The Significance of Qualitative Classification of Sentencing Determinants

 The main purpose of qualitative classification of sentencing determinants is to define the basic characteristic of various sentencing determinants (conduct determinant, actor/etc. determinant), the weight of liability (aggravating factor, mitigating factor), and its degree (special sentencing determinant, general sentencing determinant). When the sentencing determinants are quantified, the predictability of sentence can be assured to a great extent. The objective criteria for quantification, however, would not be easily attained and standardizing sentencing procedures could lead to departures from reasonable sentencing for a specific case. The Commission chose to classify sentencing determinants qualitatively, rather than classifying them numerically, by relevance of sentencing determinants and sentencing reflected in the Guideline to demonstrate objectivity as much as possible in the sentence.

 The guideline first separates sentencing determinants into aggravating and mitigating factors. Next, the sentencing determinants are divided into special and general sentencing determinants by taking into consideration its affects. Finally, the factors are further categorized into the conduct and actor/etc. determinant

Aggravating and Mitigating Factors

 The sentencing determinants are first divided into aggravating and mitigating factors. Specifically, the aggravating factors imply increase in liability for the offender, whereas the mitigating factors decrease the liability. These two factors are to be meditated in the sentencing process by the sentencing judge. The Commission created and categorized the aggravating and mitigating factors based on the statistic analysis of past sentencing practices and through adjustments reflecting appropriate norms that are applicable.

Special and General Sentencing Determinants

 The sentencing determinants are grouped into special and general sentencing determinants. Special sentencing determinants have important effect on sentencing and on determining the applicable sentencing zone as well. General sentencing determinants have less affect and cannot be used to determine the applicable zone, but can be used to decide a specific sentence within the sentencing zone. For example, when a special factor and multiple general factors exist, only the special factor affects the aggravating or mitigating sentencing range adjustments. Along with the general sentencing determinant, the special sentencing determinants are taken into consideration for sentencing range decisions as well as sentencing periods.

 Since special sentencing determinants are used in determining the recommended sentencing zone, distinctions between certain factors are important.

 In regards to the special sentencing determinants, the Commission made decisions as a result of findings revealed by statistics, overall consensus, and policy regarding criminal law. The guidelines were framed under the offense groups, and because the division of the special and general sentencing determinants cannot be completely definite to all Groups, certain factors classified as a special factor in an offense group can be treated as a general factor in another Group.

 Another relevant point is that the division of special and general sentencing determinants is at times not always clear. This problem is resolved by the aforementioned overlapping of sentencing ranges.

Conducts and Actor/etc. Determinants

 Sentencing determinants are divided into two separate determinants of conduct and actor/etc. Under the assessing principles applied in the sentencing determinants, among special sentencing determinants, the act determinant should be considered with more weight than the actor/etc. determinant. The reason for this is the principle that the liabilities for conducts of offenses are greater compared to other sentencing determinants.

 The sentencing guidelines classify factors relevant to the offense into conduct factors, non-offender’s extent of participation in the offense, circumstances after the commission of the offense, and others. For example, the Guideline list premeditated crime or cruel commission of crimes in determinants relevant to conduct and cases where the offender expresses remorse and the victim opposes punishment, voluntary surrender to investigative agencies, significant amount of money deposited, and prior criminal records as the actor/etc. of general sentencing determinant. In some cases, however, the distinction between the conduct and actor/etc. determinants may not always be clear.

Sentencing Determinants Not Listed in the Table

 The special sentencing determinants, which determine the sentencing range, are limited to the factors listed in the Guideline. Even if a certain important factor, that proves as important as a special sentencing determinant, is not listed in the Guideline, it cannot be viewed as a special sentencing determinant. When the exclusion of such factor of importance in the Guideline and such cases have resulted in inappropriate sentencing range, a sentencing court can depart from the Guideline. The Commission may revise the Guideline to reflect the factor as a special sentencing determinant, if the factor is a special and typical sentencing determinant repeatedly acknowledged by judges.

 The general sentencing determinants does not affect the sentencing ranges and is not limited to the factors provided in the Guideline. This is because, unlike factors decided in the recommended sentencing range, there are difficulties in limiting the factors to the recommended sentencing range. The guidelines lists general sentencing determinant, in order to prevent typical factors in the procedure of sentencing from being omitted and allow activate practices regarding the sentencing determinants between the parties, and to help judges assess the numerous sentencing determinants.

Statutory Aggravating and Mitigating Factors and Discretionary Mitigating Factors

 Under the Criminal Act, the sentencing determinants are classified to statutory aggravating/mitigating factors and discretionary mitigating factors. This guideline, however, takes a different approach than the Act. Rather than following the Act, the statutory aggravating/mitigating factors and special sentencing determinants are treated differently in this guideline. In general, although the statutory aggravating/mitigating factors are important sentencing determinants, the sentencing determinants with greater importance are included as discretionary mitigating factors. Therefore, statutory aggravating/mitigating factors are not always classified as special sentencing determinants but many discretionary mitigating factors are contained in the special sentencing determinants.

Statutory Optional Mitigating Factors

 One of the issues the Commission had to resolve related to the sentencing factor that were discretionary mitigating factor under the statute (for example, voluntary surrender to investigative agencies prescribed in the Criminal Act, Article 52, paragraph 1). In the sentencing procedure, if the sentencing determinant is taken into consideration, then the difference between mandatory mitigating factor and discretionary mitigating factor becomes meaningless.

 On the other hand, if the mitigating factors are placed in the discretionary power of the court, the problem of bias may arise in the sentencing procedures. The Commission resolved the issue by placing the discretionary mitigating factors under the statute as either a special or a general sentencing determinant. In addition, the Commission recommended that when the court decides not to mitigate under the statutory mitigation, it may still mitigate under the discretionary mitigating factors under this guideline. This helped resolve the problem of two conflicting approaches regarding the mitigating factors. Overall, when there is a statutory mitigating factor of discretionary power and the sentencing range reflecting such mitigating factor is lower under the sentencing guideline, the sentencing factor must be taken into consideration as either a statutory mitigating factor or a discretionary mitigating factor.