ChatterBank3 mins ago
revoking referral order
My 17 year old son was given a 12 month referral order in Dec 07 for ABH. This was very harsh considering the circumstances. He did intend to go not guilty right up until the last minute on the grounds of self defence, but he was told if he went guilty he could get a referral order and if he stayed out of trouble it would be spent at the end of it. So, he intended to stay out of trouble and took this option. He has now been to 1 meeting and signed contract. However last weekend he got very drunk, swore at a police officer and was arrested for Public order sec 5 and possession of cannabis (tiny amount).
Now the youth team and solicitor say that the ref order must be revoked and he must be resentenced for original offence aswell. I have read all about referral orders and can clearly see that that is the case and that he does not appear to be eligible for an extension.
I am desparate to try and find a way of him either keeping the referral order or not taking that 'step up the ladder' to action plan or supervision over such a trivial thing as sec5 and possession. He will then have a record for some time after the order.
Does anybody have any ideas.
Has it ever been known to revoke a ref order but then re-sentence to another 1?
Could they fine him and still keep the referral order in place?
I know all the stuff I have read on internet seems to say this is not possible, but there are often exeptions if you look for them, can anyone help?
Thank you.
Now the youth team and solicitor say that the ref order must be revoked and he must be resentenced for original offence aswell. I have read all about referral orders and can clearly see that that is the case and that he does not appear to be eligible for an extension.
I am desparate to try and find a way of him either keeping the referral order or not taking that 'step up the ladder' to action plan or supervision over such a trivial thing as sec5 and possession. He will then have a record for some time after the order.
Does anybody have any ideas.
Has it ever been known to revoke a ref order but then re-sentence to another 1?
Could they fine him and still keep the referral order in place?
I know all the stuff I have read on internet seems to say this is not possible, but there are often exeptions if you look for them, can anyone help?
Thank you.
Answers
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(2-part post):
The court's hands seem to be tied. Normally, the court has the power to extend a referral order if
(a) the offender had never been sentenced by a court prior to the referral order being made (i.e. he was a first time offender); and
(b) the court is "satisfied, on the basis of a report made to it by the relevant body, that there are exceptional circumstances which indicate that, even though the offender has re-offended since being referred to the panel, extending his compliance period is likely to help prevent further re-offending by him"
(See paragraphs 11(a) and all of 12, in the link below).
However, paragraph 13 states this:
"An order under paragraph 11 or 12 above, or two or more orders under one or other of those paragraphs made in respect of connected offences, must not so extend the offender�s compliance period as to cause it to exceed twelve months"
The court's hands seem to be tied. Normally, the court has the power to extend a referral order if
(a) the offender had never been sentenced by a court prior to the referral order being made (i.e. he was a first time offender); and
(b) the court is "satisfied, on the basis of a report made to it by the relevant body, that there are exceptional circumstances which indicate that, even though the offender has re-offended since being referred to the panel, extending his compliance period is likely to help prevent further re-offending by him"
(See paragraphs 11(a) and all of 12, in the link below).
However, paragraph 13 states this:
"An order under paragraph 11 or 12 above, or two or more orders under one or other of those paragraphs made in respect of connected offences, must not so extend the offender�s compliance period as to cause it to exceed twelve months"
Since your son's referral order is already for 12 months, it would seem that the court can't exercise its powers under the 'exceptional circumstances' provisions of paragraph 12 to extend the existing order, neither can it add a further order onto the end of the existing one.
So it would appear that the provisions of paragraph 14 must apply, which gives the court no choice other than to revoke the referral order and (assuming that they deem sub-paragraph 3 to be relevant) to re-sentence your son for ABH, together with sentencing him for the more recent offences.
Unlike any other web pages you may have read, this link takes you to the legislation which defines exactly what a court may or may not do. I regret that it doesn't seem to provide the answer you were hoping for, but at least you'll know how the law stands:
http://www.statutelaw.gov.uk/content.aspx?LegT ype=All+Legislation&title=Powers+of+Criminal+C ourts+(Sentencing)+Act&Year=2000&searchEnacted =0&extentMatchOnly=0&confersPower=0&blanketAme ndment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavF rom=0&parentActiveTextDocId=2138843&ActiveText DocId=2139115&filesize=392
Chris
So it would appear that the provisions of paragraph 14 must apply, which gives the court no choice other than to revoke the referral order and (assuming that they deem sub-paragraph 3 to be relevant) to re-sentence your son for ABH, together with sentencing him for the more recent offences.
Unlike any other web pages you may have read, this link takes you to the legislation which defines exactly what a court may or may not do. I regret that it doesn't seem to provide the answer you were hoping for, but at least you'll know how the law stands:
http://www.statutelaw.gov.uk/content.aspx?LegT ype=All+Legislation&title=Powers+of+Criminal+C ourts+(Sentencing)+Act&Year=2000&searchEnacted =0&extentMatchOnly=0&confersPower=0&blanketAme ndment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavF rom=0&parentActiveTextDocId=2138843&ActiveText DocId=2139115&filesize=392
Chris
Thankyou very much for taking the time and trouble to answer my question. I have read the article and it doesn't seem there is any other way than to revoke.
Although it says the courts MAY sentence for the original offence. Does that mean they could revoke the ref order, sentence for the existing offence (sec5 & possession) and NOT resentence for ABH? Can't realistically see that happening but is that what the law is actually stating and can you think of any grounds why we should argue that this should happen. A 12 month ref order was very steep considering the circumstances and apparently he was in front of a very strict district judge that day.
Is it too late to appeal the sentence? Because if we did and he got a lesser time ref order it could be added to. But then don't we run the risk of them sending him to custody?
We do have the duty solicitor that my son called from the police station working for us, but I always feel that they are dealing with so many people in court in 1 day that you are not getting a very personal service. It is not very easy to change solicitors now, once you have appointed one in the police station I believe.
Thanks again.
Tara
Although it says the courts MAY sentence for the original offence. Does that mean they could revoke the ref order, sentence for the existing offence (sec5 & possession) and NOT resentence for ABH? Can't realistically see that happening but is that what the law is actually stating and can you think of any grounds why we should argue that this should happen. A 12 month ref order was very steep considering the circumstances and apparently he was in front of a very strict district judge that day.
Is it too late to appeal the sentence? Because if we did and he got a lesser time ref order it could be added to. But then don't we run the risk of them sending him to custody?
We do have the duty solicitor that my son called from the police station working for us, but I always feel that they are dealing with so many people in court in 1 day that you are not getting a very personal service. It is not very easy to change solicitors now, once you have appointed one in the police station I believe.
Thanks again.
Tara
. . .and thank you for taking the time to acknowledge my post.
I suspect that the reason that a court is not automatically obliged to re-sentence an offender is because some offenders might commit their second offence right at the end of the their referral order. If, for example, your son had committed his recent offences in November 2008 the court might well have decided that there was no need to impose further punishment in respect of the ABH. However, with the conviction for ABH being so recent, I can't see anyway that they could realistically avoid re-sentencing.
I wouldn't worry too much. Although the court seems to be obliged to re-sentence your son, it's highly unlikely that they'd even consider a custodial sentence. He'll probably just end up with another community punishment.
Chris
I suspect that the reason that a court is not automatically obliged to re-sentence an offender is because some offenders might commit their second offence right at the end of the their referral order. If, for example, your son had committed his recent offences in November 2008 the court might well have decided that there was no need to impose further punishment in respect of the ABH. However, with the conviction for ABH being so recent, I can't see anyway that they could realistically avoid re-sentencing.
I wouldn't worry too much. Although the court seems to be obliged to re-sentence your son, it's highly unlikely that they'd even consider a custodial sentence. He'll probably just end up with another community punishment.
Chris
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