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 ¨ç ffirmative factors are factors
that affirm suspension of sentence, and adverse factors that suggests denying the
suspension of sentence ¨è rimary consideration factors and general consideration
factors, pursuant to the importance of the factors on the determination and ¨é 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.