Overarching Sentencing Guideline

Stages of Sentencing

2.3 Stage Five: Reduction in Sentence for Guilty Plea

In determining what sentence to pass on an offender who has pleaded guilty to an offence in criminal proceedings, a court must take into account:

  • the stage in the proceedings for the offence at which the offender indicated an intention to plead guilty; and
  • the circumstances in which this indication was given.

If, as a result of taking these matters into account, the court imposes a punishment on the offender which is less severe than the punishment it would otherwise have imposed, it must state in open court that it has done so[1].

Key principles

The purpose of reducing a sentence as a result of a guilty plea is to encourage those who are going to plead guilty to do so as early in the court process as possible. Nothing in this guideline should be used to put pressure on a defendant to plead guilty.

Although a guilty person is entitled not to admit the offence and to put the prosecution to proof of its case, an acceptance of guilt:

  • normally reduces the impact of the crime upon victims;
  • saves victims and witnesses from having to testify; and
  • is in the public interest in that it saves public time and money on investigations and trials.

A guilty plea produces greater benefits the earlier the plea is indicated. In order to maximise the above benefits and to provide an incentive to those who are guilty to indicate a guilty plea as early as possible, this guideline makes a clear distinction between a reduction in the sentence available at the first stage of the proceedings and a reduction in the sentence available at a later stage of the proceedings.

The purpose of reducing the sentence for a guilty plea is to yield the benefits described above.

The guilty plea should be considered by the court to be independent of the offender’s personal mitigation.

Factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse should not be taken into account in determining the level of reduction. Rather, they should be considered separately and prior to any guilty plea reduction, as potential mitigating factors.

The benefits apply regardless of the strength of the evidence against an offender. The strength of the evidence should not be taken into account when determining the level of reduction.

The guideline applies only to the punitive elements of the sentence and has no impact on ancillary orders including orders of disqualification from driving.

Determining the level of reduction

The maximum level of reduction in sentence for a guilty plea is one-third.

Plea indicated at the first stage of the proceedings

Where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made. The first stage will normally be the first hearing at which a plea or indication of plea is required by the court.

Plea indicated after the first stage of proceedings – maximum one quarter – sliding scale of reduction thereafter

After the first stage of the proceedings the maximum level of reduction is one-quarter.

The reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date.

The reduction should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial.

For the purposes of this guideline a trial will be deemed to have started when the prosecution begins to call evidence.

Applying the reduction

Imposing one type of sentence rather than another

The reduction in sentence for a guilty plea can be taken into account by imposing one type of sentence rather than another; for example:

  • by reducing a custodial sentence to a community sentence, or
  • by reducing a community sentence to a fine.

Where a court has imposed one sentence rather than another to reflect the guilty plea there should normally be no further reduction on account of the guilty plea. Where, however, the less severe type of sentence is justified by other factors, the appropriate reduction for the plea should be applied in the normal way.

Keeping a case in the Summary Court to reflect a guilty plea

Reducing a custodial sentence to reflect a guilty plea may enable the Summary Court to retain jurisdiction rather than committing the case to the Magistrate’s Court for sentence. In such cases the Summary Court should apply the appropriate reduction to the sentence for the offence(s) arrived at in accordance with any offence specific sentencing guideline and if the resulting sentence is within its jurisdiction then it should go on to sentence.

Exceptions

Further information, assistance or advice necessary before indicating plea

Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.

In considering whether this exception applies, sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.

Newton hearings and special reasons hearings

In circumstances where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction, even to zero.

Offender convicted of a lesser or different offence

If an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication of plea (to the lesser or different offence) was made taking into account any other of these exceptions that apply. Where the offered plea is a permissible alternative to the offence charged, the offender will not be treated as having made an unequivocal indication unless the offender has entered that plea.

Mandatory life sentences for murder and treason

Murder and treason are the most serious criminal offences and the sentence prescribed for these offences is different from all other sentences. By law, the sentence for murder and the sentence for treason is imprisonment (detention) for life and an offender will remain subject to the sentence for the rest of his or her life.

Given the special characteristic of these offences and the unique statutory starting points for the minimum term to be served by an offender, careful consideration has to be given to the extent of any reduction for a guilty plea and to the need to ensure that the minimum term properly reflects the seriousness of the offence.

Whilst the general principles continue to apply (both that a guilty plea should be encouraged and that the extent of any reduction should reduce if the indication of plea is later than the first stage of the proceedings) the process of determining the level of reduction will be different.

The court will weigh carefully the overall length of the minimum term taking into account other reductions for which the offender may be eligible so as to avoid a combination leading to an inappropriately short sentence.

Where it is appropriate to reduce the minimum term having regard to a plea of guilty, the reduction will not exceed one-sixth and will never exceed five years.

The maximum reduction of one-sixth or five years (whichever is less) should only be given when a guilty plea has been indicated at the first stage of the proceedings. Lesser reductions should be given for guilty pleas after that point, with a maximum of one-twentieth being given for a guilty plea on the first day of trial.

Notwithstanding this guidance the overriding principle of sentencing is that the minimum term should properly reflect the seriousness of the offence.

 

[1] Section 479 Criminal Procedure and Evidence Ordinance 2014

 

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Reduction - bail conditions (curfew)

 

 

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2.3 Stage Five: Reduction in Sentence for Guilty Plea
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