|
| |
|
(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 |
| |
| |
|
| |
|
| |
|
Custodial sentences and service detention |
| |
259 | Discretionary custodial sentences: general restrictions |
| |
(1) | This section applies where a court is dealing with an offender for a service |
| |
offence punishable with a custodial sentence, other than an offence the |
| |
| 5 |
| |
(b) | falls to be imposed as a result of subsection (2) of any of sections 218 to |
| |
| |
(2) | The court must not pass a custodial sentence unless it is of the opinion that the |
| |
offence, or the combination of the offence and one or more offences associated |
| 10 |
with it, was so serious that no less severe sentence can be justified for the |
| |
| |
(3) | Nothing in subsection (2) prevents the court from passing a custodial sentence |
| |
| |
(a) | the court had proposed to award a community punishment; and |
| 15 |
(b) | the offender failed to express his willingness to comply with a |
| |
requirement which the court proposed to include in the community |
| |
punishment and which required an expression of such willingness. |
| |
(4) | In forming any such opinion as is mentioned in subsection (2) or section 260(2) |
| |
(length of sentence), a court must take into account all such information as is |
| 20 |
available to it about the circumstances of the offence and any associated |
| |
offence, including any aggravating or mitigating factors. |
| |
(5) | For the purposes of this section a sentence falls to be imposed as a result of |
| |
subsection (2) of section 224, 225 or 226 if it is required by that subsection and |
| |
the court is not of the opinion there mentioned. |
| 25 |
260 | Length of discretionary custodial sentences: general provision |
| |
(1) | This section applies where a court passes a custodial sentence for a service |
| |
offence, other than a sentence fixed by law or falling to be imposed as a result |
| |
| |
(2) | The custodial sentence must be for the shortest term (not exceeding the |
| 30 |
permitted maximum) that in the opinion of the court is commensurate with the |
| |
seriousness of the offence or the combination of the offence and one or more |
| |
offences associated with it. |
| |
(3) | Subsection (2) is subject to sections 219, 221, 224, 225 and 226 (required |
| |
minimum sentences for certain offences). |
| 35 |
261 | Power to recommend licence conditions |
| |
In section 238(1) of the 2003 Act (court imposing prison term of 12 months or |
| |
more may recommend licence conditions) “court” includes a court dealing |
| |
with an offender for a service offence. |
| |
262 | Restriction on imposing custodial sentence or service detention on |
| 40 |
| |
| |
|
| |
|
| |
|
| |
| |
| must not be passed by the Court Martial or the Service Civilian Court, or |
| |
passed or confirmed by the Summary Appeal Court, in respect of an offender |
| |
who is not legally represented in that court. |
| 5 |
(2) | Subsection (1) does not apply if the offender— |
| |
(a) | having been informed of his right to apply for legal representation and |
| |
having had the opportunity to do so, refused or failed to apply; or |
| |
(b) | was aged 21 or over when convicted, and has previously been |
| |
sentenced to imprisonment by a civilian court in any part of the United |
| 10 |
Kingdom or for a service offence. |
| |
(3) | The Court Martial or the Service Civilian Court must not— |
| |
(a) | pass a sentence of detention under section 208 or 217 (young offenders’ |
| |
| |
(b) | make an order under section 210 (detention and training), |
| 15 |
| on or in respect of an offender who is not legally represented in that court |
| |
unless the offender, having been informed of his right to apply for legal |
| |
representation and having had the opportunity to do so, refused or failed to |
| |
| |
(4) | For the purposes of this section an offender is “legally represented” in the |
| 20 |
Court Martial or the Service Civilian Court only if he has the assistance of |
| |
counsel or a solicitor to represent him in the proceedings in that court at some |
| |
time after he is found guilty and before he is sentenced. |
| |
(5) | For the purposes of this section an offender is “legally represented” in the |
| |
| 25 |
(a) | in a case where his appeal was only against punishment, if he has the |
| |
assistance of counsel or a solicitor to represent him at some time during |
| |
the proceedings in that court; |
| |
(b) | in any other case, only if he has the assistance of counsel or a solicitor |
| |
to represent him in the proceedings in that court at some time after the |
| 30 |
court confirms or substitutes the finding and before it confirms or |
| |
| |
(6) | For the purposes of subsection (2)(b)— |
| |
(a) | a previous sentence of imprisonment which has been suspended and |
| |
has not taken effect is to be disregarded; |
| 35 |
(b) | “sentence of imprisonment” does not include a committal for contempt |
| |
of court or any kindred offence. |
| |
263 | Effect of duties to pass custodial sentences on other powers of punishment |
| |
(1) | Where a provision of this Act requires a court to impose a particular custodial |
| |
sentence in respect of an offence, it is not to be taken to prevent the court from |
| 40 |
including in its sentence for that offence any other authorised punishment. |
| |
(2) | In this section an “authorised punishment” means any punishment authorised |
| |
| |
| |
a service supervision and punishment order; |
| 45 |
| |
|
| |
|
| |
|
| |
a conditional or absolute discharge. |
| |
| |
264 | Dismissal: general restrictions |
| |
(1) | A court may not pass a sentence of dismissal or dismissal with disgrace in |
| 5 |
respect of an offence unless it is of the opinion that the offence, or the |
| |
combination of the offence and one or more offences associated with it, was |
| |
serious enough to warrant such a sentence. |
| |
(2) | In forming any such opinion as is mentioned in subsection (1), a court must |
| |
take into account all such information as is available to it about the |
| 10 |
circumstances of the offence and any associated offence, including any |
| |
aggravating or mitigating factors. |
| |
(3) | The Court Martial must not pass a sentence of dismissal or dismissal with |
| |
disgrace on an offender who is not legally represented in that court. |
| |
(4) | Subsection (3) does not apply if the offender, having been informed of his right |
| 15 |
to apply for legal representation and having had the opportunity to do so, |
| |
refused or failed to apply. |
| |
(5) | For the purposes of this section an offender is “legally represented” in the |
| |
Court Martial only if he has the assistance of counsel or a solicitor to represent |
| |
him in the proceedings in that court at some time after he is found guilty and |
| 20 |
| |
| |
265 | Financial statement orders |
| |
(1) | Before sentencing a person who has been convicted of a service offence, a court |
| |
may make a financial statement order; but this does not apply to the Summary |
| 25 |
| |
(2) | A financial statement order is an order requiring the person to give to the court, |
| |
within such period as may be specified in the order, such a statement of his |
| |
financial circumstances as the court may require. |
| |
(3) | A person who without reasonable excuse fails to comply with a financial |
| 30 |
statement order commits an offence and is liable to a fine not exceeding level 3 |
| |
| |
(4) | A person who in providing any statement in pursuance of a financial statement |
| |
| |
(a) | makes a statement which he knows to be false in a material particular, |
| 35 |
(b) | recklessly provides a statement which is false in a material particular, |
| |
| |
(c) | knowingly fails to disclose any material fact, |
| |
| commits an offence and is liable to a fine not exceeding level 4 on the standard |
| |
| 40 |
|
| |
|