Assessing Principles Applicable to the Sentencing Factors and Its Need

 Without proper principles for assessing the sentencing factors, the Guideline¡¯s function to provide guidance on sentencing cannot be assured. Although the assessing principles will not be able to ensure perfect assessments for every case, in most cases, the assessing principle set forth in the Guideline will provide a reasonable sentencing range.

Outline of Assessing Principles of the Sentencing Factors

 The special sentencing determinants are given more consideration than the general sentencing determinants. This is exemplified in the fact that the special sentencing determinants can adjust the three sentencing range zones while the general sentencing determinants will be only within a given zone.
 As seen in the table below in regards to the murder group, the sentencing guidelines have multiples of assessing principles applicable to the special sentencing determinants.

< Assessing Principles Applicable to the Sentencing Factors >

    •  When more than two special sentencing determinants are found, sentencing range is determined through assessing the factors according to the following principles:
      1. ¨ç The conduct factor is taken into consideration with greater weight than the same number of actor/etc. factor. However, the victim or the victim¡¯s family who opposes punishing the offender can considered as the same as the conduct factors.
      2. ¨è Each factors within the categories of conduct or actor/etc. are weighed equivalently.
      3. ¨é When the sentencing range is not decided clearly with the aforementioned principles of ¨ç and ¨è, the judge should decide the sentencing range through comparing and assessing the determinants overall based on the principles in ¨ç and ¨è.

 The principles applied for assessing the factors can be summarized into the following two principles: The first principle applied is ¡°the principle of greater weight given to the conduct determinant¡± and the second is ¡°the principle of special sentencing determinants of the same kind treated equally.¡± In order to implement the principle that liability should result from the conduct, the conduct determinants are treated with greater weight than actor/etc. determinant. Between the conduct determinants or the actor/etc. determinants, the special aggravating factors and special mitigating factors possess the same weight as the same number of factors to offset each other. In Groups such as Murder, Sexual Assault, Robbery, Embezzlement and Breach of Trust, Abduction and Inducement, Fraud, Larceny, and Crimes on Obstruction of Official Duties, however, the victim or the victim¡¯s family member opposing the punishment of the offender can match the conduct determinant. This exception was made to follow the criminal policy of protecting victims by allowing opportunities for recovery from harm done by the offender.

 Since sentencing factors are not quantified numerically, sentencing ranges in every case cannot be determined automatically. For exceptional cases of assessing principles of special sentencing determinants not present in the sentencing range, the sentencing court should determine the sentencing range through comparing and assessing the various sentencing determinants.

 After assessing the sentencing determinants, aggravated sentencing range is recommended when the assessing reveals greater aggravating factors, and the standard sentencing range is recommended when the assessing reveals the same number of aggravating and mitigating factors.

Application of Assessing Principles of the Sentencing Factors

 As prescribed in the sentencing guideline¡¯s assessing principles, when the special mitigating determinants are more in number or greater in weight (when the number of special aggravating factors in the conduct determinants and special mitigating factors in the act/etc. determinants are same), apply the mitigating sentencing range. When the special aggravating determinants are more in number or greater in weight, apply the aggravating sentencing range. Apply the standard sentencing range for cases where no special aggravating or mitigating factors are present and the number of factors as well as the characteristics is the same for either factor.

 More specifically, the following explains this assessment:

 Compare the number of conducts in the special mitigating factor and conducts in the special aggravating factors then calculate the number of special sentencing determinants after offsetting the factors. Compare the number of actor/etc. in the special mitigating factor and actor/etc. in the special aggravating factors then calculate the number of special sentencing determinants after offsetting the factors.

 First, the standard sentencing range is recommended for cases with no special sentencing determinants.

 Second, when only the special mitigating factors or special aggravating factors remain, assessments should be done as follows. If the remainders are aggravating factors, aggravated sentencing range is recommended, and if mitigating factors remains, then the mitigated sentencing range is recommended for sentencing. A cautionary note pursuant to the special adjustment of the sentencing range is advised. When the number of remaining special mitigating factors is more than 2, the minimum level of the mitigated sentencing range is reduced by 1/2 when the number of remaining special aggravating factors is more than 2, the maximum level of the aggravated sentencing range is increased by 1/2 For example, when the mitigated sentencing range is ¡°2 to 4 years¡± and remaining special mitigating factors is more than 2, the recommended sentencing range would be ¡°1 to 4 years.¡± If the aggravated sentencing range is ¡°4 to 6 years¡± and remaining special aggravating factors is more than 2, the recommended sentencing range would be ¡°4 to 9 years.¡± This would be applied regardless of whether the special sentencing determinants or conduct or actor/etc. determinants remains.

 Third, when both special mitigating and aggravating factors remains in the assessing process, the following should be taken into account: ¨çWhen the conduct in the special mitigating factors and actor/etc. in the special aggravating factors remain, and the number of conduct in the special mitigating factors is more than or the same number as that of actor/etc. in the special aggravating factors, the sentencing guideline recommends the mitigated sentencing range. This is because the Guideline considers the offense conduct factors with greater weight than the actor/etc. factors. If the remaining number of conduct in the special mitigating factors is more than 2, the minimum level of the mitigated sentencing range is reduced by 1/2. When the number of actor/etc. in the special aggravating factors is more, the court decides the range among mitigated, standard, and aggravated sentencing ranges, through comparing and evaluating the special sentencing determinants. This applies is the case when the remaining number of actor in the special aggravating factors is more than 2. In addition, the aggravated sentencing range is not advised, nor is the maximum level of the aggravated sentencing range increased by 1/2. ¨è When actor/etc. in the special mitigating factors and conduct in the special aggravating factors remain, the advised sentencing zone is determined in the same manner. When the number of conduct in the special aggravating factors is more than or same as that of actor/etc. in the special mitigating factors, aggravated sentencing range is advised. When actor/etc. in the special mitigating factors outnumber conduct in the special aggravating factors, the advised sentencing range is decided through comparing and assessing the determinants overall.

< Examples Determining Sentencing Ranges >

  1. ¨ç When the Number of Special Sentencing Factors are Same
    • (1) Case 1
      Á¦1»ç·Ê
      Classification Mitigating Aggravating
      Offense Conduct Cases where the Victim is
      Ascendant of the Offender
      Actor/etc. Voluntary Surrender to
      Investigative Agencies
      • As the above table exemplifies, one for each factor of special aggravating factor and special mitigating factor is present in this case. Since the offense conduct factor is given more weight than the actor/etc. factor, for this case, the aggravated sentencing zone is recommended.
      • If the above case had other factors involved then the recommended zone would be different. For example, a special mitigating factor of ¡®victim opposes punishment¡¯ factor could be present instead of the ¡®voluntary surrender to investigative agencies¡¯ factor. Since the Guideline recommends evaluating the ¡®victim opposes punishment¡¯ factor as same as the actor/etc. factor due to policy reasons, for this case, the standard sentencing zone would be recommended.
    • (2) Case 2
      Á¦2»ç·Ê
      Classification Mitigating Aggravating
      Offense Conduct Excessive Use of Self-Defense,
      Willful Negligence
      Premeditated Crime
      Actor/etc. Special Violent Crime Act
      (Repeated Crime)
      • Above table shows that there are two special aggravating factors and two special mitigating factors for this case. The conduct factor, ¡®use of excessive self-defense¡¯ offsets ¡®premeditated crime.¡¯ Also, the remaining conduct factor ¡®willful negligence¡¯ is given greater weight than the actor/etc. factor or the ¡®Special Violent Crime Act(repeated crime).¡¯ In this case, the mitigated sentencing range would be recommended under the Guideline.
  2. ¨è  Cases Exemplifying Unequal Numbers of Special Sentencing Factors
    • (1) Case 1
      Á¦1»ç·Ê
      Classification Mitigating Aggravating
      Conduct (Strong) Provocation by the
      Victim
      Actor/etc. Those with Hearing and Visual
      Impairments
      Absence of Remorse
      • The actor factor of ¡®those with hearing and visual impairments¡¯ offsets ¡®absence of remorse¡¯ and since ¡®(strong) provocation by the victim¡¯ factor remains, select the mitigating factor.
      • The actor factor ¡®those with hearing and visual impairments¡¯ offsets ¡®absence of remorse¡¯ and the remaining special mitigating factor ¡®(strong) provocation by the victim¡¯ recommends the mitigated sentencing zone for this case.
      • Another way to explain this is since the act factor ¡®(strong) provocation by the victim¡¯ is given greater weight than the actor/etc. factor, ¡®absence of remorse,¡¯ and additional special mitigating factor such as ¡®those with hearing and visual impairments¡¯ suggests the mitigated sentencing zone to be selected.
    • (2) Case 2
      Á¦2»ç·Ê
      Classification Mitigating Aggravating
      Offense Conduct Premeditated crime
      Actor/etc. Those with Hearing and Visual
      Impairments, Voluntary
      Surrender to Investigative
      Agencies
      • The conduct factor of ¡¯premeditated crime¡¯ is taken into greater consideration than actor/etc. factor such as the ¡¯those with hearing and visual impairments¡¯ or ¡¯voluntary surrender to investigative agencies.¡¯ But, in this case, the actor/etc. factors outnumber the factors in the conduct classification. In this case, the sentencing range zone cannot be recommended based only on the assessing principles.
      • In the case, the court decides the appropriate sentencing zone through comparing and evaluating the factors .

???? ???????