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.

 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: ①When 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. ② 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.