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.