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3.1 Until two decades ago sentencers in most countries enjoyed a wide discretion to impose whatever sentence they deemed appropriate, subject only to prescribed maximum penalties. Furthermore, in many states sentences for serious offences comprised indeterminate or partially indeterminate periods of custody the duration of which was determined by parole authorities. In some countries, for example in England, a ‘tariff’ was developed by the judiciary which broadly indicated a range of sentences for normal cases, defendants had a right of appeal where an excessive penalty beyond the tariff was imposed. In Australia the idea of a “tariff” was objectionable to judges in some states and sentencing was alleged to involve an intuitive synthesis.[40]
3.2 Internationally the existence of a sentencing discretion led to criticism similar to the criticism levelled against the approach followed in South Africa. Different sentences were imposed for different reasons without having to explain the sentence imposed by the court. Some sentences were imposed for deterrent reasons, others to rehabilitate offenders. Even the same judges were not consistent in sentencing. There was no agreement as to what criteria ought to be taken into account in the sentencing decision and what weight ought to be given to factors such as prior record, age, dangerousness, et cetera. The criticism of a lack of consistency was met with the response that sentences were individualized, they were tailored to meet the needs of the accused and therefore that consistency in sentencing was not to be expected. The result was predictable, widespread sentencing disparity with similar cases being treated differently.
3.3 Another feature of the sentencing practices was the development of the so-called exemplary sentences. This resulted in offenders receiving sentences in excess of those imposed on others committing similar crimes. There also a absence of “truth in sentencing” because offenders sent to prison were entitled to remission of sentence by parole boards. These disparities and inconsistencies were regarded unjust and unacceptable.
3.4 Furthermore, research evidence failed to demonstrate that individualized sentencing worked in terms of subsequent law abiding behaviour. Faith in the rehabilitative ideal was also undermined from the 1970's onwards and increasing knowledge of the extent of crime and the marginal inroads which policing and justice interventions made to detecting and punishing criminals, called into question the doctrine of deterrence.
3.5 In many jurisdictions concerns about the rising prison population fed a reformulation of opinion. In some states it was believed that imprisonment extensively used, can serve to control and reduce crime. In Australia, in both New South Wales and in Victoria, an administration came to power which perceived a rise in the prison population to be the inevitable consequence of their adopting tough law and order policies. However, at the same time these politicians encouraged more generous use of executive release. As a result disparities arose as to the sentences imposed and the sentences actually served. This development gave a renewed impetus towards “truth in sentencing”.
3.6 A combination of the factors outlined above provided fertile soil for the growth of the ‘justice’ or ‘just deserts’ movement. This meant that sentencing disparity had to be eliminated. This involved eliminating disproportionately long sentences, emphasising the need for truth in sentencing and that equal sentences had in practice to mean the same thing for different offenders. It was suggested that what was needed was a mechanism for ensuring that judicial discretion was controlled by forcing judges to sentence in accordance with agreed and objective standards of desert.
3.7 Thus, on the international scene, a number of factors - rising crime rates, prison crowding, fiscal crises, loss of faith in the treatment paradigm, concern that just deserts be delivered, the need for public protection against dangerous offenders - have in recent years sharpened the debate about sentencing policy.
3.8 With the incidence of violent crime continuing to rise and public demands for harsher and more certain punishment increasing, many countries are examining sentencing of offenders with the view of instituting reforms. These reforms are primarily a response to criticism of rehabilitation attempts, but they also seek to accomplish differing goals, including reducing disparity that results from discretionary sentencing, increasing sentencing fairness, establishing truth in sentencing and balancing sentencing policy with limited correctional resources.
3.9 Prior to 1972 the practice of sentencing convicted criminals in federal courts was rarely criticized. Although legislatures prescribed either maximum lengths or specific ranges for sentences the practice of sentencing was largely left to the discretion of federal judges. In fact there was a trend towards expanding judicial discretion in sentencing.
3.10 In 1972, District Court Judge MF Frankel sounded the alarm on the long established system of sentencing in the United States. He stated that the almost wholly unchecked and sweeping powers given to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law. According to Frankel the source of the problem was the practice of indeterminate sentencing in which judges sentenced convicted criminals to vaguely specified ranges of time (for example five to ten years) and the fact that an unaccountable Parole Commission determined when the sentence should expire.[41] He argued that the form of the sentence which judges imposed provided no check on arbitrary decision-making. As a result there was a wild array of sentencing judgments without any semblance of the consistency demanded by the ideal of justice. Frankel demanded that the legislature determine the value - laden issue of the basic purposes that punishment and sentencing should accomplish. He argued that, whatever individual preferences might be, it was for the legislature to decide and prescribe the legitimate bases for criminal sanctions. Therefore, once these issues of societal values were settled by the legislature, it would constrain the judiciary’s role to that of implementing the democratically determined policy.
3.11 Senator Edward Kennedy responded to Frankel’s call and three years after the initial call, Kennedy introduced his first sentencing reform Bill. Doubting the legitimacy of rehabilitation as a proper systematic rationale for sentencing, Kennedy propagated that the legislature should guide the judiciary in choosing a new rationale. A second notion underlying the sentencing reform was the problem of disparity in sentences and the underlying problem of persistence of discrimination in sentencing, most notably racial and class discrimination. These reform efforts resulted in the enactment of legislation which allowed the promulgation of the Federal Sentencing Guidelines in 1987.
3.12 Sentencing guidelines developed by an independent sentencing commission, have since the late 1970's, represented the dominant approach to sentencing reform in the United States. Many States have replaced the indeterminate sentencing with structured sentencing schemes such as determinate sentencing, mandatory minimum penalties, and sentencing guidelines.
3.13 The goals of structured sentencing are -
3.14 It was furthermore claimed that structured sentencing reforms could be used to deter potential offenders and incapacitate dangerous offenders and it could also be used to reduce the likelihood and length of imprisonment for the so-called non-dangerous offenders.
3.15 For the purpose of understanding these reforms it is necessary to have a clear understanding of certain definitions. The following terms are therefore explained:
Determinate sentencing: Sentences of incarceration in which an offender is given a fixed term that may be reduced by good time or earned time.
Indeterminate sentencing: Sentences in which an administrative agency, generally a parole board, has the authority to release an offender and determine whether an offender’s parole will be revoked for violations of conditions of release.
Mandatory minimum sentences: A minimum sentence that is specified by the State and that may be applied for all convictions of a particular crime with special circumstances, for example robbery with a fire-arm or selling drugs to a teenager within 1000 feet of a school.
Presumptive sentencing guidelines: Sentencing that meets the following conditions: (1) the appropriate sentence must be authorized by sentencing guidelines developed by a legislatively created body, usually a sentencing commission; (2) sentencing judges are expected to sentence within the range or provide written justification for departure from the range; (3) the guidelines must provide a mechanism for review of the departure. Presumptive guidelines may employ determinante or indeterminate sentencing structures.
Voluntary advisory sentencing guidelines: Recommended sentencing policies that are not required by law. They are usually based on past sentencing practices and serve as guide to judges. Legislation has not mandated their use. They may also employ determinate or indeterminate sentencing structures.
3.16 An unprecedented number of structured sentencing reforms have taken place over the past two decades in the United States of America. To date, 16 States and the Federal Government have implemented or are about to implement presumptive or advisory sentencing guidelines. Five states adopted determinate sentencing systems.
3.17 All states employ some version of mandatory minimum sentencing laws which target habitual offenders and the crimes of possessing a deadly weapon, driving under the influence of alcohol and possessing and distributing drugs.
3.18 In all the States where sentencing guidelines were adopted a sentencing commission was appointed with the mandate to develop sentencing guidelines. In the enabling legislation these commissions are required to meet the multiple goals of punishment, i.e just deserts, deterrence, incapacitation and rehabilitation. Of concern is the ability to individualize sentencing and to consider a wide range of sentencing purposes. Most States have attempted to control the individualization of judicial practices while maintaining that sentences should consider the full range of traditional sentencing purposes. In Pennsylvania, for example, judges are required to consider the offenders’ rehabilitive potential and community protection as well as the guidelines. In Washington the enabling legislation mandates that sentencing guidelines incorporate the goals of retribution, incapacitation, rehabilitation and frugal use of correctional resources.
3.19 It is claimed that under the system of sentencing guidelines repeat offenders and offenders convicted of violent crimes are much more likely to be imprisoned and thereby and serve longer prison terms. Conversely, first-time offenders charged with property crimes are less likely to be imprisoned.
3.20 It should be noted that the development of sentencing guidelines is a long and expensive process. Before guidelines can be developed, detailed data on current sentencing practices are obtained and analyzed and a simulation model is established for estimating the impact of the proposed guidelines on prison, parole, probation and jail populations,
3.21 In the USA the sentencing guidelines in Minnesota have been in effect the longest and have generated the most extensive body of sentencing data, case-law, amendments and evaluative literature and is therefore regarded to be the best model for reference.
3.22 In 1978 the Minnesota Sentencing Guideline Commission was created to develop sentencing guidelines. The new guidelines were to govern sentencing in all felony cases (crimes punishable by more than one year of imprisonment). The Commission had two specific directions, namely (1) to develop guidelines which were to specify presumptively correct prison-commitment and prison duration rules for each combination of appropriate offence and offender characteristics and (2) the Commission was to take previous sentencing practices and existing correctional resources into consideration. Furthermore, the enabling statute abolished parole and provided that the entire term of imprisonment must be served, subject only to limited reductions for good behaviour.
3.23 The Commission subsequently developed a set of guidelines centred around a sentencing grid (for an illustration see the table below). The two major determinants of the presumptive sentence are the severity of the most serious conviction offence and the defendant’s criminal - history score (based on prior felony convictions). These two factors place each defendant in one of the cells of the grid. The numbers in the cells represent the duration of the recommended prison sentence in months. The black line across the grid is the disposition line, in cells below this line, the guidelines recommend that the prison sentence be executed immediately. The single number at the top is the recommended best sentence, but a range is also provided within which the sentence could fall without being deemed a departure.
3.24 Above the disposition line, the guidelines generally recommend a stayed (suspended) prison sentence equal to the number of months shown in the cell. Such stayed sentence is normally accompanied by several conditions such as incarceration in a local jail for up to a year.
3.25 The prescribed sentence is presumed to be correct, but the court may depart form the recommendation if it finds that substantial and compelling circumstances call for a different sentence. In that case the judge must state reasons for departure from the sentence. If the accused goes to prison the term imposed will be reduced by a third for good behaviour. Thus a 36 - month guidelines sentence becomes a 24-month sentence.
The Minnesota Sentencing Grid - presumptive sentencing lengths in months
|
Severity levels of conviction offence
|
0
|
1
|
2
|
3
|
4
|
5
|
6 or more
|
|
Sale of a simulated I controlled substance
|
12ª
|
12ª
|
12ª
|
13
|
15
|
17
|
19
18-20
|
|
Theft-related crimes II
($2.500 or less)
Cheque forgery
|
12ª
|
12ª
|
13
|
15
|
17
|
19
|
21
20-22
|
|
Theft crimes III
($2.500 or less)
|
12ª
|
13
|
15
|
17
|
19
18-20
|
22
21-23
|
25
24-26
|
|
Non-residential IV burglary Theft crimes (over $2.500)
|
12ª
|
15
|
18
|
21
|
25
24-26
|
32
30-34
|
41
37-45
|
|
Residential burglary V
simple burglary
|
18
|
23
|
27
|
30
29-31
|
38
36-40
|
46
43-49
|
54
50-58
|
|
Criminal sexual VI conduct, 2nd degree (a) and (b)
|
21
|
26
|
30
|
34
33-35
|
44
42-46
|
54
50-58
|
65
60-70
|
|
Aggravated VII
robbery
|
48
44-52
|
58
54-62
|
68
64-72
|
78
74-82
|
88
84-92
|
98
94-102
|
108
104-112
|
|
Criminal sexual VIII conduct, 1st degree
Assault, 1st degree
|
86
81-91
|
98
93-103
|
110
105-115
|
122
117-127
|
134
129-139
|
146
141-151
|
158
153-163
|
|
Murder, 3rd degree IX Murder, 2nd degree
(felony murder)
|
150
144-156
|
165
159-171
|
180
174-186
|
195
189-201
|
210
204-216
|
225
219-231
|
240
234-246
|
|
Murder, 2nd degree X (with intent)
|
306
299-313
|
326
319-333
|
346
339-353
|
366
359-373
|
386
379-393
|
406
399-413
|
426
419-433
|
3.26 It is important to note that the presumptive sentences are almost entirely based on prior record and current offence severity (which research showed to be the two most important factors in previous judicial and parole decisions). The Commission stated that it adopted a sentencing theory of ‘Modified just deserts’. Thus retributive values were the primary determinant of the presumptive sentence and criminal history plays an important role.
3.27 A further important development was the fact that maximum penalties for violent crimes were raised in 1989 and again in 1992 after a round of public hysteria prompted by two highly publicized rape-murders. Drug penalties were also increased steadily and the legislature periodically displayed impatience with presumptive sentencing rules by creating or expanding statutes requiring a mandatory minimum prison term (eg for use of a dangerous weapon and for certain recidivists). Some of these statutes are truly mandatory - the court has no power to impose any lesser sentence, others have been interpreted merely to prescribe the minimum sentence if the court choose prison. An important development was that the guidelines enabling statute was amended in 1989 to specify that the Commission’s primary goal in setting guidelines should be public safety while correctional resources remain a factor but no longer a substantial consideration.
3.28 In 1984 Congress enacted sweeping and dramatic reforms of the federal sentencing practices through the passing of the Sentencing Reform Act. The Act was part of a comprehensive Crime Control Act the purpose of which was to address the problem of crime in society. The goals of the Sentencing Reform Act were to reduce disparity in sentencing, increase certainty and uniformity and to correct past patterns of undue leniency in sentencing.
3.29 To this end the United Stated Sentencing Commission was created with an overriding mandate to determine the appropriate type and length of sentences for each of the federal offences. At the same time parole was eliminated so that sentences announced would be sentences served. Discretion previously vested in the federal judiciary to set sentences were to be vastly curtailed by mandatory guidelines promulgated by the Commission. The first set of guidelines was implemented in January 1989.
3.30 The Sentencing Reform Act had clear goals and for the purpose of this paper it is deemed necessary to refer to the provisions dealing with the imposition of a sentence:
Section 3553 Imposition of a Sentence:
(a) Factors to be considered in imposing a sentence. The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed shall consider-
(1) The nature and circumstances of the offence and the history and characteristics of the defendant;
(2) The need for the sentence imposed -
(A) to reflect the seriousness of the offence, to promote respect for the law, and to provide just punishment for the offence;
(B) to afford adequate deterrence to criminal conduct:
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentence available;
(4) the kinds of sentence and sentencing range established ... (by the United States Sentencing Commission guideline)
(5) any pertinent policy statement issued by the Sentencing Commission ...
(6) the need to avoid unwarranted sentence disparity among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victim of the offence.
(b) The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing Guidelines, policy statements, and official commentary of the Sentencing Commission...
(e) Upon motion of the government, the court shall have the authority to impose a sentence below a level established by the statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offence. Such a sentence shall be imposed in accordance with the Guidelines and policy statement issued by the Sentencing Commission...
3582 (a) The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation ...
3.31 The sentencing guidelines drafted by the US Sentencing Commission seek to address the key aspects of the sentencing decision where unwarranted disparities were allowed in the past. To this end similar offences are grouped together and assigned the same offence level. Offence characteristics are considered to help determine the seriousness of the offence. Certain adjustments are allowed to gauge the offence seriousness and to allow for individualisation of punishment, for example the defendant’s role in the commission of the crime and his degree of culpability. The guidelines also credit a defendant who is truly remorseful. On the other hand the sentence is increased where the defendant has a significant record of prior criminal activity. The guidelines provide for a range of appropriate sentences within which the sentencer may consider factors such as family ties, community involvement and degree of sophistication. If the sentencing judge finds an unusual mitigating or aggravating circumstance not reflected in the guidelines he may depart form the prescribed sentencing range for valid reasons stated in open court and such decision is subject to review or appeal.
3.32 In the US Federal Code over 60 criminal statutes contain mandatory minimum sentences. However, only those related to drug offences and weapon offences account for the most convictions. In mandating minimum sentences one of the goals was to eliminate sentencing disparity for certain offences. Certain categories of offences were identified and Congress designated appropriate penalties below which defendants were not to be sentenced.
3.33 A number of reasons are advanced as justification for the enactment of mandatory minimum sentencing. These motivations include:
Retribution/Just deserts - In simple terms it is argued that the punishment should fit the severity of the crime.
Incapacitation - It is vital to make use of incapacitation of serious offenders to protect the community.
Disparity - Mandatory minimum sentences reduce unwarranted disparity in sentencing.
Inducement of cooperation - Mandatary minimums may help induce defendants to cooperate with authorities.
3.34 In the USA Congress persistently targeted drug related and violent crimes to receive mandatory minimum sentences. It was stated that there is a need for the continuation of the policy of punishment of a severe character as a deterrent to narcotic law violations. In order to define the gravity of that class of crimes, mandatory sentences were regarded as an essential element of the desired deterrents.
3.35 However, during 1991 the US Sentencing Commission was requested to examine the continued use of mandatory sentences.[43] After empirical research, the US Sentencing Commission concluded in its report that despite the expectation that mandatory minimum sentences would be applied to all cases that meet the statutory requirements, the available data suggested that it was not case. In a vast number of cases defendants were sentenced below the applicable statutory minimum, resulting in sentencing disparities. Mandatory minimum sentences were wholly dependent upon defendants being charged with and convicted of the specified offence under the mandatory minimum statute. To the extent that prosecutorial discretion was exercised with preference to some offences, and to the extent that some defendants were convicted of conduct carrying a mandatory minimum penalty while others who engage in similar conduct were not so convicted, the use of mandatory minimum penalties again introduced sentencing disparity.
3.36 In contrast the guidelines promulgated by the Sentencing Commission were regarded a self correcting and ever-improving system which reflected amendments to the guideline system in an iterative fashion. Therefore, amendments reflected changes in statutory maximums, directives received from Congress, empirical research on the effect of the guidelines, emergent case law, the changing nature of crime, changing priorities in prosecution and developments in knowledge about effective crime control. Mandatory penalties on the other hand were single-shot efforts at crime control intended to produce dramatic results but they lacked a built-in mechanism for evaluating their effectiveness and adjustment.
3.37 The Sentencing Commission concluded that the guideline system, because of its ability to accommodate the vast array of relevant offence-offender characteristics and because of its self-correcting potential, was regarded to be superior to the mandatory approach. The most efficient and effective way for Congress to exercise its powers to direct sentencing policy was therefore through the established process of sentencing guidelines.
3.38 Not only the Sentencing Commission but also the courts criticised mandatory sentences. In United States v Madkour[44] the court commented as follows on the sentencing practice of mandatory penalties:
This type of statute ... does not render justice. This type of statute denies the judges of this court and of all courts, the right to bring their conscience, experience, discretion and sense of what is right into sentencing procedure, and it, in effect, makes a judge a computer, automatically imposing sentences without regard to what is right and just. It violates the rights of the judiciary and of the defendants, and jeopardizes the judicial system.
3.39 In a referendum in 1993 voters in the state of Washington approved a proposition calling for the introduction of a “three strikes and you’re out” law, that is, a law imposing mandatory life sentences on offenders with two previous felony convictions who are subsequently convicted of a third felony. The law was duly passed and subsequently several other states considered and in some instances adopted similar laws. The Federal Violent Crime Control and Law Emforcement Act of 1994 also contains a three strikes provision. Over the past few years such legislation gained widespread acceptance in the United States as a means of combatting serious crime.
3.40 In 1994 the California legislature responded to public pressure to enact legislation that would mandate longer sentences for recidivists by approving the “Jones-Costa Three Strikes Bill”.[45] This Bill has been an influentialis an example of “Three Strikes” legislation. For first time felony offenders the statute leaves in tact the sentencing guidelines, for second time offenders the new law doubles the minimum required sentence. The centrepiece of the legislation is, however, its “Three Strikes” provision which mandates that state courts sentence to an “indeterminate term of life imprisonment” those individuals previously convicted for two or more serious and/or violent felonies. Section 667 (e)(2)(A) of the California Penal Code reads as follows:[46]
If a defendant has two or more prior felony convictions ... that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the state prison for 25 years. (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under [Section 1170], or any period prescribed by Section 190 or 3046.
3.41 Three Strikes legislation has been criticised on a number of grounds. The California legislation has been criticised for being over-inclusive as it extends its reach to non- violent offences by treating property crimes in the same way as violent crimes. It is also criticised as an imprecise method of incapacitating truly dangerous criminals because a two-time cheque forger caught committing a non-violent residential burglary must, under the Act, receive a life term in prison. It is argued that it does not promote long term crime prevention since it fails to address the socio-economic roots of the crime problem and it places a huge financial burden on the taxpayers because it increases the number of years that convicts will have to spend in prison.
3.42 Judges are frustrated because the mandatory nature of the law means that they have to impose a sentence which they may not regard as just in the particular circumstances. For prosecutors the law removes the ability to offer a shorter sentence as an incentive for a plea of guilty to a lesser offence and thus impedes the efficient disposal of cases through plea bargaining. From the defendants’ point of view the fact that they cannot expect a lesser sentence in exchange for a plea of guilty encourages such offenders to take their chances in court in an attempt to avoid life imprisonment. In Washington the legislation has increased the incidence of resistence to arrest as offenders seek to avoid the inevitable life imprisonment. The result is an increase in the human and financial costs of law enforcement. Because of their inflexibility, such laws sometimes result in the imposition of sentences in individual cases which everyone involved believes to be unjustly severe. Furthermore, they encourage hypocrisy on the part of prosecutors and judges, since officials engage in adaptive responses and circumventions to avoid injustices, for example, in plea bargaining armed robbery is reduced to robbery or aggravated assault to assault. When judges and prosecutors engage in circumventions to sidestep mandatory sentences, important values are being sacrificed. In a sense such practices are dishonest and they undermine the integrity of the judicial system.
3.43 In Sweden new provisions covering the determination of sanctions i.e choice of sanction and determination of punishment were introduced into the Penal Code’s provisions on January 1 1989 with the aim of increasing the predictability and consistency of penal decision-making.[47] In terms of these provisions the punishment is determined by-the penal value attributed to the offence which requires special consideration to be given to the harm, wrong or danger occasioned by the criminal act, what the offender realised or ought to have realised about it, as well as his intentions or motives. A number of aggravating circumstances are provided, for example whether the offender exploited some other persons’ vulnerability. Special consideration must also be given to a number of mitigating circumstances in assessing the penal value. Guidance is also given on the impact of previous criminality and factors over and above the penal value of the crime to which the court may give consideration. Imprisonment is used where the penal value is high and when the offender’s previous record is such that it precludes consideration any other sentence.
3.44 For the purpose of this paper the relevant provisions are quoted in some detail:[48]
Section 1
The punishment shall be imposed within the statutory limits according to the penal value of the crime or crimes, and the interest of uniformity in sentencing shall be taken into consideration.
The penal value is determined with special regard to the harm, offence, or risk which the conduct involved, what the accused realized or should have realized about it, and the intentions and motives of the accused.
Section 2
Apart from circumstances specific to particular types of crime, the following circumstances, especially, shall be deemed to enhance the penal value:
1. whether the accused intended that the criminal conduct should have considerably worse consequences than it in fact had;
2. whether the accused has shown a special degree of indifference to the adverse consequences of the offence;
3. whether the accused made use of the victim’s vulnerable position, or his other special difficulties in protecting himself;
4. whether the accused grossly abused his rank or position or grossly abused a special trust;
5. whether the accused induced another person to participate in the deed through force, deceit, or abuse of the latter’s youthfulness, lack of understanding, or dependent position; or
6. whether the criminal conduct was part of criminal activity that was especially carefully planned, or that was executed on an especially large scale and in which the accused played an important role.
Section 3
Apart from what is elsewhere specifically prescribed, the following circumstances, especially, shall be deemed to diminish the penal value:
1. whether the crime was provoked by another’s grossly offensive behaviour;
2. whether the accused, because of mental abnormality or strong emotional inducement or other cause, had a reduced capacity to control his behaviour;
3. whether the accused’s conduct was connected with his manifest lack of development, experience, or capacity for judgment; or
4. whether strong human compassion led to the crime.
The court may sentence below the statutory minimum when the penal value obviously calls for it.
Section 4
Apart from the penal value, the court shall in measuring the punishment, to a reasonable extent take the accused’s previous criminality into account, but only if this has not been appropriately done in the choice of sanction or revocation of parole. In such cases, the extent of previous criminality and the time that has passed between the crimes shall be especially considered, as well as whether the previous and the new criminality is similar, or whether the criminality in both cases is especially serious.
Section 5
In determining the punishment, the court shall to a reasonable extent, apart from the penal value, consider:
1. whether the accused as a consequence of the crime has suffered serious bodily harm;
2. whether the accused, according to his ability, has tried to prevent, or repair, or mitigate the harmful consequences of the crime;
3. whether the accused voluntarily gave himself up;
4. whether the accused is, to his detriment, expelled from the country in consequence of the crime;
5. whether the accused as a consequence of the crime has experienced or is likely to experience discharge from employment or other disability or extraordinary difficulty in the performance of his work or trade;
6. whether a punishment imposed according to the crime’s penal value would affect the accused unreasonably severely, due to advanced age or bad health;
7. whether, considering the nature of the crime, an unusually long time has elapsed since the commission of the crime; or
8. whether there are other circumstances that call for a lesser punishment than the penal value indicates.
If, in such cases, special reasons so indicate, the punishment may be reduced below the statutory minimum.
Section 6
The sanction is to be remitted entirely when, with regard to circumstances of the kind mentioned in section 5, imposing of a sanction is manifestly unreasonable.
Section 7
If someone has committed a crime before the age of 21, his youth shall be considered separately in the determination of the punishment, and the statutory minimum may be disregarded. Life imprisonment is never to be imposed in such cases.
3.45 The Greek Penal Code (Chapter 16) details a considerable number of offences classed as Bodily Injury viz. Article 308, Simple Bodily Injury; Article 309, Grievous Bodily Injury; Article 310, Severe Bodily Injury; Article 311, Deadly Injury (i.e bodily injury causing death); Article 312, Bodily Injury of Minors; Article 313, Brawling; Article 314, Negligent Bodily Injury. Guidance is given as to the meaning of severe illness to the mind or body of the victim which constitutes the offence of Severe Bodily Injury under Article 310 i.e it exists if, as a result of the offence, the victim is in danger of his life or contracts a severe and lengthy illness or is seriously mutilated or in any way prevented from using his mind or body for a long period of time and to a serious extent.
3.46 The Penal Code also details several articles dealing with how the court should fix a sentence within the parameters identified by the Code. Article 79 of the Penal Code (Judicial Computation of Punishment) provides that the court, when fixing sentence, must in determining the nature of the offence consider:
(a) the injury resulting or the danger presented;
(b) the quality, type and purpose of the offence as well as circumstances attending its preparation or commission; and
(c) the extent of intent or degree of negligence of the offender.
3.47 The court must also give reasons justifying the imposed punishment. These are particularly important and their absence may theoretically result in a successful appeal to the Supreme Court. In practice the Supreme Court has held that general reference to the appropriate legal terminology is sufficient without any specific reference to particular circumstances. Greek provisions do not attempt to detail specific guidance on degrees of seriousness within offence categories which can be directly related to sentencing provisions. Calculation of punishment is confined to issues which are dealt with in England in the context of the Court of Appeal’s sentencing principles. One important goal of Greek criminal policy during recent years has a direct bearing on sentencing violent offenders. This is to expand the alternatives to prison in common with most Western European countries. Non-custodial penalties are not expressly provided by the Greek Penal Code although a number of unrelated alternatives are mentioned. Hence, for less serious offences (petty violations) resulting in custody, Article 82 provides that all custodial sentences not exceeding 6 months will as a rule be converted into pecuniary penalties. The court must give specific reasons for its decision and must take into account the financial circumstances of the offender when setting the specific pecuniary penalty. However, non-custodial sanctions are not available for felonies and most misdemeanours, but, if the imposed sentence for any offence i.e the sentence fixed following mitigation, does not exceed 18 months imprisonment conversion is possible.
3.48 The German Penal Code (GFR, Section 17) distinguishes a number of offences according to their relative seriousness (viz. paragraph 223) for example bodily harm (paragraph 223a), dangerous bodily harm (paragraph 224), aggravated bodily harm (paragraph 225), intentional aggravated bodily harm (paragraph 230) and negligent bodily harm. Dangerous bodily harm involves the use of a weapon, or sneak attack, or action by several persons acting in concert, or by life endangering act. The possible use of a weapon is also contemplated by the English offence of malicious wounding and inflicting grievous bodily harm under section 20 of the Offences against the Persons Act (1861), although no guidance is provided as to what constitutes grievous bodily harm. Paragraph 225 of the Penal Code states that aggravated assault is committed if the victim suffers loss of an important part of his body, sight in one or both eyes, hearing, speech or his procreative capacity, or the assault results in a serious permanent deformity or deteriorates into invalidity, paralysis or mental illness.
3.49 Judicial sentencing is circumscribed by legislative scaling of penalties which provides for cases which differ in gravity from the average type of offence and do not fit within the normal levels provided. In such cases judges may evaluate aggravating or mitigating circumstances according to guideline examples or exercise complete discretion if necessary. As Huber (1982: 21) argues-
“this statute therefore ensures through careful gradation of the different forms of commission of the offence that a certain uniformity is achieved in sentencing and, at the same time, that the judge retains his discretion to consider the actual case under trial with regard to individuality of the act and the actor.”
3.50 There is still, however, considerable scope for judicial discretion in fixing the actual prescribed sanction within the upper and lower limits although the Penal Code provides explicit principles for determination of punishment in paragraph 46. Apart from stating in paragraph 46(1) that the foundation of punishment is guilt and that the judge must consider the effects of the punishment on the offender’s future life, many factors circumscribe how the nature and extent of any penalty is decided with reference to the purpose of punishment in the individual case.
3.51 The principles of punishment in paragraph 46 state that all the circumstances, both mitigating and aggravating, must be taken into account by examining certain listed factors. For example, the motives and aims of the offender, the manner of perpetration and the wrongfully caused effects of the act, the offender’s conduct after the crime are cited as relevant. It is significant that paragraph 46(3) specifically states that circumstances which already represent the statutory constituent elements of the crime may not be taken into account. Mitigation rules are presented in paragraph 49 which provide margins for replacing the sanction originally imposed.
3.52 Sentencing law in England is complex and maximum penalties for criminal offences are scattered among a large number of criminal statutes dating back in some cases to 1861. It is generally criticised for its lack of any logical structure or coherence in their arrangement. It has been the habit of Parliament to change maximum penalties for individual offences in a piecemeal manner, usually by increasing them in response to a particular clamour. This resulted in a number of anomalies, for example a man who fondles the breasts of a 15 year-old girl with her consent commits indecent assault punishable with ten years imprisonment. If he goes further and has sexual intercourse with her consent, he is guilty of unlawful sexual intercourse, an offence punishable with a maximum of two years imprisonment.
3.53 A piecemeal approach to law reform in respect of sentencing has characterised English sentencing legislation. It has resulted in a maze of statutory provisions spread among a large number of statutes, many of which were amended so frequently that they bear little or no relationship to the provision enacted originally. Establishing the law that should be applied in a particular case is accordingly very difficult and this is complicated by the fact that statutory provisions are frequently enacted, but not brought into force.
3.54 The Criminal Justice Act, 1991 provided for the first time in England and Wales a reasonably coherent statutory framework for the selection of financial, community and custodial sentences. In line with the White Paper, Crime Justice and Protecting the Public,[51] the sentencing principles in the Act are primarily based on just deserts while other traditional sentencing objectives such as deterrence, rehabilitation and incapacitation are given less prominence.
3.55 In the White Paper which preceded the Act it was explicitly stated that the severity of the sentence should be directly related to the seriousness of the offence. However, this principle was abandoned in the case of violent offenders posing a threat to public safety in favour of protective sentencing. The main objective of sentencing was to express the principles of denunciation and retribution.
3.56 The criteria for the imposition of a custodial sentence and for determining its length are set out in the Act. A court is allowed to impose a custodial sentence only if the offence committed by the offender, considered in isolation or in combination with other offences, is so serious that only a custodial sentence can be justified for the offence. No definition or explanation of seriousness is provided, but it is stated that in assessing the seriousness of an offence, a court may have regard only to the circumstances of the offence and in particular that previous convictions and the offender’s response to previous sentences must be disregarded for this purpose.[52]
3.57 In determining the length of a custodial sentence the court is to impose a sentence which is commensurate with the seriousness of all the offences for which the offender is being sentenced[53], again, previous conviction are to be disregarded in assessing the seriousness of the offences. In relation to the imposition of a custodial sentence, and the determination of the length of a custodial sentence, the court is allowed to take account of aggravating factors of an offence disclosed by the circumstances of other offences committed by the offender. Courts are allowed to mitigate a sentence by reference to any factors which are considered relevant in mitigation.[54]
3.58 Corresponding rules were enacted to govern the imposition of community orders. A unit fine system was enacted so as to apply to the magistrates’ courts only. In determining the amount of a fine in all but a few exceptional cases, the court is required to determine the number of units which is commensurate with the seriousness of the offence or offences and then calculate the value of the unit in the case of defendant. The unit represents the offender’s weekly disposable income: it would be at least £4 in the case of an adult and never more that £100.
3.59 In 1996 a new White Paper on sentencing reform titled Protecting the Public: The Governments Strategy on Crime in England and Wales[55] was published. The White Paper contains far reaching proposals in respect of sentencing. The White Paper proposed the abolition of parole and proposes that any term of imprisonment imposed by the court should be served in full. However, for the first 12 months of a sentence, or all of a sentence of less than 12 months, a prisoner would be able to earn a small discount of six days a month by co-operation with the prison authorities. Furthermore, it is proposed that as a matter of general principle a sentencer should not have regard to the possibility of releases when determining the length of a fixed term of imprisonment.
3.60 The White Paper contains a number of proposals on mandatory sentences. It is, for example, proposed that serious violent and sexual offenders convicted a second time would automatically receive a life sentence, with the tariff fixed by the judge. The tariff would be based on objectives of retribution and deterrence, and release would be permitted only when the offender is no longer considered to be a risk to the public. Furthermore it is proposed that previous convictions for relevant offences will count as qualifying convictions, including convictions as a young offender. The second offence must be committed after the commencement of the new legislation and after he/she has been convicted of a previous qualifying offence. The proposals, however, fail to delineate the distinctions of gravity. In exceptional cases the courts will have a discretion not to pass an automatic life sentence. This is intended to allow for the occasional unforeseen circumstances where it would be unjust and unnecessary to impose the life sentence.
3.61 The White Paper also proposes a mandatory minimum sentence for drug dealers. The mandatory minimum sentence of seven years imprisonment is reached where the third qualifying conviction is reached. Qualifying convictions include any previous convictions for relevant offences and these must relate to separate court appearances. As with automatic life sentences the mandatory sentence might be avoided in genuinely exceptional cases. Further repetition following a mandatory sentence would result in a further mandatory sentence, although the proposals fall short of prescribing a higher mandatory sentence in such circumstances.[56] These proposals for mandatory sentences have been highly controversial and have been severely criticised by the judiciary in particular.
3.62 Mandatory minimum prison sentences are also proposed for persistent repeat burglars. The relevant offences are burglary or aggravated burglary of a dwelling. The mandatory minimum of three years imprisonment can only be imposed where the three qualifying convictions all relate to offences after the commencement of the Act. Again, the court is given the discretion not to impose the mandatory sentence in genuinely exceptional cases.
3.63 In 1987 the Canadian Sentencing Commission[57] investigated the process of sentencing and recommended that the following principles should govern sentencing practices in Canada:
4. Principles of Sentencing
Subject to the limitations prescribed by this or any other Act of Parliament, the sentence to be imposed on an offender in a particular case is at the discretion of the court which, in recognition of the inherent limitations on the effectiveness of sanctions and the practical constraints militating against the indiscriminate selection of sanction, shall exercise its discretion assiduously in accordance with the following principles:
(a) The paramount principle governing the determination of a sentence is that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender for the offence.
(b) Second, the emphasis being on the accountability of the offender rather than punishment, a sentence should be the least onerous sanction appropriate in the circumstances and the maximum penalty prescribed for an offence should be imposed only in the most serious cases.
(c) Subject to paragraphs (a) and (b) the court in determining the sentence to be imposed on an offender shall further consider the following:
(i) any relevant aggravating and mitigating circumstances;
(ii) a sentence should be consistent with sentences imposed on other offenders for similar offences committed in similar circumstances;
(iii) the nature and combined duration of the sentence and any other sentences imposed on the offender should not be excessive;
(iv) a term of imprisonment should not be imposed, or its duration determined, solely for the purpose of rehabilitation;
(v) a term of imprisonment should be imposed only:
(aa)to protect the public from crimes of violence,
(bb)where any other sanction would not sufficiently reflect the gravity of the offence or the repetitive nature of the criminal conduct of an offender, or adequately protect the public or the integrity of the administration justice,
(cc)to penalize an offender for wilful non-compliance with the terms of any other sentence that has been imposed on the offender where no other sanction appears adequate to compel compliance.
(d) In applying the principles contained in paragraphs (a), (b), and (c), the court may give consideration to any one or more of the following:
(i) denouncing blameworthy behaviour;
(ii) deterring the offender and other persons from committing offences;
(iii) separating offenders from society, where necessary;
(iv) providing for redress for the harm done to individual victims or to the community;
(v) promoting a sense of responsibility on the part of offenders and providing for opportunities to assist in their rehabilitation as productive and law-abiding members of society.
3.64 With regard to mitigating and aggravating factors the Commission recommended the following:[58]
11.8 The Commission recommends that the following list of aggravating and mitigating factors be adopted as the primary grounds to justify departures from the guidelines:
Aggravating factors
1. Presence of actual or threatened violence or the actual use or possession of a weapon, or imitation thereof.
2. Existence of previous convictions.
3. Manifestation of excessive cruelty towards victim.
4. Vulnerability of the victim due, for example, to age or infirmity.
5. Evidence that a victim’s access to the judicial process was impeded.
6. Existence of multiple victims or multiple incidents.
7. Existence of substantial economic loss.
8. Evidence of breach of trust (e.g., embezzlement by bank officer).
9. Evidence of planned or organized criminal activity.
Mitigating Factors
1. Absence of previous convictions.
2. Evidence of physical or mental impairment of offender.
3. The offender was young or elderly.
4. Evidence that the offender was under duress.
5. Evidence of provocation by the victim.
6. Evidence that restitution or compensation was made by the offender.
7. Evidence that the offender played a relatively minor role in the offence.
3.65 The Commission also recommended the adoption of sentencing guidelines and amending the Criminal Code to grant to the Courts of Appeal the power to establish sentencing policy governing the application of sentencing guidelines. It was furthermore proposed that judges be required to give written reasons if a sentence which departs from the guidelines, is imposed. As point of departure four presumptions are used to guide the imposition of custodial and non-custodial sentences; they are:[59]
3.66 The Commission conceded that sentencing guidelines can take many forms and be implemented in varied ways. The Commission recommended presumptive guidelines which would be statutory in nature, but which would not be mandatory in the sense that the sentencing judge would have the discretion to deviate from the adopted range in appropriate cases. Presumptive guidance is in effect statutory orders which impose a predetermined sentence range to the judge. A system of guidelines present the court with an approach based on general sentencing practices and trends in an attempt to assist in identifying the factors most relevant to the case. (The proposals of the Commission were much debated in Cananda but never enacted).
3.67 The Commission also considered the continued existence of mandatory minimum sentences and concluded that, with the exception of those prescribed for murder and high treason, minimum penalties serve no purpose that can compensate for the disadvantages resulting from their continued existence. The Commission raised two important constitutional considerations against the continued existence of mandatory sentences, namely the concern that the imposition of a mandatory sentence of imprisonment may constitute “cruel and unusual punishment” and that they authorise “arbitrary” imprisonment.
3.68 Both these objections raise the issue of the constitutionability of mandatory sentences. The Canadian Charter (section 12) stipulates that “everyone has the right not to be subjected to cruel and unusual treatment or punishment”. In terms of section 5(2) of the Narcotic Control Act the prescribed sentence for importing any narcotic into Canada is “imprisonment for life but not less than seven years”. In R v Smith[60] five of the six supreme court judges held that the mandatory minimum sentence offends section 12 (and is not saved by section 1, the limitation clause).
3.69 The court held that, though a state may impose punishment (minimum or maximum), “the effect of that punishment must not be grossly disproportionate to what would have been appropriate”.[61] The test is “whether the punishment prescribed is so excessive as to outrage standards of decency”. Such punishment will have one or more of the following features:
(1) The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity;
(2) The punishment goes beyond what is necessary for the achievement of a valid social aim ...; or
(3) The punishment is arbitrarily imposed.”[62]
3.70 Though section 12 may be infringed, section 1 could “salvage” it if some “important societal objective” will be achieved. In casu, the court fails the “proportionality test because the means chosen to achieve the object is disproportionate. The impairment of rights is not a “minimum” one, but its “indiscriminate nature” casts its net too wide: sentencing the “small offender” to seven years imprisonment in all cases is not necessary to deter the serious offender.
3.71 After careful consideration the Canadian Commission recommended the abolition of mandatory minimum penalties for all offences except murder and high treason.
[40] C Clarkson, R Morgan The Politics of Sentencing Reform Clarendon Press: Oxford 1995 at 4.
[41] M A Adams “The Federal Sentencing Guidelines as Legal Process Jurisprudence” American Criminal Law Review Vol 31 259 at 262.
[42] R S Frase “Sentencing Guidelines in Minnesota and other American States: A Progress Report” in The Politics of Sentencing Reform 1995 169 et seq.
[43] United States Sentencing Commission Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 1991.
[44] 930 F. zd 234 (2d Cir. 1991).
[45] See “Recent Legislation” Harvard Law Review Vol 107:2123.
[46] SeeHarvard Law Review 2124.
[47] See R Henham “The European Context of Sentencing Violent Offenders” International Journal of Sociology of Law 1993 Vol 21 265 -280; Nils Jareborg “The Swedish Sentencing Reform” in The Politics of Sentencing Reform edited by C Clarkson and R Morgan Clarenden Press: Oxford 1995.
[48] Nils Jareborg “The Swedish Sentencing Reform” 101 etcetera.
[49] R Henham “The European Context of Sentencing Violent offenders” International Journal of the Sociology of Law 1993 Vol 21 265 at 274 - 276.
[50] Op cit 276.
[51] Cm 965, 1990 HMSO.
[52] See sections 3(3) and 29(1).
[53] See section 2(2)(a).
[54] See section 28.
[55] Cm 3190 London: HMSO, 1996.
[56] See R Henham “Back to the Future on Sentencing: The 1996 White Paper” The Modern Law Review Vol 59 November 1996 861 et seq.
[57] Canadian Sentencing Commission Sentencing Reform: A Canadian Approach February 1987 at 154-155.
[58] At 320.
[59] At 329.
[60] 1987 1 SCR 1045.
[61] 1072.
[62] 1097-98.
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