Concurrent Crimes and Multi-Count Convictions

 With regard to the concurrent crimes, the Guideline provides a different approach than the general provision of the Act. The reason for this discrepancy is the different approach of the Act and the Guideline in determining the possible sentencing range and the process of assessing the sentencing range.

 While the general provision of the Act considers concurrent crimes first for aggravation and then considers discretionary mitigation, the Guidelines consider all aggravating and mitigating factors together to select the appropriate sentencing range zone and then considers how to treat the concurrent crimes.

 Another difference is related to the purpose of the Act and the Guideline: the purpose of the general provision of the Act on concurrent crimes is to set up possible ranges for the sentence the purpose of the Guideline, however, is to present appropriate sentencing range of the concurrent crimes.

 Since the general provision of the Act cannot offer solutions to the need, the sentencing guidelines take a different approach in regards to concurrent crimes. In order to distinguish with concurrent crimes of the Act, the Guidelines uses the term “Multi-Count Convictions.”

Application of Guidelines on Multi-Count Convictions

 The guidelines on multi-count convictions are applied only when the Guidelines are established for all relevant offenses.

 If one type of offense is provided in the Guideline and the other offense is not, applying the guideline on multi-count convictions would present extreme difficulties. In cases like this, although excluding the application of the Guideline is possible, this Guideline chose an alternative approach. The guideline provides that when an offense is contained in this guideline, and the other is not, the minimum level of the advised sentencing range pursuant to the Guideline should apply. This is based on practical reasons such as many cases are charged with multi-count and for reasons such as serious offenses as the first term of the Commission established. This enabled the Commission to resolve issues related to imbalance of penalty in part and to practical application to the Guidelines as the first term Commission intended. This, however, is not limited in cases where the offense under the Guideline’s offense category is the base offense or the offense’s liability is more severe.

 When an offense under the category of the Guideline and the accompanying offense typically combines such offense (for example, murder and damaging the body of the deceased victim), the two are charged in one case. Rather than treating this as a multi-count conviction, the latter is treated as a single sentencing factor.

Multi-Count Convictions and Concurrent Crimes under Act, Subsequent Parts of Article 37

 The Commission has found difficult to analyze the convicted cases after trials, to propose the principle on deciding the sentencing range, and to suggest guidelines for suspension of sentence. The difficulty is that the concurrent crimes under Act, subsequent parts of Article 37 rarely occur in practice. For above reasons, the Guideline does not set forth treatment for the crimes under the Act’s subsequent parts of Article 37. Therefore, for these offenses, the guidelines do not apply.

Multi-Count Convictions and Compound Offenses

 The guidelines did not provide treatment of compound offenses. Therefore, this cannot imply that a higher sentencing range for compound offenses.

 Despite this, the guideline can be used as a reference for compound offenses where the highest minimum of penalty among the compound offenses might be treated as the lower limit of the sentence range.

Outline of Guideline on Multi-Count Convictions

 The Guidelines present the principle on multi-count convictions as follows:

Determining the Base Offense

 The guideline’s base offense is determined through selecting the penalty and statutory aggravation and mitigation then the offense with the highest maximum sentencing becomes the base offense. In this sense, determining the base offense for the Guideline and the Criminal Act is identical. The difference arises in the Guideline, however, when the upper sentence limit of the heaviest count is lower than another count, the latter becomes base offense. This exception was established to avoid the sentencing range of multi-count convictions becoming lower than the sentencing range of a single-count conviction.

 An example would be a case involving combined convictions with a count of murder against ascendant in the mitigated sentencing range of type 1 (3 to 5 years) and a count of murder in the standard sentencing range of type 2 (10 to 16 years). If murder is the base offense and the Guideline suggests an increase by adding 1/2 of the maximum sentencing range of the other offense, then the final sentencing range would be 10 to 18 years and 6 months. If, however, the base offense is the murder is against an ascendant, the final sentencing range is 10 to 13 years. Under the general provision of the Criminal Act, for the base offense is the murder is against an ascendant, the sentencing range of multi-count convictions is lower than a single-count conviction of murder. In this case, murder would be more suitable as a base offense since the sentencing range is higher than the murder against ascendant under the Guideline.

 Considering all the principle and the exceptions, the base offense has the highest maximum of sentencing range pursuant to the sentencing guidelines.

Calculating Sentencing Range of Multi-Count Convictions

 The guidelines chose to heighten the maximum limit of the sentencing range on the calculating the multi-count convictions. The guidelines provide different ways to heighten the limit in terms of the number of counts. If convicted on 2 counts, then increase the maximum sentencing range by adding 1/2 of the other offense’s maximum sentencing range. If convicted for more than 3 counts, increase the maximum sentencing range of the base offense by adding 1/2 of the most serious count’s maximum sentencing range, and add 1/3 of the second most serious count’s maximum sentencing range. Since a count with the maximum penalty becomes the base offense, when the aforementioned method is applied, the maximum increase to the multi-count offense’s sentencing range would be 5/6 the base offense’s maximum sentencing range.

Special Guidelines on Multi-Count Convictions Involving Bribery, Embezzlement and Breach of Trust, Fraud, and Crimes on Food and Health

 In the offense groups such as Bribery, Embezzlement and Breach of Trust, Fraud, and Crimes involving Food and Health, the issues of how to treat the multi-count convictions could be raised. For cases related to multiple crimes of the same type and is treated as one single count, summation of the money involved would be the determining criterion to determine the offense type and recommended sentencing zones. The guidelines provide that when multi-count convictions are of the same kind, similar to single-count conviction, the total sum of money would be used to determine the type and the sentencing zones, with the special provision on assessing the minimum sentencing range.

 This means that when the total sum of money modifies the type of offense to a more serious offense by one degree than the most serious offense, the minimum sentencing range in the offense type is mitigated by 1/2. When the total sum results in serious offense by two or more degree, the minimum sentencing is mitigated by 1/3. In this case, however, the minimum should not be lower than the minimum sentencing range of the base offense.

 When multi-count convictions combine offenses of the same and different kinds, first calculate the multi-count convictions of same kind. After the sentencing range among same kind of offense is determined then apply the usual process to produce the sentencing range in multi-count convictions.