Overarching Sentencing Guideline

10. Offenders Leaving The Jurisdiction

Sentencers are often required to sentence offenders who are non-resident and due to leave the jurisdiction, or offenders who may be leaving the jurisdiction at some point in the future (due to the offending or for another reason).

In some cases, it may be clear that the offender is leaving the jurisdiction.  Examples include:

  • Short-term visitors who do not reside in the Falkland Islands e.g. tourists, military personnel and short-term workers.
  • People who are leaving the Falkland Islands after a period of residence e.g. contract workers at the completion of their contract.

In some cases, the situation is less clear and there may not be certainty about whether the offender is going to be leaving the jurisdiction.  Examples include:

  • Non-permanent residents who expect to have their work permit revoked as a result of the offending and who are likely to face deportation proceedings.
  • Residents who are themselves planning to leave the jurisdiction (whether because of the offending or for some other reason) but have not booked flights and could remain in the jurisdiction if they decided to change their plans.

Depending on the specific circumstances of the case the following principles apply:

  • Sentencers should apply the relevant offence specific guideline or general principles guideline in the normal manner, to arrive at a sentence commensurate with the seriousness of the offence, that makes appropriate adjustment to reflect the mitigating and aggravating factors and applies any reductions for guilty plea and/or assistance.
  • Where it is not certain that an offender is going to leave the jurisdiction within a short period of time sentencers should not try to second guess what may happen in the future and should sentence on the basis that the offender will remain in the jurisdiction.
  • Sentencers should not take into account the fact that a person may leave the jurisdiction without completing the requirements of a community order or suspended sentence. If this situation arises at some point during the operation of a community order or suspended sentence, it will be for the probation service to decide whether to institute breach proceedings, request discharge of the order or allow the order to lapse. The decision made by the probation service will depend on the nature of the offence, the type of order in place, the remaining terms and duration of the order, and the specific circumstances of the case. 
  • Where it is certain that an offender is leaving the jurisdiction within a short period of time and the appropriate sentence would otherwise have been a community order then sentencers can impose a Band D fine as a direct alternative to a community order where the circumstances of the case mean that a community order is not appropriate.
  • A custodial sentence must not be imposed unless the offence, or the combination of the offence and one or more offences associated with it, is so serious that neither a fine alone nor a community sentence can be justified. A custodial sentence (including a suspended sentence) can only be imposed where the custody threshold has been passed and MUST NOT be imposed as an alternative to a financial penalty or community order.
  • Where an offence crosses the custody threshold and sentencers are required to consider whether to suspend the sentence of imprisonment then the guidance on the imposition of custodial sentences should be applied.
  • Where an offender is unable to complete requirements attached to a suspended sentence order due to leaving the jurisdiction then this is a factor that sentencers can take into account when deciding whether to suspend the custodial sentence. In these circumstances a sentencer may conclude that appropriate punishment can only be achieved by immediate custody.
  • Sentencers should also bear in mind that the imposition of a custodial sentence is itself both a punishment and a deterrent, and factors such as strong personal mitigation and significant harmful impact upon others may mean that the custodial term should be suspended notwithstanding that the offender will then immediately leave the jurisdiction.
  • A suspended sentence can be combined with a financial penalty, which could serve as an additional punitive element where required and where it is not practical to impose other requirements, such as unpaid work. Each case should be decided on its own facts and in accordance with the relevant guidance.
  • Sentencers should not take into account the possible outcome of deportation proceedings.  Decisions regarding deportation are mostly made after the conclusion of criminal proceedings and the situation regarding deportation is rarely clear at the time of sentence.  Sentencers should not try to second guess

 

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10. Offenders Leaving The Jurisdiction
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