious position. Although the taxi driver was of good character, the CCTV in his cab was not working on the night of the incident. Further, there was his DNA on the chest of the complainant in the case.
The allegation had been made within minutes of the incident taking place. The complainant had phoned 999. She was clearly distressed during the call. She had repeated the allegation when officers came to her address, and made three separate written statements in support of the case.
The complainant maintained that during a taxi journey our client had continuously quizzed her about her tattoos and piercings. At the end of the journey he had pulled up her top and underwear and sexually assaulted her. She attended court for the trial fully willing to give evidence.
Free and independent police station advice
Our client had made the sensible choice of seeking legal advice prior to his police interview. Crime solicitor Jameel Malik was present in both sets of police interview to provide advice and assistance.
Jameel advised that his client answer the questions put to him by the police. He did so confirming:
there had been no inappropriate questions
the complainant had pulled up her own top
she was drunk
it was she who had then pulled him onto her chest
she had given him her real mobile phone number
He was charged with the offence at the conclusion of the investigation. The case was allocated to the Crown Court for trial.
An investigation of the evidence
Our client would gain a benefit in proceedings if there was evidence in support of his case. At first glance the evidence against him would appear very strong.
As the case developed, however, and as additional material was served a very different picture began to emerge.
The DNA evidence had been presented by the police as being decisive in our client’s case. Further examination showed that, hidden in the detail, was confirmation that the evidence could also be explained by the account that our client had given in interview.
In interview, he had explained the nature of the conversation he had during the journey. It was innocuous, but the detail he gave meant that the answers could only have come from the complainant. This began to undermine the account she had given.
Helpful bodycam footage
Bodycam footage showed what the complainant was wearing. It showed that tattoos on her legs would not have been obvious. This undermined her suggestion that our client had immediately seen these tattoos and made comment. Further, the footage showed that he would not have been able to see tattoos on her chest. This was important as she had said that he had mentioned them and asked to see them.
Listening to the entirety of the bodycam footage revealed that the complainant agreed that she had searched her bag for money as described by our client. Although it was hard to hear, she also told police that it was she who had lifted her top to show her tattoo. This was exactly what our client had said in interview.
Key evidence stored in our client’s mobile phone
An insistence on an inspection of our client’s mobile phone also showed that he was telling the truth about how he came to have the complainant’s phone number. There was no evidence in the call list that she had given him a false number that he had tried to ring. Instead, the log showed that she had called him and he had saved her number in his phone using her name. Again, he had said this in his police interview.
This information was only revealed through a detailed examination of the unused material in the case as well as the exhibits. Transcripts of the 999 calls and bodycam footage were prepared to go before the jury.
No evidence offered so a not guilty verdict
Ultimately, when the problems and inconsistencies with the prosecution witness were set out to prosecuting counsel on the day of trial there was no real alternative but for the Crown to offer no evidence. There was no longer a realistic prospect of conviction once there was full consideration of all of the available material.
Crown Court legal aid to fund defence of taxi driver
Our contract with the government permits us to provide representation at the Magistrates’ and Crown Courts under the criminal legal aid scheme. The description of how we dealt with the preparation of this case no doubt shows you that even when, such as in this case, a client has the benefit of legal aid we still provide our usual high quality service.
Although those there will be a few cases where a client in not financially eligible for Crown Court legal aid, these will be few and far between.
All of our office phone numbers are answered 24 hours a day, 7 days a week to provide emergency advice and representation to those detained by the police. Please do not hesitate to call.
