Suspension Of Sentencing

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Qualitative Classification of Consideration Factors on Suspension of Sentence and Its Significance

 Similar to the qualitative classifications of the sentencing factors, the consideration factors provided in the Guideline are classified accordingly.

 The Guidelines classify the consideration factors to ① ffirmative factors are factors that affirm suspension of sentence, and adverse factors that suggests denying the suspension of sentence ② rimary consideration factors and general consideration factors, pursuant to the importance of the factors on the determination and ③ in some cases, other relevant factors, such as risk of recidivism within the primary or general consideration factors are considered.

 In regards to suspension of sentencing, it is possible to make such determination by considering only the risk of recidivism as a single factor. The Commission, however, recognized the lack of research, absence of firm statistical basis, and possible criticism on whether objective judgment on the prevention of an offense would be attainable. Because of this, the Commission did not limit the factors considered for suspension of sentencing to a single factor on the risk of recidivism.

 Similar to the sentencing factors, the consideration factors on suspension of sentence are provided in each offense group respectively. Even though several tables of sentencing factors exist in a specific offense group, the table that represents the factors for consideration in suspension of sentence can be presented in a single unit. For example, without classifying within the consideration factors, a single group of consideration factors on suspension of sentence are offered for the Sexual Assault Group, contrary to five tables of sentencing factors, i.e., standard sexual assault (rape against victims thirteen years or older, indecent act by compulsion thirteen years or older, sexual crimes against victim under thirteen years of age), sexual assault resulting in bodily injury, and sexual assault resulting in death.

Primary Consideration Factors and General Consideration Factors

 Among the factors, the primary consideration factor directly affects the decision on whether to impose suspension of sentencing or sentence imprisonment to the defendant. The general consideration factor, however, does not directly affect the decision to suspend the sentence. The general consideration factor can become a deciding factor for modifying the suspension of sentence or imprisonment decision when such determination resulted by following the primary consideration factor.

 Though the general consideration factor has somewhat of a passive part in the determination process, it aids the sentencing judge by providing abundant basis to be taken into account when considering for suspension of sentence. General consideration factors also play significant roles in balancing sentences among cases by preventing common consideration factors from being omitted within the identical offense group or offense type.

Sentencing Factors and Consideration Factors on Suspension of Sentence

 When determining the sentencing periods for an offense, the existence of a standard sentencing range sets forth the special sentencing determinant as an aggravating or a mitigating factor. If a particular sentencing determinantis provided as a mitigating factor, if the determinant is not present, then the standard sentencing range is recommended.

 This example can be found when ‘victim opposes punishment’ factor is present as a sentencing factor and recommends the mitigated sentencing range. If the factor is not present, it would be inappropriate to use that as an aggravating factor. For this example, selecting either an aggravated and mitigated sentencing range without the standard sentencing range for the offense would lead to imposing an unreasonable sentencing.

 This, however, is not the case for consideration factors on suspension of sentence. Contrary to the determining the sentencing periods, the decision on whether to impose suspension of sentence is made based on either selecting the suspension of sentence or imprisonment. Under the Guidelines, the suspension of sentence provides three sectors to select from: imprisonment advised sector, suspension of sentence advised sector, and discretionary sector.

 Compare the Guideline’s approach to the sentencing period and the suspension of sentence. For the sentencing period, the Guideline sets forth the standard sentencing range as a basis and makes it possible to choose the aggravated sentencing range or the mitigated sentencing range depending on whether the special sentencing determinants are present. For the suspension of sentence, the Guideline sets forth the discretionary sector as a base but determines whether the suspension of sentence is recommended depending on the primary consideration factors. If the Guideline does not provide recommendation for either case, the discretionary sector makes it possible for the sentencing judge to select either sector.

 The consideration factors regarding suspension of sentence are different with sentencing factors, in that even though the existence of a certain consideration factor is provided as an adverse (affirmative) factor, the absence of the factor can be regarded as an affirmative (or adverse) factor. For example, when the consideration factor ‘victim punishment’ is specified as a primary affirmative factor, the absence of such factor works as a primary adverse factor.

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