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229 | Service restraining orders: supplementary |
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(1) | Section 7 (interpretation) of the Protection from Harassment Act 1997 (c. 40) |
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(“the 1997 Act”) applies for the purposes of section 228 of this Act as it applies |
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for the purposes of sections 5 and 5A of that Act. |
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(2) | Section 12 of the 1997 Act (national security etc) applies for the purposes of |
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section 228 of this Act as if— |
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(a) | the reference in subsection (1)(c) to serious crime were a reference to |
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serious service offences or serious crime (committed anywhere); |
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(b) | the reference in subsection (1) to the 1997 Act were a reference to section |
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(3) | Where the Court Martial Appeal Court allows an appeal against conviction it |
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may remit the case to the Court Martial for that court to consider whether to |
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proceed under section 228. |
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(4) | Section 228 applies in relation to a case remitted under subsection (3) as if |
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subsection (1)(a) were omitted. |
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230 | Service restraining orders: appeals |
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(1) | This section applies where a court makes an order under section 228— |
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(a) | after it has acquitted the defendant of an offence; or |
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(b) | in respect of a case remitted to it under section 229(3). |
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(2) | For the purposes of sections 284 to 286 (appeals from Service Civilian Court) |
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or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)— |
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(a) | the order is to be treated as a sentence passed on the defendant in |
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respect of the offence; and |
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(b) | the defendant is to be treated for the purpose of enabling him to appeal |
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against the order as if he had been convicted of the offence by the court. |
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(3) | For the purposes of any appeal against the order, references in section 16A of |
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the Court Martial Appeals Act 1968 to passing a sentence include making an |
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231 | Service restraining orders: variation and revocation |
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(1) | The Court Martial may vary or revoke an order under section 228 on an |
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(a) | the Director of Service Prosecutions; |
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(c) | any other person mentioned in the order. |
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(2) | Any person mentioned in the order is entitled to be heard on the hearing of an |
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application under subsection (1). |
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(3) | Where a person is convicted of an offence under section 228, the court that |
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convicts him may vary or revoke the order to which the offence relates. |
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Order for parent or guardian to enter into recognizance |
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232 | Order for service parent or service guardian to enter into recognizance |
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(a) | a person aged under 18 is convicted of an offence by the Court Martial |
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or the Service Civilian Court, |
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(b) | he is a civilian subject to service discipline, and |
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(c) | he has a service parent or service guardian, |
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| the court may, and in the circumstances mentioned in subsection (3) must, |
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exercise the powers conferred by this section. |
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(2) | The powers conferred by this section are as follows— |
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(a) | with the consent of the offender’s service parent or service guardian, to |
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order that parent or guardian to enter into a recognizance to take |
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proper care of the offender and exercise proper control over him; and |
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(b) | if the service parent or service guardian refuses consent and the court |
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considers the refusal unreasonable, to order that parent or guardian to |
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pay a fine not exceeding level 3 on the standard scale. |
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(3) | The circumstances referred to in subsection (1) as those in which the court must |
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exercise the powers conferred by this section are— |
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(a) | that the offender is under 16 when convicted; and |
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(b) | that the court is satisfied, having regard to the circumstances of the |
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case, that the exercise of those powers would be desirable in the |
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interests of preventing the commission by him of further offences. |
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(4) | Where the powers conferred by this section are not exercised in a case where |
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subsection (1) applies and the offender is under 16 when convicted, the court |
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must state in open court that it is not satisfied as mentioned in subsection (3)(b) |
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and why it is not so satisfied. |
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(5) | A parent or guardian is a “service parent” or “service guardian” for the |
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purposes of this section if he is a person subject to service law or a civilian |
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subject to service discipline. |
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(6) | For the purposes of this section, taking “care” of a person includes giving him |
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protection and guidance and “control” includes discipline. |
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233 | Recognizances and fines under section 232: further provision |
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(1) | An order under section 232 must not require the parent or guardian to enter |
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into a recognizance for an amount exceeding level 3 on the standard scale. |
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(2) | Such an order must not require the parent or guardian to enter into a |
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(a) | for a period exceeding three years; or |
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(b) | where the offender will reach the age of 18 in a period shorter than |
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three years, for a period exceeding that shorter period. |
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(3) | In fixing the amount of a recognizance under that section, the court must take |
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into account (among other things) the means of the parent or guardian so far |
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as they appear or are known to the court, and this applies whether taking those |
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means into account has the effect of increasing or reducing the amount of the |
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(4) | A recognizance under section 232 may, where the court has passed an overseas |
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community order on the offender, include a provision that the service parent |
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or service guardian ensure that the offender complies with the requirements of |
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(5) | A court imposing a fine under section 232(2)(b) may make an order under |
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section 250 (power to allow payment by instalments), and in relation to such a |
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fine section 250(2) to (7) have effect as if any reference to a service |
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compensation order were omitted. |
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234 | Recognizances: appeals, variation and revocation |
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(1) | For the purposes of sections 284 to 286 (appeals from Service Civilian Court) |
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or, as the case may be, the Court Martial Appeals Act 1968 (c. 20)— |
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(a) | an order under section 232 is to be treated as a sentence passed on the |
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parent or guardian for the offence; and |
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(b) | the parent or guardian is to be treated for the purpose of enabling him |
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to appeal against the order as if he had been convicted of the offence by |
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the court that made the order. |
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(2) | For the purposes of any appeal against the order, references in section 16A of |
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the Court Martial Appeals Act 1968 to passing a sentence include making an |
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(3) | On an appeal against the order the Court Martial Appeal Court may (as an |
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alternative to exercising its powers under section 16A(2) of that Act) quash the |
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(4) | The Court Martial may vary or revoke an order under section 232 if on the |
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application of the parent or guardian it appears to the court, having regard to |
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any change in the circumstances since the order was made, to be in the interests |
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235 | Forfeiture of recognizance |
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(a) | a recognizance under section 232 has been entered into, and |
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(b) | the offender commits a service offence during the period of the |
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| the Court Martial or the Service Civilian Court may on convicting the offender |
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of that offence (and subject to subsection (2)) declare the recognizance to be |
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(2) | The court may not make such a declaration where the parent or guardian is |
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neither a person subject to service law nor a civilian subject to service |
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(3) | If a court declares under this section that a recognizance is to be forfeited it |
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(a) | adjudge the parent or guardian to pay the sum in which he is bound; |
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(b) | adjudge him to pay part of that sum; or |
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(4) | A court declaring under this section that a recognizance is to be forfeited may |
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make an order under section 250 (power to allow payment by instalments); and |
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in relation to a forfeiture under this section, section 250(2) to (7) have effect as |
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if references to the fine or service compensation order were to the forfeiture. |
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Sentencing: Principles and Procedures |
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Principles and Procedures applying to Service Courts and Summary Hearings |
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General sentencing principles |
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236 | Duty to have regard to purposes of sentencing etc |
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(1) | A court or officer dealing with an offender for a service offence must have |
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regard to the following purposes of sentencing— |
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(a) | the punishment of offenders; |
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(b) | the maintenance of discipline; |
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(c) | the reduction of service offences and other crime (including reduction |
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(d) | the reform and rehabilitation of offenders; |
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(e) | the protection of the public; |
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(f) | the making of reparation by offenders to persons affected by their |
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(2) | If the offender is aged under 18 the court or officer must also have regard to his |
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(3) | This section does not apply in relation to— |
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(a) | an offence the sentence for which is fixed by law; |
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(b) | an offence the sentence for which, as a result of subsection (2) of any of |
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sections 218 to 221 and 224 to 226 of this Act (required custodial |
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sentences), falls to be imposed under— |
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any of sections 225 to 228 of the 2003 Act; |
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section 110(2) or 111(2) of the Sentencing Act; or |
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section 51A(2) of the Firearms Act 1968 (c. 27). |
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(4) | In this section “sentencing” includes the making of any order when dealing |
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with an offender in respect of his offence. |
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237 | Deciding the seriousness of an offence |
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(1) | A court or officer dealing with an offender for a service offence (“the current |
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offence”) must in considering the seriousness of the offence— |
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(a) | consider the offender’s culpability in committing the offence and any |
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harm which the offence caused, was intended to cause or could |
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(b) | if the offender has one or more previous convictions, treat as an |
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aggravating factor each previous conviction that the court or officer |
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considers can reasonably be so treated; |
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(c) | if the offender committed the current offence while— |
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(i) | charged with another service offence and released from service |
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| treat the fact that it was committed in those circumstances as an |
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(2) | In considering whether a previous conviction can reasonably be treated as an |
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aggravating factor the court or officer must have regard (in particular) to— |
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(a) | the nature of the offence to which the conviction relates and its |
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relevance to the current offence; and |
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(b) | the time that has elapsed since the conviction. |
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(3) | Any reference in subsection (1) or (2) to a previous conviction is to be read as a |
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(a) | a previous conviction of a service offence; or |
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(b) | a previous conviction by a court in the British Islands of an offence |
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other than a service offence. |
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(4) | Nothing in this section prevents the court or officer from treating a previous |
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conviction by a court outside the British Islands as an aggravating factor in any |
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case where the court or officer considers it appropriate to do so. |
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238 | Reduction in sentences for guilty pleas |
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(1) | This section applies where an offender— |
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(a) | has pleaded guilty to a service offence in proceedings before a court; or |
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(b) | at a summary hearing in respect of a service offence, has admitted the |
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(2) | In determining what sentence to pass on the offender, the court or officer |
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dealing with him for his offence must take into account— |
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(a) | the stage in the proceedings for the offence at which he indicated his |
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intention to plead guilty or his intention to admit the offence at a |
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(b) | the circumstances in which this indication was given. |
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(3) | In subsection (2) “sentence” includes any order made when dealing with the |
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offender in respect of his offence. |
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(4) | Subsection (5) applies in the case of an offence the sentence for which, as a |
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result of section 224(2) or 225(2) of this Act (required custodial sentences), falls |
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to be imposed under section 110(2) or 111(2) of the Sentencing Act. |
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(5) | Nothing in section 110(2) or 111(2) of that Act prevents the court, after taking |
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into account any matter mentioned in subsection (2) above, from imposing any |
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sentence which is at least 80% of that specified in section 110(2) or 111(2) of that |
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239 | Increase in sentence for racial or religious aggravation |
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(1) | This section applies where a court or officer dealing with an offender for a |
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service offence (other than an offence mentioned in subsection (3)) is |
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considering the seriousness of the offence. |
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(2) | If the offence was racially or religiously aggravated the court or officer— |
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(a) | must treat that fact as an aggravating factor; and |
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(b) | must state in open court that the offence was so aggravated. |
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(3) | This section does not apply in relation to an offence under section 42 as respects |
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which the corresponding offence under the law of England and Wales is an |
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offence under any of sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37) |
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(racially or religiously aggravated assaults, criminal damage, public order |
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offences and harassment etc). |
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(4) | Section 28 of the Crime and Disorder Act 1998 (meaning of “racially or |
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religiously aggravated”) applies for the purposes of this section as it applies for |
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the purposes of sections 29 to 32 of that Act. |
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240 | Increase in sentence for aggravation related to disability or sexual orientation |
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(1) | This section applies where a court or officer dealing with an offender for a |
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service offence within subsection (2) is considering the seriousness of the |
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(2) | A service offence is within this subsection if— |
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(a) | at the time of committing the offence, or immediately before or after |
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doing so, the offender demonstrated towards the victim of the offence |
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(i) | the sexual orientation (or presumed sexual orientation) of the |
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(ii) | a disability (or presumed disability) of the victim; or |
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(b) | the offence is motivated (wholly or partly)— |
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(i) | by hostility towards persons who are of a particular sexual |
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(ii) | by hostility towards persons who have a disability or a |
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(3) | The court or officer— |
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(a) | must treat as an aggravating factor the fact that the offence was |
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committed in any of the circumstances mentioned in paragraph (a) or |
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(b) of subsection (2); and |
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(b) | must state in open court that the offence was committed in such |
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(4) | It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) |
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whether the offender’s hostility is also based to any extent on any other factor |
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not mentioned in that paragraph. |
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(5) | In this section “disability” means any physical or mental impairment. |
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Service detention and custodial sentences |
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241 | Service detention: general restriction |
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(1) | A court may not pass a sentence of service detention in respect of an offence |
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unless it is of the opinion that the offence, or the combination of the offence and |
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one or more offences associated with it, was serious enough to warrant such a |
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(2) | In forming any such opinion as is mentioned in subsection (1) or section 242(2) |
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(length of sentence), a court must take into account all such information as is |
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available to it about the circumstances of the offence and any associated |
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offence, including any aggravating or mitigating factors. |
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(3) | In subsections (1) and (2) “court” does not include the Summary Appeal Court. |
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(4) | A sentence of service detention may not be— |
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(a) | passed by an officer at a summary hearing, or |
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(b) | passed or confirmed by the Summary Appeal Court, |
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| unless the officer or court is of the opinion that the offence it is in respect of (or, |
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if it is in respect of two or more offences, the combination of them) was serious |
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enough to warrant such a sentence. |
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(5) | In forming any such opinion as is mentioned in subsection (4) or section 242(3) |
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(length of sentence), an officer or the Summary Appeal Court must take into |
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account all such information as is available to him or it about the circumstances |
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of the offence (or offences), including any aggravating or mitigating factors. |
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242 | Length of term of service detention: general provision |
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(1) | This section applies where a sentence of service detention is passed in respect |
| 15 |
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(2) | Where the detention is imposed by a court other than the Summary Appeal |
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Court, it must be for the shortest term (not exceeding the permitted maximum) |
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that in the opinion of the court is commensurate with the seriousness of the |
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offence or the combination of the offence and one or more offences associated |
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(3) | Where the detention is imposed by an officer at a summary hearing or by the |
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Summary Appeal Court, it must be for the shortest term (not exceeding the |
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permitted maximum) that in the opinion of the officer or court is |
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commensurate with the seriousness of the offence (or, if it is imposed in respect |
| 25 |
of two or more offences, the seriousness of them taken together). |
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243 | Limit on combined term of sentences of service detention |
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(1) | A court or officer may not— |
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(a) | pass a sentence of service detention, |
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(b) | make a direction under section 188 (consecutive terms of service |
| 30 |
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(c) | make an order under section 190 or 192 (activation of suspended |
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sentence of service detention), |
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| whose effect would be that a person would (at the relevant time) be subject to |
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sentences of service detention the combined term of which exceeds two years. |
| 35 |
(2) | In subsection (1) “the relevant time” is the time immediately after the passing |
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of the sentence or the making of the direction or order. |
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(3) | For the purposes of this section, the combined term of sentences of service |
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(a) | if none of the sentences overlap, the aggregate of the terms of the |
| 40 |
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(b) | otherwise, the aggregate of— |
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(i) | the period (or periods) during which any of the sentences |
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overlaps any other of them; and |
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