|
| |
|
(a) | mention any aggravating or mitigating factors which he (or it) has |
| |
regarded as being of particular importance; |
| |
(b) | if section 238 (guilty pleas) applies and as a result of taking into account |
| |
a matter mentioned in section 238(2) the officer or court has imposed a |
| |
punishment on the offender which is less severe than the punishment |
| 5 |
that would otherwise have been imposed, state that fact; |
| |
(c) | where the sentence is one of service detention, state that he (or it) is of |
| |
the opinion mentioned in section 241(4) and why; and |
| |
(d) | where the sentence is one of forfeiture of seniority, reduction in rank or |
| |
disrating, state that he (or it) is of the opinion mentioned in section |
| 10 |
| |
(2) | In complying with section 251(1)(a) a court other than the Summary Appeal |
| |
| |
(a) | where guidelines indicate that a sentence of a particular kind, or within |
| |
a particular range, would normally be appropriate for the offence and |
| 15 |
the sentence is of a different kind or is outside that range, state the |
| |
court’s reasons for deciding on a sentence of a different kind or outside |
| |
| |
(b) | mention any aggravating or mitigating factors which the court has |
| |
regarded as being of particular importance; |
| 20 |
(c) | if section 238 (guilty pleas) applies and as a result of taking into account |
| |
a matter mentioned in section 238(2) the court has imposed a |
| |
punishment on the offender which is less severe than the punishment |
| |
it would otherwise have imposed, state that fact; |
| |
(d) | where the sentence is a custodial sentence and section 259 applies (and |
| 25 |
the case does not fall within section 259(3)), state that it is of the opinion |
| |
mentioned in section 259(2) and why; |
| |
(e) | where the sentence is one of dismissal or dismissal with disgrace, state |
| |
that it is of the opinion mentioned in section 264(1) and why; |
| |
(f) | where the sentence is one of service detention, state that it is of the |
| 30 |
opinion mentioned in section 241(1) and why; |
| |
(g) | where the sentence is one of forfeiture of seniority, reduction in rank or |
| |
disrating, state that it is of the opinion mentioned in section 247(1) and |
| |
| |
(h) | where the sentence consists of or includes a community punishment |
| 35 |
(and the case does not fall within section 151(2) of the 2003 Act as |
| |
applied by section 269 of this Act), state that it is of the opinion |
| |
mentioned in section 269(1) and why. |
| |
(3) | In this section “guidelines” has the same meaning as in section 258. |
| |
| 40 |
253 | Savings for powers to mitigate sentence etc |
| |
| |
prevents a court or officer from mitigating an offender’s sentence by taking |
| |
into account any such matters as, in the court’s or officer’s opinion, are relevant |
| |
in mitigation of sentence. |
| 45 |
(2) | Nothing in those sections prevents a court or officer from mitigating any |
| |
punishment included in an offender’s sentence by taking into account any |
| |
other punishment included in that sentence. |
| |
|
| |
|
| |
|
(3) | Nothing in those sections or section 254 prevents a court, in the case of an |
| |
offender who is convicted of one or more other offences, from mitigating his |
| |
sentence by applying any rule of law as to the totality of sentences. |
| |
(4) | Subsections (2) and (3) do not affect the generality of subsection (1). |
| |
| 5 |
Principles and Procedures applying to Service Courts Only |
| |
| |
254 | Individual sentence for each offence |
| |
Where the Court Martial or the Service Civilian Court convicts a person, the |
| |
court must pass a separate sentence in respect of each offence of which he is |
| 10 |
| |
| |
(1) | Subject to subsection (2), a court must obtain and consider a pre-sentence |
| |
| |
(a) | forming any such opinion as is mentioned in— |
| 15 |
section 241(1) or 242(2) (service detention); |
| |
section 259(2) or 260(2) (custodial sentence); or |
| |
section 264(1) (dismissal or dismissal with disgrace); |
| |
(b) | forming any such opinion as is mentioned in section 269(1) or (2)(b) |
| |
(community punishment) or any opinion as to the suitability for the |
| 20 |
offender of the particular requirement or requirements to be included |
| |
in a community punishment; or |
| |
(c) | forming the required opinion for the purposes of section 218(2), 219(2), |
| |
220(2) or 221(1) (minimum sentences for dangerous offenders and |
| |
sexual or violent offences). |
| 25 |
(2) | Subsection (1) does not apply if, in the circumstances of the case, the court is of |
| |
the opinion that it is unnecessary to obtain a pre-sentence report. |
| |
(3) | Where the offender is aged under 18, the court must not form the opinion |
| |
mentioned in subsection (2) unless— |
| |
(a) | there exists a previous pre-sentence report obtained in respect of the |
| 30 |
| |
(b) | the court has had regard to the information contained in that report, or, |
| |
if there is more than one such report, the most recent report. |
| |
(4) | No sentence is invalidated by a failure of a court to obtain and consider a pre- |
| |
sentence report before doing any of the things mentioned in paragraphs (a) to |
| 35 |
| |
(5) | However, any court on appeal against a custodial sentence in respect of a |
| |
service offence, a sentence of dismissal or dismissal with disgrace, a sentence |
| |
of service detention or a community punishment— |
| |
(a) | must (subject to subsection (6)) obtain a pre-sentence report if none was |
| 40 |
obtained by the court below; and |
| |
(b) | must consider any such report obtained by it or by that court. |
| |
|
| |
|
| |
|
(6) | Subsection (5)(a) does not apply if the court is of the opinion— |
| |
(a) | that the court below was justified in forming an opinion that it was |
| |
unnecessary to obtain a pre-sentence report; or |
| |
(b) | that, although the court below was not justified in forming that opinion, |
| |
in the circumstances of the case at the time it is before the court it is |
| 5 |
unnecessary to obtain a pre-sentence report. |
| |
(7) | Where the offender is aged under 18, the court must not form the opinion |
| |
mentioned in subsection (6) unless— |
| |
(a) | there exists a previous pre-sentence report obtained in respect of the |
| |
| 10 |
(b) | the court has had regard to the information contained in that report or, |
| |
if there is more than one such report, the most recent report. |
| |
(8) | Subsections (5) to (7) do not apply to the Summary Appeal Court on an appeal |
| |
| |
(9) | Subsections (1) to (4) do apply to the Summary Appeal Court in relation to a |
| 15 |
sentence of service detention, but as if the opinions referred to in subsection |
| |
(1)(a) were any such opinion as is mentioned in section 241(4) or 242(3). |
| |
256 | Pre-sentence reports: supplementary |
| |
(1) | In section 255 and this section “pre-sentence report” has the meaning given by |
| |
section 158(1) of the 2003 Act. |
| 20 |
(2) | In section 158(1) of that Act as applied by this section, “an appropriate officer” |
| |
includes any registered social worker (as well as any person who is an |
| |
appropriate officer within the meaning given by section 158(2) of that Act). |
| |
(3) | In this section “registered social worker” means a person registered as a social |
| |
worker in a register maintained by— |
| 25 |
(a) | the General Social Care Council; |
| |
(b) | the Care Council for Wales; |
| |
(c) | the Scottish Social Services Council; or |
| |
(d) | the Northern Ireland Social Care Council. |
| |
(4) | Section 159(1) to (3) and (5) of the 2003 Act (disclosure of reports) apply in |
| 30 |
relation to a pre-sentence report obtained by a court for the purposes of section |
| |
255 of this Act as they apply in relation to a report obtained by a court for the |
| |
purposes of section 156 of that Act. |
| |
257 | Mentally disordered offenders: requirement for medical report |
| |
(1) | Subject to subsection (2), before passing a custodial sentence for a service |
| 35 |
offence on an offender who is or appears to be mentally disordered, a court |
| |
must obtain and consider a medical report. |
| |
(2) | Subsection (1) does not apply if, in the circumstances of the case, the court is of |
| |
the opinion that it is unnecessary to obtain a medical report. |
| |
(3) | Before passing a custodial sentence for a service offence on an offender who is |
| 40 |
or appears to be mentally disordered, a court must consider— |
| |
(a) | any information before it which relates to his mental condition |
| |
(whether given in a medical report, a pre-sentence report or otherwise); |
| |
| |
|
| |
|
| |
|
(b) | the likely effect of such a sentence on that condition and on any |
| |
treatment which may be available for it. |
| |
(4) | No custodial sentence which is passed in a case to which subsection (1) applies |
| |
is invalidated by a failure of a court to comply with that subsection, but any |
| |
court on an appeal against such a sentence— |
| 5 |
(a) | must obtain a medical report if none was obtained by the court below; |
| |
| |
(b) | must consider any such report obtained by it or by that court. |
| |
| |
“custodial sentence” does not include a custodial sentence fixed by law; |
| 10 |
“medical report” means a report as to an offender’s mental condition |
| |
made or submitted orally or in writing by a registered medical |
| |
practitioner who is approved for the purposes of section 12 of the |
| |
Mental Health Act 1983 (c. 20) by the Secretary of State as having |
| |
special experience in the diagnosis or treatment of mental disorder. |
| 15 |
(6) | Nothing in this section is to be taken to limit the generality of— |
| |
section 255 (pre-sentence reports); or |
| |
section 259(4) (information to be taken into account). |
| |
258 | Sentencing guidelines |
| |
| 20 |
(a) | in sentencing an offender for a service offence, have regard to any |
| |
guidelines that are relevant to the offender’s case; and |
| |
(b) | in exercising any other function relating to the sentencing of offenders |
| |
for service offences, have regard to any guidelines which are relevant |
| |
to the exercise of the function. |
| 25 |
(2) | However, the court may depart from the guidelines mentioned in subsection |
| |
(1)(a) or (b) if in its opinion the departure is justified by any features of service |
| |
life or of the service disciplinary system that are relevant to the case. |
| |
(3) | Subsection (2) does not limit any power existing apart from that subsection to |
| |
| 30 |
(4) | References in subsection (1)(a) and (b) to sentencing an offender for a service |
| |
offence include making any order when dealing with an offender in respect of |
| |
| |
| |
“guidelines” means sentencing guidelines issued by the Sentencing |
| 35 |
Guidelines Council under section 170(9) of the 2003 Act as definitive |
| |
guidelines, as revised by subsequent guidelines so issued; |
| |
“sentencing guidelines” has the meaning given by section 170(1) of that |
| |
| |
|
| |
|