Can I get a suspended prison sentence?
A suspended sentence is a term of imprisonment that is suspended, so that you do not go into custody immediately. You will not go into custody if you comply with the conditions attached.
Who can get a suspended sentence?
In the Magistrates’ Court, any sentence of 6 months’ imprisonment (12 months for two or more either-way offences) or less can be suspended. In the Crown Court, any sentence of 24 months or less can be suspended.
The minimum length of imprisonment for a suspended sentence is 14 days.
It follows, therefore, that if your offending warrants a sentence above the maximum level, or you are sentenced as a dangerous offender, you will not receive a suspended sentence.
This sentence is also not available for youths.
When can a sentence be suspended?
The sentencing court will first consider whether or not a custodial sentence should be imposed. In legal terms, this is whether the “custody threshold” has been passed.
If custody of one of the lengths discussed above is imposed, the Court can then move on to decide whether it can be suspended or not.
In considering whether the sentence can be suspended the Court will look at the particular circumstances of the offence and offender. The Judge will also consider the sentencing guideline that applies to this scenario.
Factors to consider would be whether there is a realistic prospect of rehabilitation, strong personal mitigation and the impact of immediate custody on others.
Mitigating against a suspension would be that the offender is a risk or danger to the public, the most appropriate punishment is immediate custody and a poor history of compliance with court orders.
How long can it be suspended for?
From six months up to two years (the ‘operational period’).
What conditions may be imposed?
A sentence is suspended on condition that you do not commit any further offences during the operational period. A straightforward order will only have this condition.
Additionally, you can have a suspended sentence order that is subject to further requirements. These will be similar to those in a community order. This can include unpaid work, a curfew and supervision with the Probation Service. If you are subject to such an order, it is also suspended on condition that you comply with the requirements imposed.
What happens if I breach a suspended sentence order?
You can breach an order by either committing an offence within the operational period or failing to comply with any requirements imposed.
The starting point for breach of an order is to activate the period of imprisonment. The length of imprisonment may be reduced to reflect the level of compliance with the order and any requirements. If it is unjust in the circumstances to activate the sentence the court has various options. You may be fined for the breach, given further or more onerous requirements, or the operational period may be extended.
If you do not comply with the requirements, you will be summonsed to attend court. If you commit a further offence, you will be arrested and charged, or interviewed under caution and summonsed. We can provide advice throughout the proceedings, from the police station, at court and for any breach proceedings.
How can we help?
If you would like to discuss any aspect of your case, please contact John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk
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GBH; Grievous bodily harm/wounding, with or without intent
In legal shorthand we often refer to section 18 or 20 GBH offences. These refer to specific offences under the Offences Against the Person Act 1861.
What is the difference between section 18 and section 20?
The most serious form of assault (short of attempted murder) is grievous bodily harm (GBH) or wounding.
When the offence is committed with the intention to cause GBH, it is an offence under section 18. The maximum sentence is life imprisonment. The same offence committed without intent (section 20) has a maximum sentence of 5 years.
For an offence to be committed unlawfully and maliciously, it means that there is no defence such as self-defence, force used for preventing crime, defence of property or another.
There are also some other technical differences between the two offences.
What is GBH?
GBH or grievous bodily harm is really serious bodily harm, so would include broken limbs for example. It can also include psychiatric injury.
What is wounding?
Wounding is where the skin is broken (either internally or externally).
Section 18, the intent offence
For the more serious offence, an intention to cause serious injury or wounding is required.
A jury needs to be satisfied that the offender intended to cause the harm, by considering all of the relevant circumstances. This will include what the offender did and what he said about it.
What about weapons?
The use of a weapon will make any offence more serious, and will often be evidence of an intent to cause GBH. Weapons include knives, bottles, throwing acid etc. Feet used to kick are also considered to be a weapon, and biting is also an aggravating feature.
Section 20, without intent
The difference between a Section 18 and a Section 20 offence is that for a Section 20 offence you did not intend to cause the injury. An example would be if you punched someone once and they fall causing a serious injury or wound.
Your lack of intent may be taken from the way in which the assault was committed or your behaviour at the time and immediately afterwards.
What sentence will I get?
For an offence with intent it is almost inevitable that a term of imprisonment will be imposed. The guidelines range from 3 years for a less serious offence through to 16 years for the more serious offences.
Examples of sentences imposed are nine years when a bottle was used to strike the face requiring thirty stitches; nine years also imposed for causing a fractured arm with a baseball bat, knocking down and driving over a police officer, kicks to the head on the floor causing extensive facial fractures.
For offences under section 20 the maximum sentence is 5 years, so a non-custodial sentence is more likely. The guidelines range from a community order to 4 years imprisonment.
How can we help?
The difference in sentencing for an offence without intent means that this issue has to be considered carefully in the context of all of the evidence.
We can advise you whether intent and other offence elements can be proven, and the prospects, if appropriate, of a plea to the lesser offence being acceptable to the prosecution and the court.
The law is complicated and the potential consequences severe. For expert advice, please contact John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk.
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Acid Attacks – New Laws in Force
After a recent spate of assaults involving the use of acids and other corrosive substances, the government has acted to try and curb their use. At the present time around 15 offences per week involve the use of acid and other like substances.
In January 2018, the Home Office announced a voluntary agreement with a number of major retailers in which they made commitments about the responsible sales of corrosive substances. This included not selling products containing the most harmful substances to under 18s. The agreement was developed with the British Retail Consortium and also tested with the Association of Convenience Stores and the British Independent Retailers Association, to ensure that the commitments were proportionate and worked in the retail environment.
The major retailers who have signed up to the commitments are: Wickes, Screwfix, B&Q, Wilko, Waitrose, John Lewis, Tesco, the Co-op, Morrisons, Aldi UK, Lakeland, Asda and Homebase.
Recent developments
On 1st November 2018 new legislation came in to force to further strengthen the controls against possessing corrosive substances.
There are controls in the Poisons Act 1972 on corrosive substances that can be used as poisons or as to make explosives.
Parliament has enacted a statutory instrument which makes sulphuric acid a regulated explosives precursor above a concentration level of 15%.
The effect of this will mean that members of the public will require a licence from the Home Office to be able to import, acquire, possess or use sulphuric acid.
What is the penalty for breaching this law?
If found guilty, the offence carries a maximum sentence of 2 years’ imprisonment.
How can we help?
The law is complicated and the potential consequences severe, for expert advice, please contact John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk.
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Benefit fraud offences
There are two main offences that are prosecuted in relation to benefit fraud, one involves dishonesty, the other does not.
The dishonesty offence
It is an offence to dishonestly make a representation in order to obtain benefits, for example not declaring that you are working or have savings. This includes a dishonest failure to promptly notify a change in circumstances, as well as making a claim that is dishonest at the start.
The offence without dishonesty
It is an offence to knowingly make a false statement to obtain benefit. Again, this can be in an initial claim for benefits or failing to give prompt notification of a change in circumstances.
What does this actually mean?
The following definitions are given:
- Dishonesty – has its normal meaning in criminal offences, although the lesser offence does not require dishonesty it does require proof of knowingly failing to notify. The test for dishonesty was recently revisited by the Supreme Court and the result may well be that it is now easier to prosecute for a dishonesty related offence.
- Change in circumstances – there must be proof that the offender knew there was a change of circumstances and that the change would have affected a change in benefit.
- Changes in circumstance could include starting to live with a partner, getting a job or a winning the lottery.
- Promptly notify- prompt is to be given its natural meaning and is a matter of fact. It is for the prosecution to prove that it was not prompt. It is therefore essential to explore all of the surrounding circumstances as this may provide a defence, not only mitigation.
Are there other offences?
There are other offences of fraud and false accounting related to benefits that are not covered in this article.
What is the likely sentence?
The non-dishonesty offence an only be dealt with in the Magistrates’ Court and carries a maximum term of imprisonment of 3 months.
The offence involving dishonesty can be dealt with at the Magistrates’ Court or the Crown Court and carries a maximum of seven years imprisonment.
The main factors for consideration in sentencing will be the length of time of the overpayment, the value of benefits overpaid, and whether or not the claim was dishonest from the outset.
A claim that is of high value, over a sustained period and which was dishonest from the beginning is more likely to attract a term of imprisonment.
How can we help?
An investigation into possible benefit fraud often starts with a letter asking you to attend for an interview under caution. The interview is very important; what you say in the interview can be used against you at Court, but it can also lead to an out of court disposal, such as a caution or an administrative penalty, or no action being taken against you. In many cases we are able to attend the interview with you.
You can find out more about how Camden Council deals with benefit fraud here.
What if I have to go to Court?
Prosecutions for benefit offences frequently generate vast quantities of paperwork. We have a great deal of experience in considering such evidence, and our involvement may mean a lesser value is given to the overpayment which can have a direct impact on the potential sentence.
We can also assess any possible defences that may be available to you. Expert advice is crucial if you would like to discuss any aspect of your case, please contact John Howey, on 020 7388 1658 or jhowey@jfhlaw.co.uk
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