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║ChapterV║
Determination of Sentences: Principles, Policy and Practice
| Determination of Sentences: Principles, Policy and Practice | 293 |
Chapter V
Determination of Sentences: Principles, Policy and Practice
5.1 INTRODUCTORY
Sentencing is about the way courts deal with a person after he or she
has pleaded guilty or has been found guilty, in other words, it is
about what happens from the moment when a person charged with
an offence ceases to be merely ‘the accused’ and becomes ‘the
offender’.1There is no statutory or case law definition of ‘Sentence’.
Certainly, it must include the punishment, such as fine or a
custodial sentence, which the court imposes upon an offender for the
offence. It should also include orders imposed upon the offender on
conviction which cannot properly be described as punishments. For
instance, the ancillary orders are made against the offender to
benefit individuals who have suffered loss or have been put to
expense by reason of the offence like compensation orders.2 The
objectives of sentencing, to which the courts are required to have
regarded when dealing with the offenders, are:3
• Punishment of offenders
• Reduction of Crime • Reform and Rehabilitation of offenders
1 Martin Wasik, Emmins on Sentencing, Oxford University Press, New York,
(2007), p. 2. 2 Id., p. 6. 3 The City Law School (London), Criminal Litigation and Sentencing, Oxford
University Press, New York, (2009), p. (292).
| Determination of Sentences: Principles, Policy and Practice | 294 |
• Protection of the public • Making of reparation by offenders to persons affected by their
offences.
There has been a view that sentencing is ‘an art not a science’, that it
has to be absorbed through the experience of doing it, rather than
being addressed by way of set of principles.
5.2 MOVEMENT TOWARDS RATIONALE SENTENCING
The significance of the sentencing process is to be appreciated in the
context of individualization in the administration of criminal justice.
Individualization means that instead of fitting the offence, the
criminal sanction should fit the offender. The first movement towards
rational sentencing was launched by the English classical school as
a reaction against the arbitrary nature of the punishment prescribed
for a variety of offences. In eighteenth century England, over 200
crimes ranging from pickpocketing to murder were punishable with
the death sentence. In other words, far from fitting the offenders, the
punishments did not fit even the offences. Bentham sought to
achieve some element of rationality in the penal policy by advocating
punishments of different magnitudes for different kinds of offences.
He provided the following guidelines for the gradation of offences in
terms of different punishments:
1. That the value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.
2. When two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.
3. The punishment should be adjusted in such manner to each particular offence that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.
| Determination of Sentences: Principles, Policy and Practice | 295 |
4. The punishment ought in no case be more than what is necessary to bring to into conformity with the rules here given.
The other rules propounded by Bentham laid down that the
quantum of punishments prescribed should be in inverse
proportion to the possibility and time factor involved in the
infliction of punishment. In other words, punishment ought to be
greater in situations where detection of the offence and the
consequent punishment is either uncertain or remote in terms of
time.4
Regarding the fixation of punishment in the range permissible by
law, Bentham said that the quantum should vary according to the
offender's capacity to suffer. He then enumerated thirty-two
variables of capacity for suffering, ranging from sex, age, physical
and mental health to climate, religion and lineage which, in the
words of Nigel Walker, was an astonishingly modern piece of
writing for an eighteenth-century penologist. The classical school,
therefore, paved the way for distinguishing the various crimes
according to their gravity and the prescription of different
punishments for them. The Indian Penal Code, 1860 is an
example of the influence exercised by Benthamites in relation to
the penal legislation in the nineteenth century and afterwards in
various countries. The grading of the various offences is based on
their gravity as understood by the legislature; and the gravity of
an offence is generally assessed in terms of social danger, alarm,
social disapproval, harm and wickedness involved in it.
5
4 S.M. Afzal Qadri, Criminology: Problems and Perspectives, Eastern Book
Company, Lucknow, (2005), pp. 350-351. 5 Rupert Cross, The English Sentencing System, Butterworths, London,
(1975), p. 139.
| Determination of Sentences: Principles, Policy and Practice | 296 |
5.3 SENTENCING AS A HUMAN PROCESS
In 1997 John Hogarh published his study ‘Sentencing as a Human
Process’. As the title indicates, he perceived sentencing not only as a
stage in the legal process but a place in which the human actor
played a decisive role by differentiating facts, legal criteria, attitude
and perceptions of the decision maker. He not only explained
difference in sentencing pattern but displayed the effect varied
attitude and perceptions on specific out come. Another aspect of
sentencing which may yet be an important one is the slow shift from
principles of deterrence and rehabilitation to the undoing of harm
done by means such as restitution, compensation etc., which has by
and large moved towards the ambition of reduction in crime.6 But it
is pertinent to note that victims have always played a subservient
role mainly as a witness and have never had major role to play in
trial or proceedings.7
Most judges have little or no background or training required for the
selection and imposition of effective sentences. Sentencing decisions
had always reflected personal value of the prosecutor or judge rather
than being based on scientific considerations. James v. Benett,
Former Director of Federal Bureau of Prison, USA, testified that some
judges are arbitrary and sadistic in their sentencing process. The
evidence is conclusive from the fact that the discretion mete out with
divergent sentences where divergences and variations are result of
change amongst judges and not by material difference in defendants
6 Brian A. Grosman, New Directions in Sentencing, Butterworth, Toronto,
(1980), p. 24. 7 In United States, Victim Impact and Victim Opinion Statements are used to
inform and to give the victim some say over the sentencing process. In Britain, Victim Personal Statements were deliberately so named in order to distance them from the American Model of giving the Victim a say in sentencing. Indeed, British sentencers are directed not to take into account any views as to sentence that might be expressed by the victim.
| Determination of Sentences: Principles, Policy and Practice | 297 |
or their crimes. It is also to be noticed that sometimes by being able
to impose a severe sentence which they know will be curtailed by
Parole, the courts are set to cater both to the public demand for stiff
and vengeful dispositions and to the more reasonable requirements
of justice. Yet the sentenced offender remains uncertain regarding
the terms of his imprisonment. His compelling hope is to convince
some prison or parole board that he has been rehabilitated.8
In the context of sentencing again, sentencers think that they chose
or delivered the correct sentence. Sometimes, this is done intuitively
rather than according to a set of rules. When asked to account for
their decision, they do so by reciting the facts and the circumstances
but without explicitly or logically relating these to a calculus of
sanctions. Sentencers perceive themselves to be making complex,
difficult and sensitive decisions. They do so by drawing on their
experience and professional knowledge but they find it difficult to
articulate the elements of these competences. Moreover, it is believed
that judges organize their thinking about sentencing not in terms of
a series of abstractions but as a series of reactions to a particular
cases (for example, in situations like media trial of a murder case).
Now this can be related to the Bourdieu’s concept of Habitus which
means, ‘the durably installed generative principle of regulated
improvisations which produce practices’. This sits easily with
sentencers own perceptions of sentencing as intuitive and artful.
Bourdieu’s intention is however not to take habitus for granted, but
to examine it in context and describe its elements and properties.
Also, Sentencers give decisions about cases which have already been
constructed by the work done by other agencies. Their sentencing
options are to some extent constrained by decisions made by
8 Marvin E. Frankel, Criminal Sentences: Law without Orders, Hill and Wang,
New York, (1973), p. 69.
| Determination of Sentences: Principles, Policy and Practice | 298 |
prosecutors, or negotiated between prosecutors and defence agents,
and by reports prepared for the court by probation officials, social
workers and other professionals. Sentencers will also anticipate the
way in which their decision will be interpreted by others, most
considerably, the courts of appeal, but also by the offenders, victims
and their families, and the local and national media. Local courts
culture would also generate conditions which affect sentencing
decisions. In the courts at district or sub divisional level, shared
understandings and discussions with the colleagues provide an
informal resource for sentencing decisions.9
No doubt that judges must give objective, impartial and impersonal
judgements. Such judgements must be arrived at in a spirit of
humility and in full consciousness of the limitations which are
inherent in every decision, the judge cannot shirk the responsibility
of giving what might turn out to be an unpopular decision, of course,
he must be bold enough to accept criticism, both informed and
uninformed. But it must also be realised that judges are not
computers or slot machines, where you press a button and the same
answer will be thrown up each time. Also, that every judge would
award the same punishment on each offence is not even supported
by evidence. Such ‘mechanical jurisprudence’ is a myth
10
The sentencing decisions are relatively autonomous and not subject
to the accounting practices of others. The judges have successfully
avoided political interference with sentencing. Yet, some of the
decisions may get affected because of the corrupt practices if any is
followed by the judge. One more important point which needs
.
9 Sarah Armstrong and Lesley Mc Ara, Perspectives on Punishment: The
Contours of Control, Oxford University Press, New York, (2006), pp. 162-164.
10 Rani DhavanShankardass, Punishment and the Prison: Indian and International Perspectives, Sage Publications, New Delhi, (2000), p. 173.
| Determination of Sentences: Principles, Policy and Practice | 299 |
attention in such cases is that the decision comes first and the
judges work backwards to construct a justification and to
demonstrate that the sentence ‘fits’ the case. Thus, understanding of
sentencing from this perspective is an understanding of the range of
legitimate accounts which judges can construct to justify their
sentence. Thus, it can be boldly stated and accepted that the only
institutional check on sentencing decisions is the appeal process.
Sentences are only likely to be overturned if they are manifestly
unjust or out of line. The Court of Appeal mostly describes broad
boundaries of acceptability. And it is most unlikely due to
subordination that a judge from state judiciary will approach the
high court judges to prevent their decision from being overruled.11
The reductivist approach is that the imposition of hardship through
punishment is justified whenever certain benefits are achieved by
that punishment, and where those benefits outweigh the hardship
and make its imposition, on balance, worthwhile. This is the
principle of utility, expounded by Jeremy Bentham. In particular,
the imposition of punishment is here designed to reduce the overall
incidence of offending within society. There are different lines of
5.4 APPROACHES TOWARDS SENTENCING
Traditionally, sentencers were largely free to pursue the sentencing
approach which seemed to them most appropriate, on a case by case
basis, and there was little attempt to regulate this. Indeed it has
often been argued by sentencers themselves that the formulation of
sentencing policy is a matter peculiarly within the ambit of the
judiciary.
5.4.1 The Reductivist Approach
11 Supra Note 9, p. 164.
| Determination of Sentences: Principles, Policy and Practice | 300 |
thought in this regard firstly, the punishment will act to deter the
person sentenced, so that the person will desist from offending
through fear of repetition of the penalty in future. Secondly, the
punishment will deter other likeminded people. They will decide not
to commit an offence when they see what penalty has been inflicted
on the offender on this occasion for doing so. Thirdly, by imposing a
sentence of a particular type, such as lengthy prison term or a
driving disqualification, the offender will be prevented from
committing further offences in the future, at least for a limited period
of time. Fourthly, the sentence handed down by the court will bring
about a change of attitude on the part of the offender, so that he will
desist from offending in future, not through fear of further
punishment, but through a deeper realisation of the anti-social
nature of defending. The argument about reductivist sentencing is
not solely about whether it can be shown to work. Under
consideration there is then the issue of the injustice on imposing a
sentence which is more severe than the offender deserves in an
attempt to achieve a general effect.12
A second view can be seen in contrast to the reductivist one. The
desert approach to sentencing emphasises the moral requirement of
maintaining a proper proportion between offence and punishment. It
states that punishment involves censuring the offender for his
wrongful behaviour. Thus, prime determinant of sentencing should
be to ensure that the punishment imposed is that which is deserved
for the offence and the degree of offender’s culpability. It should be
understood that, in contrast to the various recidivist approaches,
desert principles do not require that sentencing practice should
5.4.2 The Desert Approach
12 Supra Note 1, pp. 44-48.
| Determination of Sentences: Principles, Policy and Practice | 301 |
affect overall crime levels. The view is that the ‘crime problem’ in
society can and should be tackled by a combination of strategies
including economic policy, social policy, housing policy,
environmental design and education, but only to a rather limited
extent through sentencing practice13
Following considerations must be kept in mind while evaluating the
merits of a particular approach
.
14
• Proportionality: A sentence should fit the crime
:
• Individualism: A sentence should reflect the offender’s criminal history and the threat posed to society
• Disparity: The sentences for a particular offense should be uniform; “like cases should be treated alike.”
• Predictability and Simplicity: The Sentence to be imposed for a particular offense should be clear and definite and should not be dependent on the personality or biases of the judge. It should be relatively easy for a judge to determine the appropriate sentence.
• Excessiveness: A sentence should not inflict unnecessary and needless pain and suffering.
• Truthfulness: An offender’s sentence should reflect the actual time served in prison.
• Purpose: A Sentence should be intended to achieve one or more of the purposes of punishment.
5.5 FORMAL SOURCES OF SENTENCING DECISIONS
The formal sources of sentencing law may be said to provide a kind
of outer framework for sentencing decisions, and within that some
internal rules, principles and standards, but it is plain that a
13 Id, p. 48. 14 Matthew Lippman, Contemporary Criminal Law, Sage Publications, New
Delhi, (2007), p. 61.
| Determination of Sentences: Principles, Policy and Practice | 302 |
considerable amount of flexibility is left in the hands of the court in
many cases. The two main formal sources of sentencing are:15
(1) Legislation: The legal sources that frame and direct the sentencing decision are more numerous and more contradictory in nature. Legislation is an increasingly important means by which the parliament establishes the formal framework of sentencing law by setting out the respective powers of the judges. It is also the means by which Parliament exerts authority over the sentencing process by imposing restrictions upon the judicial exercise of discretion
16. Statutes passed by the parliament establish the framework of sentencing principles. Statutes set a maximum sentence for almost every offence. All these provisions have to be interpreted by the courts, and some of the cases which go on appeal raise a particular point of statutory interpretation (about the extent of the courts’ power) rather than any general issue of principle (as to how the courts should exercise their powers). The role of legislation as a source of sentencing law has therefore largely been one of providing powers and setting outer limits to their use. Within those outer boundaries, sentencing practice has been characterized by considerable discretion subject to the general superintendence of the higher courts and to growing influence of sentencing policy. It is held in an English case of Bright17 that the “Statutory maximum is reserved not for the worst possible case which can realistically be conceived, but for cases which in the statutory context are identified as cases of the utmost gravity”. The practical difficulties for courts are increased by the dispersal of sentencing law across several statutes. However, it must be observed that the important policy objectives cannot be accomplished without legislation; and that fairer sentencing outcomes may not come about if maximum discretion is left to judges and magistrates, despite their claims to the contrary.18
(2) Judicial Decisions: Judges have long since attempted to develop their own sources of guidance and self restraint. Guideline judgments are derived from judicial decisions at the appellate
15 Andrew Ashworth, Sentencing and Criminal Justice, Cambridge University
Press, Cambridge, (2010), p. 41. 16 Lucia Zedner, Criminal Justice, Oxford University Press, New York, (2004),
p. 174. 17 [2008] 2 Cr App R(S) 578, at pp.588-589. 18 Supra Note 15, p. 26.
| Determination of Sentences: Principles, Policy and Practice | 303 |
review. The judgments are intended to be binding upon the lower courts and have been regarded as such by the subordinate judges. As Ashworth observes: ‘this method of guidance seems to have caused less judicial opposition.....probably because it has been developed by the judges, for the judges.19 A body of decisions worthy of being called jurisprudence has grown up. For example, Criminal Law Reporters, All India Reporter, builds on the series of reports by collating decisions and arranging them according to subject matter, providing judges and practitioners with a ready source of reference on most issues of sentencing law.20
5.6 MODELLING THE SENTENCING PROCESS
Little is known about the social practice of sentencing. Sentencers in
many jurisdictions enjoy wide discretion in their decision making.
While every jurisdiction has complex procedural regulation which
must be followed to ensure that sentences are lawful, few have rules
which generate the ‘correct’ sentence from a given set of facts and
circumstances. One important way of understanding patterns in
sentencing is to look at the aggregate sentencing figures and use
statistical tools to analyse the patterns that emerge from these. The
analysis looks for factors or combinations of factors which appear to
predict sentencing outcomes with some degree of accuracy. Thus, for
example, if one possessed certain information about an offence and
about the criminal history of the offender, one could use these
analyses to predict the sentence that would be passed in a particular
court.
The most elaborate form of such analysis would produce a ‘model’ of
sentencing which would take into account a wide range of relevant
factors and measure the effect which these have on sentencing
outcomes. Perhaps the most rigorous and comprehensive attempt to 19 Maguire, Morgan and Reiner, The Oxford Handbook of Criminology, Oxford
University Press, Oxford, (2002), p. 1094. 20 Supra Note 15, p. 34.
| Determination of Sentences: Principles, Policy and Practice | 304 |
produce a model of sentencing is described in a book published in
1989 by Austin Lovegrove. His analysis explains that two factors,
case seriousness and criminal history are the best predictors of
sentencing outcome. Beyond these two factors, others have much
smaller and much less accurately predictable effects on outcome. It
is pertinent to note the fact that there is a pattern which does not
necessarily imply a rational model of sentencing being operated
unconsciously by sentencers. From an interpretive perspective,
sentencers are social actors. They perceive for themselves while
making decisions and making choices, albeit within certain
boundaries. It is argued that these patterns are constructed because
judges are reproducing structures of professional knowledge and
practices learned through experience. Nevertheless, Lovegrove’s
argument is that these statistical patterns reveal what he calls
‘applied’ sentencing policy. Even if judges are not able to articulate a
sentencing policy, what they actually do in practice constitutes a de
facto sentencing policy. One can accept that sentencing policy is
‘what judges do’ but this does not entail that what judges do is
therefore systematic or consistent.21
There are three basic models of sentencing- the legislative, judicial or
administrative model. These are so called in recognition of the
institution or the group of policy makers and exercise the power to
imprison and to determine the length of imprisonment:
5.6.1 Three Basic Models of Sentencing
22
• Legislative Fixed Model: In the legislative fixed model, the legislature determines that conviction for a given crime and warrants a given term of imprisonment. There is no judicial or
21 Supra Note 9, p. 155. 22 Alan M. Dershowitz, Fair and Certain Punishment, Mc Graw-Hill Book
Company, New York, (1976), pp. 79-80.
| Determination of Sentences: Principles, Policy and Practice | 305 |
administrative discretion under this model; the legislature has authorized one sentence. In practice there is still discretion at various points in this process. The police and prosecutor generally have wide discretion to determine the charge. Also the executive generally has discretion to commute or pardon. In theory, however, the legislatively fixed sentence is the least discretionary in the sense that the sentence is determined in advance of the crime and without knowing the identity of the criminal. But since the legislature has enormous discretion to determine which crimes deserve what punishments and since it is widely known what kinds of persons generally commit what kinds of crimes, racial and other kinds of prejudice tend to play a role in determining punishments for different typical crimes.
• Judicially Fixed Model: In judicially fixed model, the legislature determines the general range of imprisonment for a given crime. The sentencing judge must fix a determinate sentence within that range. Once this sentence is fixed it cannot be increased or reduced by any parole board or authority; the defendant must serve the sentence. This model does not consider good time provisions or other relatively automatic reductions, nor does it consider commutation or pardon. Under this model, discretion is vested in the sentencing judge; how much is vested, depends on the range of imprisonment authorised by the legislature. On the day he is sentenced, however, the defendant knows precisely how long he will serve; there is no discretion vested in the parole boards or prison authorities.
• Administratively Fixed Model: In administratively fixed model, the legislature sets an extremely wide permissible range of imprisonment for a given crime. The sentencing judge must or may impose the legislatively determined sentence. The actual duration of the sentence is decided by an administrative agency while the prisoner is serving his sentence. Under this model, vast discretion is vested in the administrative agency and in the prison authorities. On day he is sentenced, the defendant does not know how long he will have to serve, although he probably can make an educated guess based on past practices.
The administrative model could be more accurately characterized as
a mixed discretionary model, since enormous discretion is still vested
| Determination of Sentences: Principles, Policy and Practice | 306 |
in the sentencing court as well as in the administrative release
authority. In general the legislature determines the general range of
sentences for a particular crime, the judge may select any sentence
within the range and the parole board may then release him after a
specific percentage of his sentence has been served.
5.6.2 Underlying Consideration in Sentencing
Principles act as a constraint on the pursuit of the rationales of
punishment. They limit, for example the temptations to impose
harsh sentences in the hope that they will deter or in order to mirror
exactly the severity of the most heinous crime and they limit highly
differentiated sentencing from the interest of the victim or the
rehabilitative needs of the offender. Ashworth observes, ‘it would be
extravagant to claim that there is a settled core of these principles
and policies... the reality is that they form a fluctuating body at
different stages in penal history, and are invoked selectively as the
tides of penal politics ebb and flow.”23
It acts as an important limiting constraint upon penalties that are
degrading or inhumane. It effectively outlaws certain types of penalty
altogether. It prohibits inhumane or degrading treatment or
punishment. It also prohibits unwarranted intrusion upon rights to
privacy, religious freedom, freedom of expression, and freedom of
assembly. What is regarded as inhumane or otherwise intrusive is
not fixed. However, Penalties involving bodily punishment or the
infliction of physical pain are generally deemed unacceptable.
The principles that require
consideration are:
The Principle of Respect for Human Dignity
23 Supra Note 15, pp.79-80.
| Determination of Sentences: Principles, Policy and Practice | 307 |
Penalties that impact upon the mind rather than the body tend to be
more readily accepted.24
The principle requires that the offender enjoy equality before the law
and that the penalties they suffer are of equal impact. The first of
these demands, that irrespective of class, caste, wealth, gender or
race, offenders should be treated equally. Wealthy offenders should
not be allowed to buy their way out of imprisonment nor should
middle class offenders be treated differently on the grounds of their
particular sensibilities. The principle of equality before the law is
challenged however, by those cases where equal treatment would
have differential impact. For instance, the mother responsible for
rearing a young family, or the offender who will lose a hard earned
job if imprisoned etc. The difficulty is how to respond
compassionately in these cases without risking discrimination
against those without children or job.
The Principle of Equality
25
The principle of parsimony suggests that since punishments involves
inflicting pain; it should be used as sparingly as possible. As a
general principle this requires that penalties should be minimally
intrusive in the lives of the offenders, though this may lead to
conflicts with the demands of desert, deterrence, and incapacitation
and so on. Imprisonment for example, should be employed only when
it can be shown that lesser penalties have been considered and
deemed insufficient.
The Principle of Parsimony
26
24 Supra Note 16, p. 179. 25 Id, p. 180. 26 M. Wasik and A. Turner, “Sentencing Guidelines for the Magistrates
Courts”, Criminal Law Review, (1993), p. 350.
Bentham argued for a principle of frugality in
| Determination of Sentences: Principles, Policy and Practice | 308 |
punishment: in all cases the lowest sufficient punishment should be
chosen. Noval Morris developed a similar principle of Parsimony. It
could be regarded as a principle applicable to policy makers of the
principle of restraint in the use of custody, perhaps phrased in terms
of minimum intervention. This would recognize the punitive effects of
the criminal process and publicity on many offenders, and would
argue for the greater prominence of formal cautions and other
diversionary measures for less serious forms of crime. It would also
support the approach of reserving community penalties for cases
that are too serious for a fine or conditional discharge. Alternatively,
or even additionally, the principle of parsimony could be regarded as
a principle for the sentencers in individual cases.
The Principle of Economy
The principle recognises that the State has limited funds and that
the money spent on punishment could well be spent on health or
education or other social goods. Since punishment is a drain on
precious, the principle of economy demands that the least expensive
option is preferred. But it is also argued that economy might suggest
that cheapest response to the most serious offences is capital
punishment but economic considerations cannot be allowed to
trump the demands of the humanity27
27 Supra Note 16, p. 181.
. Governments always have an
eye to public expenditure. Regard must always be given while
framing sentencing guidelines, to’ the cost of different sentences and
their relative effectiveness in preventing reoffending. Government
must develop policies and realise that present high custodial
population is falling high on expenditure.
The Principle of Respect for Rule of Law Values and Fundamental Rights
| Determination of Sentences: Principles, Policy and Practice | 309 |
This is a principle with both formal procedural and substantive
implications. The rules of law may be taken to require ‘rules which
are fixed, knowable and certain’, thereby enhancing liberty and
reducing arbitrariness in the exercise of state power. As a matter of
principle, both the courts and the legislature should ensure that
those rights are respected and not sidestepped or marginalized in the
sentencing process.
The Principle of Restraint in the Use of Custody
In recognition that imprisonment is a severe deprivation for most of
those incarcerated, there has been widespread formal acceptance
that it should be used with restraint. Draft Resolution VIII of the
Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders recommended that ‘imprisonment should be
used as a sanction of last resort’. Most of the pronouncements
reaffirm the government’s view that ‘ prison is the right place’ for the
most serious, dangerous and persistent offenders, whereas ‘
prevention and punishment in the community should be used ‘ for
less serious offenders, for whom custodial sentences are not
appropriate.
The Principle of Equal Impact
This principle argues that sentences should be so calculated as to
impose an equal impact on the offenders subjected to them. The
most obvious application of the principle is to fines, which ought to
be adjusted to reflect the different means of different offenders.
Another application may be to imprisonment for offender’s who have
some special mental or medical condition which may make custody
significantly more painful, although there may be an alternative
| Determination of Sentences: Principles, Policy and Practice | 310 |
justification based on comparison rather than equality of impact of
sanctions.
The Proportionality Principle
The principle of proportionality means that sanctions be
proportionate in their severity to the gravity of offences which
appears to be a requirement of justice. People have a sense that
punishments which comport with the gravity of offences are more
equitable than punishments that do not.28
The principle of individualisation of punishments is gaining
importance today. The legislature acting before the commission of
crime cannot obviously consider the character of the offender nor the
varying circumstances surrounding commission of the criminal act.
No one can possibly conjecture all possible permutations and
combinations of situations getting involved in or attendant on the
offence. Any attempt at that is impossibility and is beyond human
ingenuity. The system of punishment cannot be based exclusively on
the nature of crime committed but must be conditioned by the
personality of the offenders. The same kind of crime may be
committed by entirely different types of criminals.
5.7INDIVIDUALISATION OF PUNISHMENTS
29
28 Andrew Von Hirsch, Censure and Proportionality, A Reader on Punishment,
Oxford University Press, New York, (1994), p. 115. 29 Kirpal Singh, Quantum of Punishment in Criminal Law in India, Publication
Bureau Panjab University, Chandigarh, (1970), p. 132.
Sheldon Glueck
writes on this aspect, “The minute splitting up of offences into
degrees and the distinguishing attempts from completed criminal
acts with the meticulous setting down of supposedly appropriate
dosages of punishment belong to an era when punishment based
| Determination of Sentences: Principles, Policy and Practice | 311 |
upon degrees of vicious will was thought to be the only or best means
of coping with anti-social behaviour.”30
In this essential role of being the ultimate arbiter in sentencing, the
court, representing civilised society, is itself often on trial.
Accordingly, in sentencing the individual the judge must have the
capacity, the resources and the time to weigh the circumstances of
the individual standing for sentence. There cannot be the same
punishment imposed upon all offenders regardless of their
background; their circumstances; their intelligence; its effect on their
means of livelihood or family situations. That would be treating
unequals equally. Accordingly, punishment must be assessed on
individuals, upon the specific person then before the court. The
whole concept of making an individual an example to others is
fallacious. The public must of course be educated to obey the law,
but that education cannot occur at the expense of a specific
individual. Nor should the concept of punishment involve
punishment in the moral sense. The court cannot equate itself with
any form of divine purpose in the reformation of a sinner. The law
does not punish sinners as transgressors of the moral law; it
punishes those who have been convicted of breaching the code or
lawfully enacted statutes. There are multitude of sins that are not
unlawful by Statute. Some judges have developed the policy of
treating all offenders convicted of similar or identical offences alike.
This is a practice which should not be condoned. It is the offender,
not the offence which should dictate what penalty should be imposed
in the circumstances. The court must stand firm in dealing
humanely with wrongdoers, young or old, native or alien; white or
30 R. E. Knowlton, “Punishment Provisions in the Penal Code”, Burma Law
Journal, 1960, p. 13.
| Determination of Sentences: Principles, Policy and Practice | 312 |
coloured, all as individuals. Revenge or retribution are no part of a
court’s function31
The first issue which a court has to decide after finding an accused
person guilty is to determine whether the offender needs to be dealt
with through ‘individualization’ or by penal sanction. The term
‘individualization’ includes in this context preventive as well as
rehabilitative measures, and an approach different from the concepts
of retribution and general deterrence. After making the choice
between the two conflicting approaches, the court has to select the
appropriate mode out of the available devices in the particular
approach. If the choice made is ‘individualization’ the further issue is
to choose between alternatives like probation and suspended
sentence. If the punitive approach is chosen, the alternatives
available are fine, imprisonment or death sentence in extreme cases.
It is obvious that in case of the imposition of imprisonment or fine,
the quantum of the sanction shall also have to be fixed. The various
parts of the sentencing decisions are referred to as the primary and
secondary decisions.
.
32
The Criminal Procedure Code, 1973 incorporated some provisions
which can be put to use in order to personalise the sentence from
various angles. These provisions reflect the contemporary thinking
that sentencing is an important stage in the administration of
criminal justice and it should be given its due place in the system.
33
31 Supra Note 6, pp. 303-304. 32 Ahmad Siddique, Criminology: Problems and Perspectives, Eastern Book
Cmpany, Lucknow, (2005), p. 354. Also see, Thomas, Principles of Sentencing, Heinmann, London, (1970).
33 Santa Singh v. State of Punjab, (1976) 4 SCC 190.
There is a long range of factors which must be looked into by a court
while making up its mind on the issue of sentencing. The Law
Commission identified the various considerations to be made in its
| Determination of Sentences: Principles, Policy and Practice | 313 |
Forty Seventh Report and they have been cited with approval by the
Supreme Court in its subsequent rulings.34
It is evident that the sentencing authority must have sufficient
information regarding the various personal factors of the accused if
the primary and secondary decisions are to proceed on any scientific
premises. The need for making detailed information about the
offender available to the court has therefore been felt in all the
modern penal systems. The significance and importance of the pre
sentence report has been described by Sheldon Glueck thus: “A pre-
sentence investigation is helpful even if one clings to the conviction
that the chief aim of the criminal law is painful punishment with a
view to general and specific deterrence; all the more necessary it is if
one believes its main objective to be the reform and the rehabilitation
of the offender. Not only is the pre-sentence report is valuable as a
basis for sentence and treatment in the individual case but the
The Commission
summed up the issues relating to sentencing as, “A proper sentence
is a compromise of many factors, including the nature of the offence,
the circumstances- extenuating or aggravating of the offence, the
prior criminal record, if any, of the offender, the age of the offender,
the professional and official record of the offender, the background of
the offender with reference to the education, home, life and social
adjustment, the emotional and the mental condition of the offender,
the prospect of the rehabilitation of the offender, the possibility of the
return of the offender to normal life in the community, the possibility
of treatment or of training of the offender, the possibility that the
sentence may serve as a deterrent to crime by this offender or by
others, and the present community need, if any, for such a deterrent
in respect to the particular type of offence involved.”
34 Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287.
| Determination of Sentences: Principles, Policy and Practice | 314 |
accumulation and the study of many pre sentence reports can lead
to a realistic, rather than a merely theoretical, re-examination of the
entire philosophy of punishment.”
The Congress of the Institutional Penal and Penitentiary Commission
in Brussels held in 1951 recognised the utility of pre-sentencing
reports and some of the resolutions reproduced below indicate the
scope and content of such reports likely to be helpful in the
sentencing process:
1. In the modern administration of criminal justice, a pre sentence report covering not merely the surrounding circumstances of the crime but also the factors of the constitution, personality, character and socio-cultural background of the offender is a highly desirable basis for the sentencing, correctional and releasing procedures.
2. The scope and the intensity of the investigation and report should be adequate to furnish the judge with enough information to enable him to make a reasoned disposition of the case.
3. In this connection it is recommended that criminologists in various countries conduct researches designed to develop prognostic methods.
4. It is further recommended that the professional preparation of judges concerned with peno-correctional problems include training in the field of criminology35
In India, however, there is no such provision in the laws relating to
the administration of criminal Justice except those relating to
juvenile offenders. The issue was considered by the Indian Jails
Committee which opposed the kind of arrangement as in the USA in
view of the peculiarities of the Indian Context in the following words:
“Objection to this is that apart from duplication of the work which it
involved, it would be too early to judge the effect of conviction and of
.
35 Supra Note 32, p. 357.
| Determination of Sentences: Principles, Policy and Practice | 315 |
yet unpronounced sentence of the accused. In some States of
America an attempt has been made to get over this difficulty by
appointing in every court an officer whose duty it is after the
previous guilt has been established to make inquiries and to furnish
the judge with the information including a report on his mental
condition which will enable to award punishment wisely and
equitably. The system is said to work satisfactorily in the USA
although even there it was admitted that attempts had been made,
though successful, to influence the court’s officers in favour of or
against the prisoner. In this country we do not think that such a
system would have any chance of success. The many religious and
social gaps which exist in India would inevitably lead to an
unevenness in the officers reports even if direct corruption could be
guarded against and we do not think that it would be wise to imitate
the American system in this respect. At the same time, it does seem
possible through the instrumentality of the public prosecutor,
generally an Advocate of long standing and position to lay before the
court, after the questions of the prisoner’s guilt has been determined,
such reliable information as would enable the court to adjust its
sentence to the needs of the case.”
In the absence of any pre-sentence reports, courts in India have to
fix the punishments on the basis of whatever inadequate information
they receive about the offender in the course of the actual trial. The
Supreme Court has lamented more than once over this kind of
unsatisfactory state of affairs. In the case of P.K. Tejaniv. M.R.
Dange36
36 (1974) 1 SCC 167.
held that, “Finally comes the post-conviction stage where
the current criminal system is the weakest. The court’s approach has
at once to be socially informed and personalised. Unfortunately, the
| Determination of Sentences: Principles, Policy and Practice | 316 |
meaningful collection and presentation of Penological facts bearing
on the background of the individual, the dimension of damage, the
social milieu and what not- these are not provided for in the code
and we have to make intelligent hunches on the basis of materials
adduced to prove guilt..” Referring to the lack of opportunities for the
consideration of sentencing issues in trial courts, the Supreme Court
observed in RamashrayaChakravartiv. State of M.P.37
There is no doubt that the punishment has been liberally fixed in the
code and the pure and simple basis is over deterrent attitude. Its
draconian nature has been voiced against by many authorities on
the subject. Even the authors of the code were conscious of over long
terms of punishment and anticipated revision thereof shortly. The
question that when prescribed punishments are generally only
maximum and in consequence leave scope for adjustment to different
thinking and different circumstances of individual cases, can we not
allow these to stand, may well be anticipated. In this connection, the
researcher feels that Beccaria has given a very sound argument by
way of reply. He says that the very severity of punishment leads man
to dare so much the more to escape it, according to the greatness of
that, “Trial
Courts in this country already overburdened with work have hardly
any time to set apart for sentencing reflection. This aspect is missed
or deliberately ignored by the accused lest a possible plea for
reduction of sentence may be considered as weakening his defence.
In a good system of administration of justice, pre- sentence
investigation may be of great sociological value.”
5.7.1 Rationale behind Maximum Punishment
37 (1976) 1 SCC 281.
| Determination of Sentences: Principles, Policy and Practice | 317 |
the evil in prospect and many crimes are committed to avoid the
penalty of a single one.38
When maximums are at a high level the judge is naturally to use his
discretion for deciding individual cases. Unfortunate thing, however,
is that no guiding principles have been laid down whereby this
discretion may be exercised. So can it be possible that some judge
may misuse his discretion? Say for example, a corrupt judge comes
to occupy the chair and the offender does not meet the expected
demand of the judge. In such circumstances the possibility of the
abuse of power cannot be ruled out and the judge may impose
unnecessarily heavy punishment simply because the maximum laid
down in the code enables him to do so. In view of this, it does not
seem advisable to leave wide discretion, specially when no directives
for use thereof have been specified.
When punishment provision is high the natural urge with the
offender is to sweep away the evidence of the crime so that he is not
detected and put to punishment. Instead of stopping short at lower
crime, say for stealing away money, he may kill the person who has
seen him stealing or has caught him red handed. Since such
situations cannot be ruled out, it will not be a wise policy to keep the
maximum at very high level and thereby take risks which can be
avoided.
39
38 Beccaria, On Crimes and Punishment, W.O. Little and Co., Albany, (1872),
p. 43. 39 Sutherland and Cressy, Principles of Criminology, Rowman and Littlefield
Publishers, Oxford, (1992),p. 382.
5.7.2 Sentence Hearing
| Determination of Sentences: Principles, Policy and Practice | 318 |
Under the Criminal Procedure Code, 1973, Sessions Courts and
magistrate trying warrant cases have to give hearing to the accused
on the question of sentencing after finding him guilty of the offence40
The nature and scope of the provision of Section 235(2) of the
Criminal Procedure Code, 1973, which deals with presentencing
hearing, was explained by the Supreme Court in Santa Singh v. State
of Punjab.
.
Though the system based on pre-sentence reports is yet to come, the
new provisions may at least give some scope to the sentencing issues
in criminal courts in India.
41
40 Section 235 and 248 of Code of Criminal Procedure, 1973. Section 235 of
Code of Criminal Procedure, 1973 states that, “Judgment of acquittal or conviction.
(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”
Section 248 of the Code of Criminal Procedure, 1973, If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal.
Where, in any case under this Chapter, the Magistrate finds the accused guilty, hut does not proceed in accordance with the provisions of section 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law.
Where, in any case under this Chapter, a previous conviction is charged under the provisions of Sub-Section (7) of Section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon;
Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under Sub-Section (2).
41 (1976) 4 SCC 190.
It was held that the provision was mandatory and failure
to give a hearing to the accused before the sentence is pronounced
vitiates the sentence and it is not just an irregularity curable by
Section 465 of the Criminal Procedure Code. The hearing implies
opportunity to place full and adequate material before the court and,
| Determination of Sentences: Principles, Policy and Practice | 319 |
if necessary, to lead evidence. Despite the mandatory provisions
contained in Section 235(2) of the Code of Criminal Procedure, 1973
and the above cited ruling of the Apex court, the courts quite often
take up the pre sentencing exercise in a somewhat casual manner as
if it was just a meaningless formality. In Anshad v. State of
Karnataka42
Criminal Sentencing specifies the form in which justice shall be
meted out to convicted defendants. Today it is characterized by what
appears to be arbitrary disparities. Some criminals get very harsh
sentences; many receive grossly different sentences for essentially
equivalent crimes; and a shockingly large number go unpunished.
Moreover, the decisions of the courts and of parole boards have gone
largely unmonitored. These conditions have weakened the system’s
credibility and nurtured cynicism among defendants.
, the Supreme Court criticised the sessions judge for
giving the sentencing decision on the day of conviction itself and even
this was done in a cryptic manner in just one paragraph of the
judgment. As pointed out by the court, the trial judge completely
ignored the purpose of Section 235(2) which displayed lack of
sensitiveness on his part as regards sentencing.
5.8 CONSIDERATION FOR DETERMINING PUNISHMENT
43
One difficult problem relating to the sentencing process is the lack of
uniformity in the quantum of punishment given by different courts
for the same or similar offences. Obviously, it would be unreasonable
to expect uniformity of a very high degree since penology is not the
kind of discipline where a readymade formula for a precise nature
can be applied to meet the various situations, nor do all judges and
42 (1994) 4 SCC 381. 43 Report of The Twentieth Century Fund Task Force on Criminal Sentencing,
Fair and Certain Punishment, McGraw-Hill Book Company, New York, (1976), p. vii.
| Determination of Sentences: Principles, Policy and Practice | 320 |
magistrates possess the same attitude while sentencing, since they
are bound to be influenced by their own values and personalities. In
this connection the following observations of Sheldon Glueck are also
pertinent, to mention that, “… it is naïve self-confidence that makes
a judge, or criminologist, or psychiatrist, or probation officer assume
that he can detect the minutest details of difference of personality,
character, motivation, socio-economic background and other subtle
factors and forces that distinguish one offender from another, and on
top of that determine the exact nature and amount of correctional
rehabilitative treatment suited to the individual’s case and to that
case alone. Only God can do that; and since judges are not gods, we
get the following practical results in the ‘individualisation of
sentences.”44
In the matter of punishment for offence committed by a person, there
are many approaches to the problem, keeping in mind the purposes
and theories related to punishment. On the commission of crime,
three types of reactions may generate; the traditional reaction of
universal nature which is termed as punitive approach. It regards
the criminal as a notoriously dangerous person who must be inflicted
severe punishment to protect the society from his criminal assaults.
Under the punitive approach, the rationalization of the punishment
is based on retributive and utilitarian theories. Deterrent theory
which is also a part of the punitive approach proceeds on the basis
that the punishment should act as a deterrent not only to the
offender but also to others in the community. The court in the case
of State of M.P. v. Kashiram,
45
44 Supra Note 32, pp. 398-399. 45 2009 Cri.L.J 1530 SC.
observed that, ‘the Court will be failing
in its duty if appropriate punishment is not awarded for a crime
which has been committed not only against the individual victim but
| Determination of Sentences: Principles, Policy and Practice | 321 |
also against the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but it
should conform to and be consistent with the atrocity and brutality
with which the crime has been perpetrated, the enormity of the crime
warranting public abhorrence and it should “respond to the Society’s
cry for Justice against the criminal”.
The other approach is the therapeutic approach. It regards the
criminal as a sick person requiring treatment, while the third is the
preventive approach which seeks to eliminate those conditions from
the society which were responsible for crime causation. The
therapeutic approach aims at curing the criminal tendencies which
were the product of a diseased psychology. There may be many
factors, including family problems. We are not concerned with those
factors as therapeutic approach has since been treated as an
effective method of punishment which not only satisfies the
requirements of law that a criminal should be punished and the
punishment prescribed must be meted out to him, but also reforms
the criminal through various processes, the most fundamental of
which is that in spite of having committed a crime, he should be
treated as a human being entitled to all the basic human rights,
human dignity and human sympathy. It was under this theory that
the Apex court in a stream of decisions, projected the need for prison
reforms, the need to acknowledge the vital fact that the prisoner,
after being logged in jail, does not lose his fundamental rights or
basic human rights and that he must be treated with compassion
and sympathy.46
46 Sunil Batra (I) v. Delhi Administration, AIR 1978 SC 1675, Charles Sobraj v.
Superintendent, Central Jail, Tihar, AIR 1978 SC 1514.
| Determination of Sentences: Principles, Policy and Practice | 322 |
Here in India, statutory provision for psychotherapic treatment
during the period of incarceration in the jail is not available, but
reformist activities are systematically held at many places with the
intention of treating the offenders psychologically so that he may not
repeat the offence in future and may feel repentant of having
committed a dastardly crime. It was also stated in the case of Rijov.
State of Kerala,47 that, “of course, criminals should be punished.
Therefore, complete therapeutic approach may not be possible.
Moreover, there are no sufficient facilities available to adopt that type
of approach in full measure”. In the case of Gurmukh Singh v. State
of Haryana48
(a) Motive or previous enmity;
in a conviction the Supreme Court laid down the
following principles for awarding punishment: “these are some
factors which are required to be taken into consideration before
awarding appropriate sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each case has to be
seen from its specific perspective. The relevant factors are as under:
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight;
47 2010 Cri.L.J 1315 Ker (DB). 48 2010 Cri.L.J 450 SC.
| Determination of Sentences: Principles, Policy and Practice | 323 |
(h) The nature and size of the weapon used for inflicting the injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
It has been very aptly indicated in Dennis CouncleMCG Dauthav.
State of California,49
49 402 US 183: 28 l d 82D 711.
that, ‘no formula of a full proof nature is possible
that would provide a reasonable criterion in determining a just and
appropriate punishment in the infinite variety of circumstances that
may affect the gravity of crime. In the absence of any full proof
formula which may provide any basis for reasonable criteria to
correctly assess various circumstances germane to the consideration
of gravity of crime, the discretionary judgment in the facts of each
case, is the only way in which such judgment may be equitably
distinguished’.
5.8.1 Factors Relevant for Sentencing
The Sentencing process requires consideration of both aggravating
and mitigating factors. At its most basic, it involves considering:
- What sentence does seriousness of the offence itself merit?
| Determination of Sentences: Principles, Policy and Practice | 324 |
- Can that sentence be reduced in light of mitigation relating to the offender?
- Role of Discretion
- Considering the proportionality Quotient etc.
5.8.1.1 The Classification and Measurement of Seriousness
Seriousness determines whether either of the sentencing thresholds
has been crossed; indicates whether a custodial, community or other
sentence is the most appropriate; and is the key factor in deciding
the length of a custodial sentence, the onerousness of requirements
to be incorporated in a community sentence and the amount of any
fine imposed50
Sr. No.
.
In modelling the sentencing guidelines the major problem which
seeks concern is how to design categories which accurately reflect
case ‘seriousness’. The concern is how the contents of one box differ
from the contents of the next box or how does one ‘level’ or ‘type’ of
robbery differ in seriousness from another? The table below displays
the methods of assessing seriousness in few countries:
Country Determining Seriousness
1. United States A software programme, developed to implement the United States Federal Sentencing Guidelines, which calculates a seriousness score for each case, taking into account a formidable range of data.
2. European Jurisdictions They have narrative descriptions of the factors which affect the seriousness written into sentencing legislation.
3. England and Wales David Thomas in 1999 compiled a huge loose leaf compendium which can be read as jurisprudence of how judges in the jurisdiction have assessed seriousness. Morrison in 2000 produced a similar encyclopaedia for Scotland
50 Supra Note 3, p. 293.
| Determination of Sentences: Principles, Policy and Practice | 325 |
More recently, the Sentencing Guidelines Council has issued Final Guidelines on the Overarching Principles of Seriousness.
There are very large numbers of factors which may be taken into
account in assessing seriousness. There is considerable
disagreement internationally about what factors are and how they
should be taken into account. Some jurisdictions, such as England
and Wales, allow judges considerable discretion in assessing
seriousness. At the other extreme, the Federal Sentencing Guidelines
produced by the US Sentencing Commission have effectively
produced an objective definition of seriousness by limiting the range
of factors which can be taken into account and quantifying the effect
on sentence of these factors. It is argued that the guidelines have
produced injustice by treating all different cases in a uniform
pattern. Many judges and academicians are unhappy with the
guidelines because of its quantitative approach to seriousness which
fails to consider the relevant factors involved51
Culpability is the initial factor in determining the seriousness of an
offence. There are generally four levels of culpability:
.
Culpability as a Factor in Determination of Seriousness
52
(a) Intention to cause harm
(b) Recklessness as to whether harm is caused
(c) Knowledge of specific risks entailed by actions but does not intend to cause the harm that results
(d) Negligence
Culpability is greater if: Culpability is lower if:
(i) The offender deliberately (i) A greater degree of provocation 51 Supra Note 9, p. 159. 52 Supra Note 3, p. 294.
| Determination of Sentences: Principles, Policy and Practice | 326 |
causes more harm than is necessary for the commission of offence; or
(ii) The offender targets a victim who is vulnerable
than normally expected
(ii) Mental illness or disability
(iii) Youth or age, where it affects the responsibility of the individual defendant
(iv) The fact that the offender played a minor role in the offence.
Previous Conviction as a factor in Determination of Seriousness
It is argued that the court must treat each previous conviction as an
aggravating factor if (in the case of that conviction) the court
considers that it can reasonably be so treated having regard, in
particular, to53
(a) The nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) The time that has elapsed since the conviction.
In other words, an offence is to be regarded as more serious if
committed by someone with relevant previous convictions (relevance
depending on how old the previous convictions are, and how similar
in type are to the present offence). It remains the case that a
custodial sentence may be imposed because of previous failures to
respond to non-custodial sentences. It was held in an English case of
Bowles54
Opinions about Offence-Seriousness are:
that, ‘it should be borne in mind, however, that even if the
offender has a bad record, the defence may argue for a non custodial
sentence to give the offender ‘one last chance’ to break the cycle of
offending.
55
53 Id, p. 297. 54 [1996] 2 Cr App R (S) 248. 55 Supra Note 15, pp. 105-107.
| Determination of Sentences: Principles, Policy and Practice | 327 |
• Violent offences are usually rated as most serious, followed by property, offences against individuals and then white collar crimes.
• Older people and woman tended to regard all crimes as somewhat more serious than younger people and men.
• People with less formal education and living in smaller communities tend to regards all crimes as more serious.
• Crucial difference may be that between premeditated or planned offences and sudden or Impulsive offences. These differences in culpability exert a powerful effect on sentencing practice and may well influence people’s judgment of crime.
Public opinion offer general assistance to any policy maker pondering
on the comparative seriousness rankings of different offences. Some
offences have come to be regarded as much more serious due to
greater publicity. One such example is causing death by rash and
negligent driving: at one time this was treated as a mere motoring
offence, but increasing realization of the loss and devastation has led
to public concern to which the courts have responded by increasing
levels of sentence.
5.8.1.2 Role of Discretion in Sentencing
There is an absence of articulated criteria for determining sentences.
Judges are given vast discretion in sentencing offenders, and the
parole boards have like discretion in releasing them. Under the
current sentencing system, the state legislature rarely decides what
sentence a “typical” violator of a criminal statute should receive.
Instead they generally determine only what maximum and minimum
sentence for a given offence will be.56
56 Supra Note 22, p. 11.
5.8.1.2.1 Judicial Discretion
| Determination of Sentences: Principles, Policy and Practice | 328 |
What is construed as fair or just depends on dominant ideas about
social justice and on the theoretical approach which is taken to
understanding the notion of punishment itself. The principles of laws
most likely to lead to the ‘best’ justice are, consequently, a matter of
continual debate but there is a consensus that it would be unjust if
an agency or individual could use their power to impose and
implement whatever punishment they wished to impose. Justice in
sentencing then, requires at the very least that those individuals who
undertake the sentencing of convicted criminals are constrained by a
set of principles, be they moral, legal or religious and by framework
of rules. Further, in a democracy, sentencing may not be perceived
as just if those rules and principles are not acceptable to the
electorate. The proper control and exercise of discretion is
consequently, crucial in the quest for justice in sentencing and
punishment57
The force of Justice Cadozo’s statement is as applicable to the
judiciary as to anyone else: ‘the great tides and currents which
engulf the rest of the men do not turn aside in their course and pass
the judges idly by’.
: “Discretion is one of the most contentious concepts in
criminal justice and related circles because it is so important and yet
so difficult to define…Indeed it is the day to day discretionary action
of police officers, prosecutors, defence lawyers, judges, psychiatrists,
prison, probation and immigration officers among others, which are
‘stuff of justice’ and which makes for justice or injustice”.
58
57 Susan Easton and Christine Piper, Sentencing and Punishment: The Quest
for Justice, Oxford University Press, New York, (2005), p. 30. 58 Supra Note 10, p. 173.
If we consider discretion to be operating on a
continuum from complete to no discretion available to those who
must make sentencing decisions in individual cases, it can be argued
| Determination of Sentences: Principles, Policy and Practice | 329 |
that outcomes at both ends are unjust. At one extreme, sentencing is
unjust because there are no constraints whatsoever on the sentence
who has complete discretion to make decisions, if he so wishes,
based on personal prejudices and whims.
Since K.C. Davis published Discretionary Justice in 1969 a strand of
academic thinking has regarded discretion, as he did, as the major
source of injustice and something to be confined, structured and
checked. At the other end of the spectrum is the sentence who has
no discretion because the rules and principles are so tightly drawn,
with all potential factors accounted for, that the sentence is simply
the technician who feeds in the data and reads the answer, in this
case the sentence. This too might be viewed as potentially unjust in
that it could not take account of any individual circumstances that
had not been foreseen. The logical conclusion is that justice is to be
seen between the two ends of this discretion spectrum59
Magistrates and other judges enjoy a considerable discretion as to
the choice of sentencing aim, to assessment of seriousness of the
offence, to the admission of mitigating and aggravating factors, and
to the choice of penalty. Discretion is founded upon the immensely
powerful, though arguably mythical, notion of judicial independence:
a notion that in most countries require only that government should
not interfere in the individual case. In various jurisdictions it has
been inflated, at least in the minds of the judiciary, to suggest that
any attempt by government to influence sentencing is
unconstitutional. Despite the double validity of this extreme
interpretation of judicial independence, it has been acted as an
important bulwark against legislative attempts to limit or structure
judicial powers of sentencing. Even where structures have been
.
59 Supra Note 57, p. 31.
| Determination of Sentences: Principles, Policy and Practice | 330 |
erected they leave sentencers with considerable latitude to determine
exactly how any given sentence should be implemented. The moment
of sentencing has an important dramatic impact that might be lost in
the intricacies of justifying one penalty over another or cataloguing
the factors taken into account in mitigation or aggravation.60
Generally, there are few if any rules, standards or guidelines,
formally established through mandatory legislation, rule making, or
regulation, to guide the exercise of judicial or administrative
sentencing discretion. Judicial discretion is thus very broad in most
jurisdictions, with judges having considerable flexibility to tailor the
sentence to individual defendant. It is also believed that in those
jurisdictions where the sentencing structure is more indeterminate,
judicially imposed sentences tend to be longer. The area over which
the administrative discretion may be exercised is also very wide.
Almost every state has a parole or early release system in which an
administrative agency is granted discretionary authority to release
the prisoner from confinement after a specific part of his judicially
imposed term or maximum has been served or at any time after the
prisoner has begun serving his sentence. The difference between the
earliest possible time a prisoner becomes eligible for release and the
latest possible time he may be released under a given sentence tends
to be vast, especially where long sentences are imposed by the
courts. Also, to mention a large proportion of offenders are placed on
probation simply because there is no room for them in overcrowded
prisons. Those whom the judge decides should be imprisoned are
often given sentences with relatively high maximums, on the
understanding that the parole boards will release them earlier if the
circumstances warrant it. The passing of the responsibility for the
60 Supra Note 16, p. 186.
| Determination of Sentences: Principles, Policy and Practice | 331 |
length of the sentence to the parole board gives the board significant
flexibility to tailor, it is presumed, that the length of the confinement
to the prisoner’s needs and performance.61
How far rules should constrain the sentence is a matter of debate.
There are constitutional issues about the independence of the
judiciary on the one hand and the implementation of democratically
decided policy on the other, but the idea that discretion is the
opposite of formal justice, arising from debates around the concept of
the rule of law, ‘has spawned a series of by now familiar criticisms’.
Foremost among the criticisms is the argument that a wide
sentencing discretion leads to inconsistency of sentencing.
62
61 Supra Note 22, pp. 13-15. 62 Supra Note 57, p. 32.
A
further argument against the availability of wide discretion is that
discretion diminishes the possibility of accurately predicting
sentence outcome: sanctions cannot give a clear deterrent message
to past or potential offenders, solicitors and barristers are unable to
advise their clients effectively. Further, if judges or magistrates tend
to sentence at the top end of what is legally permissible, ‘over
sentencing’ occurs. This can lead to a crises of resources for the
government. Too wide a sentencing discretion could also make it
difficult for a democratically elected government to impose its desired
sentencing policy. In practice, sentencing discretion and resulting
sentencing outcomes must be a government concern: the policy
imperatives and the constraints- the techniques and the tools by
which sentencing discretion is ‘structured’ can take many forms. The
more obvious ones are the rules relating to the availability and choice
of punishments, and to the maximum and minimum amounts of
| Determination of Sentences: Principles, Policy and Practice | 332 |
punishment allowed in a particular jurisdiction. They might also be
financial or administrative constraints63
Lord Reid suggested in D.P.P v. Ottewell
.
The problematic nature of this exercise also contributes to the
difficulty of undertaking research in this area. One solution has
been to analyse cases in terms of particular factors accepted as
important in sentencing to see whether courts are imposing
similar sentences on similar kinds of offender. A problem arises if
differences are ‘proven’: it is vacuous to conclude that disparity
has been discovered and that a uniform policy must be adopted if
there is no indication of what the right policy is. Research results
are also countered with the argument that no two cases are the
same and that research cannot pick up the crucial differences.
On the other hand, ‘Magistrates and judges… place a particular
value upon their experience in sentencing. Now if this experience
is to be of value, then all cases cannot be unique, they must be
comparable in some respects.’ Whatever the result of such
exercises and whether they focus on geography, race, gender or
class, whether disparity is proved to ‘actually’ happen or whether
there is only a perception that it does, the policy concern is the
same, whether the legitimacy of the sentencing process is being
undermined in the eyes of the public.
64
63 Id, p. 33. 64 1968 (3) All E.R.
, that every judge would
award the same punishment of each offence is not supported by
evidence. It was rather tentatively suggested by the Attorney General
that there is a ‘tariff’ for each kind of offence which is varied upwards
or downwards according to the circumstances of the offence and the
character of the accused. Offences of a particular kind of offence
| Determination of Sentences: Principles, Policy and Practice | 333 |
which is varied upwards or downwards according to the
circumstances of the offence and the character of the accused.
Offences of a particular kind, however vary so vastly in gravity that
there cannot and should not be any ‘normal’ sentence and there is
no workable standard by which to judge whether any particular
sentence is extended beyond what is ‘normal’.
Sometimes, particular sentences are passed by judges according to
their assessment of what will be of benefit to the public generally.
Lord Donovan expressed it thus:
“Judges have always felt, themselves entitled to deal with a persistent offender by increasing the sentence which they would have passed if he were not. This is not to punish the offender again for his past crimes. Nor is it always primarily for the protection of the public. It may simply be because in the judge’s view the sentences passed for previous offences have proved to be an insufficient deterrent and that the effect of a longer sentence must be tried perhaps in the offender’s own interest; or it may be that repetition has itself increased the gravity of the offence. Eventually in some cases a stage is reached where it becomes clear that progressively increasing sentences are not a deterrent; and the protection of the public against a persistent offender then comes to the forefront of the considerations which the judge must take into account.”
Many a time, judges award sentences that may be called exemplary
punishment for the same crime simply because such ‘crimes’ have
become prevalent. There may be confrontations with the police or
trade union activities like ‘bandhs’ (Lockouts) which, in the opinion
of the judge, need to be curbed in the interest of law and order. This
could end up being plain unjust. Lord Asquith has an interesting
comment to make on this: “… this may be expedient; it may even be
imperative. But one thing it is not: it is not just. The guilt of the man
who commits a crime when it happens to be on the increase is no
greater than that of another man who commits the same crime when
| Determination of Sentences: Principles, Policy and Practice | 334 |
it is on the wane. The truth is that in such cases the judge is not
administering strict justice but choosing the lesser of two practical
evils. He decides that a moderate injustice to the criminal is a lesser
evil than the consequences to the public of a further rise on the
crime-wave.” This kind of value judgment also affects the difference
in approach between one judicial decision and another.65
Aggravating circumstances surrounding the crime itself
5.8.1.2.2 Range of Judicial Discretion in Considering Aggravating and Mitigating Factors
The sentencing judge shall conduct a sentence hearing for purposes
of establishing mitigating and aggravating factors set forth by the
defence and the prosecution. The decisions about mitigating and
aggravating factors actually define the detail of any sentencing
framework grounded in proportionality. It is the ways in which
sentencing practice deviates from the principle that the punishment
should fit the crime that constitutes the interesting Penological
questions.
(1) Aggravating Factors given Consideration by Judges
large number of victims, particularly vulnerable victim (e.g., blind old newsstand operator, etc.), desire for personal profit, pleasure-seeking ("thrills"), leadership of the criminal enterprise, unwillingness to make restitution, large sum of money (or value of goods) stolen, victim treated particularly cruelly during course of offense.
Aggravating circumstances relating to the criminal's background
on probation or parole at time of crime, organized crime connections, large number of prior offenses, large number of prior incarcerations, prior violations of probation and/or parole, defaults on prior court appearances, social class.
Aggravating circumstances relating to the criminal's conduct at and about the time of
perjury at trial, insistence on going to trial, refusal to cooperate with authorities,
65 Supra Note 10, pp. 179,181.
| Determination of Sentences: Principles, Policy and Practice | 335 |
the trial contemptuous behaviour at trial, refusal to testify against co-defendants, refusal to cooperate in making future cases (testifying before grand jury, etc.), high sentence recommendation by district attorney, unsympathetic recommendation by probation department, lack of contrition.
Aggravating circumstances relating to the criminal's future dangerousness
other similar crimes committed after this one (while on bail), continuing drug problem, refusal to participate in therapy, relative youth of offender, race, need to deter others in community from engaging in similar conduct, desire to incapacitate particular offender for protracted period.
Some other relevant factors which aggravate offence seriousness:66
1. The defendant played a minor role in the crime.
(a) Where the victim is especially vulnerable (b) Breach of Trust (c) Premeditation and Professionalism (e) Group Offending (f) Offending whilst on bail (g) Offence Prevalence (h) Racially Motivated Offending
(2) Mitigating Factors
The following may be considered by the sentencing judge as
mitigating factors:
2. The defendant committed the crime under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense but which significantly affected his conduct.
3. The defendant exercised extreme caution in carrying out the crime.
4. The victim or victims provoked the crime to a significant degree by their conduct.
66 Supra Note 1, pp. 57-58.
| Determination of Sentences: Principles, Policy and Practice | 336 |
5. The defendant believed he had a claim or a right to the property.
6. The defendant was motivated by a desire to provide necessities for his family or himself.
7. The defendant was suffering from a mental or physical condition that significantly reduced his culpability for the offense.
8. The defendant because of his youth or old age, lacked substantial judgment in committing the crime.
9. The amounts of money or property taken were deliberately very small and no harm was done or gratuitously threatened against the victim or victims.
10. The defendant, though technically guilty of the crime, committed the offense under such unusual circumstances that it is unlikely that a sustained intent to violate the law motivated his conduct.
5.8.1.3 Consistency as an Important Value in Sentencing
All judges would accept that it is an important aim of justice that like
cases be treated alike. Judges do not refer to data about the past
sentencing practices of the court; they only occasionally refer to
other decided cases. Judges do not articulate what makes the case
the same and what makes it different. The reasons for the same
are67
(a) They do not do it because there is no formal requirement for them to do so.
:
(b) More importantly, it is an impossible task because there is no systematic structure to which they can refer for assistance.
(c) Consistency is an overarching norm or principle and judges are uncomfortable with this.
5.8.1.4. Proportionality Principle
67 Supra Note 9, p. 171.
| Determination of Sentences: Principles, Policy and Practice | 337 |
The core of proportionality doctrine is ‘how deserved sentences
should be decided in ordinary cases’. Proportionality Principle has a
major role in sentencing guidelines: the penalties grossly
disproportionate in relation to the gravity of the offence were
perceived as unfair.
5.8.1.4.1 Rationale of Proportionality
The theory holds that, the primary basis for scaling punishments,
should be the principle of proportionality requiring the severity of the
penalty to be proportionate to the seriousness of the criminal
conduct of which the defendant has been convicted. A variety of
possible justification have been suggested, some based on crime
prevention, and others based instead on fairness grounds related to
the censuring features of punishment.68
The argument for proportionality involves the following three steps:
69
1. The State’s sanctions are against proscribed conduct should take a punitive form; that is visit deprivation in a manner that expresses censure or blame.
2. The severity of a sanction expresses the stringency of the blame.
3. Hence, punitive sanctions should be arrayed according to the degree of blameworthiness of the conduct.
Also, Von Hirch allows some increases of penalty for past crimes on
the rationale that penalties for a first offence should be somewhat
less than is deserved. Because a first offence may be out of character
and result from extenuating situational conditions, first offenders
may be less blameworthy than it appears and should be given the
68 Andrew Von Hirsch, Proportionate Sentencing, Oxford University Press, New
York, (2005), p. 132. 69 Supra Note 28, p. 125.
| Determination of Sentences: Principles, Policy and Practice | 338 |
benefit of the doubt. For some number of subsequent offences, a
gradually disappearing discount may be appropriate. Thereafter,
each offence should receive its full deserved, proportionate
punishment.70
The first account of the principle of proportionate sanctions was
utilitarian, and was provided over two centuries ago by
CesareBeccaria and Jeremy Bentham. These theorists advocated a
tariff of graded penalties, based on objective of crime prevention,
especially general deterrence. When people offend, Beccaria and
Bentham argued, it is preferable that they commit lesser offences
rather than serious crimes. Hence, the State should grade its
prescribed sanctions according to the seriousness of offences, so that
potential offenders would be induced (to the extent that they decide
to offend at all) to prefer petty thefts over burglaries, burglaries over
violent crimes and so forth, Failure to observe the principle of
proportionality in sentencing would result in a misdirected structure
of disincentives: those choosing to offend might as soon commit
grave crimes as lesser ones. When the proportionality principle is
thus defended on grounds of crime preventive efficacy and nothing
more, it loses its status as an independent ethical requirement and
remains subject to whatever dilutions appear to be needed in the
name of crime control.
5.8.1.4.2 Beccaria and Bentham’s Deterrence Argument
71
70 M. Tonry, “Proportionality, Parsimony, and Interchangeability of
Punishments”, A Reader on Punishment, Oxford University Press, New York, (1994), p. 143.
71 Supra Note 68, pp. 132-133.
5.8.1.4.3 The Inhibition-Reinforcement Argument
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Continental penologists, even when utilitarian in general outlook,
have tended to recognize the limitations of general deterrence as a
guide to sentencing policy. As an alternative, they have stressed the
role of punishment as a reinforcer of citizens, moral inhibitions
against crime. The criminal sanction, Johannes Andenaes asserts, is
a 'concrete expression of society's disapproval' of criminal acts, and
thereby 'creates conscious and unconcious inhibitions against
crime'. The norm-reinforcing function is sometimes said to provide
the basis for the principle of proportionality. The German criminal
law scholar Claus Roxin contends, for example, that a penalty
structure in which penalties are kept commensurate with the gravity
of crimes will be perceived as more just, and being so perceived, will
better strengthen citizens self-restraint and respect for law.
Disproportionate sanctions are said to risk weakening the moral
influence of the penalty structure72
The principle of proportionality does not, in our judgment, rest
primarily on crime prevention consideration. It is grounded, instead,
on the blaming character of punishment. Punishing someone
consists of inflicting a deprivation on him, because he has
purportedly committed a wrong, under circumstances and in a
manner that conveys disapprobation of the offender for his wrong.
The visitation of censure, is a central justifying feature of
punishment. The requirement of proportionate punishment is,
instead, derived directly from the censuring implications of the
criminal sanction. Once one has created an institution with the
.
5.8.1.4.4 The Censure Argument
72 Supra Note 68, p. 133.
| Determination of Sentences: Principles, Policy and Practice | 340 |
condemnatory implications that punishment has, then it is a
requirement of justice, not merely of efficient crime prevention, to
punish offenders according to the degree of apprehensibility of their
conduct. Disproportionate punishments are unjust not because they
possibly may be ineffective or counterproductive, , but because they
purport to condemn the actor for his conduct and yet visit more or
less censure on him than the degree of blameworthiness of that
conduct would warrant73
BRITAIN
Criminal Justice Act 2003- Section 143(1)
.
The argument in favor of the principle of proportionality is, in brief,
the following: since punishment does and should covey blame, its
amount should reflect the degree of blameworthiness of conduct.
This argument, however, needs to be articulated more fully. Stated
schematically, the case for proportionality involves the following
three steps:
Step 1: The state's sanctions against specified kinds of injurious conduct should take a punitive form; that is, visit deprivations in a manner that expresses censure or blame.
Step 2: The severity of a sanction expresses the stringency of the blame.
Step 3: Hence, punitive sanctions should be arrayed according to the degree of blameworthiness (i.e. seriousness) of the conduct.
TABLE: COMPARISON OF PROPORTIONALITY PRINCIPLE PROVISIONS
In considering the seriousness of any offence, the court must consider the offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.
UNITED STATES Construction of sentencing grids which classify offences into various groups and
73 Id, pp. 134-135.
| Determination of Sentences: Principles, Policy and Practice | 341 |
then assign guideline sentences to them, leaving the courts with more or less discretion.
FINLAND
Article 6 of Penal Code
Punishment shall be measured so that it is in just proportion to damage and danger caused by the offence and to the guilt of the offender manifested in the offence.
SWEDEN
Swedish Criminal Code- Chapter 29
Sentences should be based on the penal value of the offence: the penal value is determined with special regard to the harm, offence or risk which the conduct involved, what the accused realized or should have realized about it, and the intentions and motives of the accused.
5.8.1.4.5 Scaling Proportionate Sanctions
Professor Morris's view is one he calls 'limiting retributivism' a mixed
model somewhere between full retributivism and pure penal
utilitarianism. Desert, he contends, supplies only the upper (and
possibly lower bounds) on the severity of the penalty that can justly
be levied; within these bounds, crime prevention aims (eg. deterrent,
incapacitative or rehabilitative considerations) should be decisive.
Desert thus can serve only as a limiting, not a determining principle.
In his words:
‘Desert is not a defining principle; it is a limiting principle. The
concept of 'just deserts' sets the maximum and minimum of the
sentence that may be imposed for any offence and helps to define the
punishment relationships between offences; it does not give any
more fine-tuning to the appropriate sentences than that. The fine-
tuning is to be done on utilitarian principles’.74
Ordinal Scaling: it relates to comparative punishments, and its
requirements are reasonably specific. Persons convicted of crimes of
like gravity should receive punishments of like severity. Persons
74Id, pp. 137-138.
| Determination of Sentences: Principles, Policy and Practice | 342 |
convicted of crimes of differing gravity should receive punishments
correspondingly graded in their degree of severity. The requirements
of ordinal proportionality are not mere limits, and they are infringed
when persons found guilty of equally reprehensible conduct receive
unequal sanctions on ulterior grounds (i.e Crime prevention). Ordinal
proportionality involves three broad requirements:75
(a) The first is Parity- when offenders have been convicted of crimes of similar seriousness they deserve penalties of comparable severity. This requirement does not necessarily call for the same penalty for all acts within a statutory crime category- as significant variations may occur within that category in the conduct’s harmfulness or culpability. But it requires that once such within category variations in crime seriousness are controlled for, the resulting penalties should be of the same degree of onerousness.
(b) Rank Ordering: punishment should be ordered on the penalty scale so that their relative severity reflects the seriousness-ranking of the crimes involved.
(c) Spacing: spacing depends upon how precisely comparative gravity can be calibrated- and seriousness gradations are likely to be matters of rather inexact judgments.
Parameters of Ordinal Proportionality
1. The foremost modern attempt to establish some parameters for ordinal proportionality is that of Andrew von Hirsch and Nils Jareborg. Their approach, which deals only with crimes against individual victims, is to determine the effect of the typical case of particular crimes on the living standard of victims. The first question to be asked is what interests are violated or threatened by the standard case of the crime, and they identify four generic interests:
(i) Physical integrity: health, safety and the avoidance of Physical Pain;
(ii) Material support and Amenity: includes nutrition, shelter and other basic amenities;
75 Supra Note 28, p. 128.
| Determination of Sentences: Principles, Policy and Practice | 343 |
(iii) Freedom from humiliation or degrading treatment; and (iv) Privacy and autonomy
2. Once the nature of the interest violated has been settled, the second step is to assess the effect of violating that interest on the living standards of the typical victim. These effects are branded into four levels:
(i) Subsistence: survival with maintenance of elementary human functions- no satisfactions presupposed at this level;
(ii) Minimal well being: maintenance of a minimal level of comfort and dignity
(iii) Adequate well-being: maintenance of an ‘adequate’ level of comfort and dignity
(iv) Significant enhancement: significant enhancement in quality of life above the merely adequate level.
3. A further step is to integrate into the calculation a judgment of culpability, which in some instances may have a considerable effect on the ultimate ranking of an offence. In terms of culpability therefore, one question is the degree of purpose and awareness which the offender had (intention, knowledge etc.) and another question is the magnitude of the harm or wrong to which that mental element related. If the offender intended an assault but caused a death, one should not treat it as an intentional causing of death.
4. A further component is the remoteness of the offence from the occurrence of the harm. The law contains several offences which do not require the actual infliction of the harm concerned, such as offences of attempt. And preparatory offences (possession of an offensive weapon). A scale of offence- seriousness should discount the level of particular offences according to their remoteness from the resulting harm, but the extent of that discounting is likely to be a matter of controversy.
Therefore, characteristics which can be best considered and be applied to any conduct prohibited by the criminal law:
(i) Four or more harm dimensions: physical integrity, material support and amenity, freedom from humiliation, privacy/autonomy, integrity of the administration of justice;
| Determination of Sentences: Principles, Policy and Practice | 344 |
(ii) Living standard impact or benefit in the typical case: subsistence, minimal well being, adequate well being, enhanced well being
(iii) Map on to a seriousness scale of for example five levels (iv) Culpability: planned, impulsive, knowing, reckless,
negligent and so on; adjust level on seriousness scale accordingly
(v) Remoteness: completed, attempted, risked, preventive offence; degree of involvement or participation in the offence; adjust level on seriousness scale accordingly
(vi) Aggravation and Mitigation: assess the various factors, and adjust the level on seriousness scale accordingly; and transfer from seriousness scale to commensurate sentence
Cardinal Proportionality: There may be limits on the severity of
sanction through which a given amount of disapproval may be
expressed, and these constitute the limits of cardinal or non-relative
proportionality. Consider a scale in which penalties are graded to
reflect the comparative seriousness of crimes, but in which overall
penalty levels have been so much inflated that even the lowest
ranking crimes are visited with prison terms. Such a scale would
embody a convention in which even a modest disapproval
appropriate to low ranking crimes is expressed through drastic
intrusions on offenders’ liberties. The distinction between the ordinal
and the cardinal proportionality explains, however, why
proportionality becomes a significant constraint on the ordering of
penalties. Once the anchoring points and magnitude of the penalty
scale have been fixed, ordinal proportionality will require penalties to
be graded and spaced according to their relative seriousness, and
require comparably severe sanctions for equally reprehensible acts76
There are at least five difficulties in application of enforceability
.
77
76 Id, p. 129. 77 Supra Note 70, p.145.
:
| Determination of Sentences: Principles, Policy and Practice | 345 |
1. Strong proportionality conditions require objectification of categories of offenders and offences that are oversimplified and over inclusive.
2. Proportionality arguments are often premised on objective legal measures of desert, typically current and past crimes, rather than on the subjective degree of moral culpability expressed by the offender, under particular circumstances and conditions.
3. Strong proportionality conditions run head on into ‘just deserts in an unjust society.
4. Strong proportionality conditions presuppose that imposition of offenders deserved punishments is an overriding moral imperative rather than one of several competing ethical considerations. Punishment schemes that attach high value to proportionality necessarily ignore the differing material conditions of life, including poverty, social disadvantage etc.
5.8.1.4.6 Proportionate Non-Custodial Sanctions
Imprisonment and particularly, imprisonment for significant
durations is a severe penalty. Under a proportionality-oriented
scheme, this sanction should therefore be reserved for crimes of a
serious nature. Other, less serious offences should ordinarily be
punished by less onerous non-custodial sanctions. A properly
constructed penalty system therefore requires norms and principles
guiding the use of such sanctions.
Martin Wasik and Andrew von Hirsch sketched a model. The Wasik-
von Hirsch scheme contains the following main elements:
• Non- custodial sanctions would be graded and arranged to reflect the degree of seriousness of the crime of conviction. 'Intermediate sanctions' – that is, non custodial sanction of the middle range severity – could be employed only for crimes of medium seriousness, and not for lesser crimes.
• Substitution would be permitted among sanctions of comparable onerousness, but with policy-based limitations on how extensive that substitution may be.
| Determination of Sentences: Principles, Policy and Practice | 346 |
• There would be significant restrictions on the severity of the back-up sanctions that may be used against offenders who violate the conditions of a non-custodial sanction.
5.9 GUIDING PRINCIPLES FOR SENTENCING
Study of penal laws of our country shows that the apportionment of
the sentence is left entirely to the discretion of the judges for almost
all offences and it, therefore, happens that the sentences sometimes
passed for nearly alike offences by two different judges are grossly
disproportionate. Since the offences have been defined in general
terms, only maximum terms of punishments have been indicated.
Therefore, the judges have to apportion the quantum of punishment
according to the gravity or otherwise of the various offences within
the prescribed maximum. The judges in deciding the quantum often
find themselves in a quandary, as to the principles by which they
should regulate their discretion. The result has been inequality of
punishments awarded by different courts for the similar type of
cases, sometimes in the disregard of the established principles which
are intended to reduce inequality to a minimum. These principles are
deliberately not stated in the Indian Penal Code, 1860 or any other
statutory law so as to have binding effect on judges. Therefore, they
have adopted different principles for their own guidance; there being
no system of regular conferences for judges, differences in approach
are not discussed or reconciled. There is need to develop basic
parameters to regulate the judicial discretion.
Changed objective of punishment has created further problems in
the matter of determination of punishment. Our criminal law
especially penal code was framed in neo-classical age and its
objective was deterrence. It has now lost its former position and
engulfed by the reformatory theory. As a matter of fact, the emphasis
| Determination of Sentences: Principles, Policy and Practice | 347 |
has shifted from crime to criminal in the matter of fixing the
sentence. Sir John Buckmill said, “It is now recognized that the
hardest and the most difficult task of those who are set as judges
over the crimes of misdemeanor of their fellowmen is that most
important question i.e. what is the proper penalty. Few however, I
hear make serious study of this almost unwritten branch of criminal
jurisprudence to adjust the punishment so as to make it appropriate
should be the aim and to balance it, so that it justly fits the gravity of
the offence but does not shock the public conscience is no easy
task.”
5.9.1 Rules Governing Sentence of Death
There is no way to remedy the occasional mistake that results in the
execution of the innocent because life taken away cannot be brought
back. There is withering danger of executing the innocent. It is also
the case of the abolitionists that some people are executed despite
strong mitigating circumstances like the following:
(i) That the offence was committed under the influence of extreme mental or emotional disturbance.
(ii) The age of accused; if the accused is young or old, he shall not be sentenced to the death;
(iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(iv) The probability that the accused can be reformed and rehabilitated. The state shall by evidence prove does not satisfy the conditions;
(v) That the accused acted under the duress or domination of another person;
| Determination of Sentences: Principles, Policy and Practice | 348 |
(vi) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct78
Besides the mitigating factors, the following are the reasons for not
awarding death sentence:
.
1. The offender being under eighteen years of age.
2. There has been no intention to commit murder, the offence falling under the fourth clause of Section 300, Indian Penal Code, 1860.
3. The murder, though intentional, having been committed without premeditation, and in the heart of passion, without special brutality.
4. The murder having been committed upon grave provocation, the provocation not being both grave and sudden so as to reduce the offence to culpable homicide not amounting to murder.
5. Reasonable doubt as to the sanity of the offender at the time of committing murder, actual insanity not being proved.
6. Where murder has been committed by more than one person, and it appears that the offender acted under the instigation of another, and did not take a principal part in committing the murder.
Reasonable doubt about the age of the accused on the date of the
offence is also stated to be one of the considerations". This is not
intended to be an exhaustive statement of reasons for not passing a
capital punishment. In each case the trial judge must exercise his
own discretion with deliberation. The extreme penalty of the law
should be reserved for cases of deliberate murder, for cases where
murder is committed to facilitate the commission of some other
78 Retrieved From <http://crime.about.com/od/death/a/mitigating.htm>
Last visited on 26th March 2013 at 1:43 IST.
| Determination of Sentences: Principles, Policy and Practice | 349 |
offence or to avoid arrest for an offence, and for other heinous cases
of murder.79
Death sentence is neither an unreasonable restriction on right to life
nor is impermissible for violation of due process of law under Article
21 of the Constitution. Capital punishment or death sentence cannot
be described as unusual because that kind of punishment has been
with us from ancient times right up to the present day. The Law
The authors of the Indian Penal Code, 1860 had also wisely placed
death sentence for certain heinous crimes. The authors of the code
stated: "We are convinced that it ought to be very sparingly inflicted,
and we propose to employ it only in cases where either murder or the
highest offence against the State has been committed ... to the great
majority of mankind nothing is so dear as life, and we are of the
opinion that to put robbers, ravishers and mutilators on the same
footing with murderers is an arrangement which diminishes the
security of life.... Those offences are almost always committed under
such circumstances that the offender has it in his power to add
murder to his guilt.... As he has almost always the power to murder,
he will often have strong motive to murder, in as much by murder he
may often hope to remove the only witness of the crime which he has
already committed. If the punishment of the crime which he has
already committed be exactly the same with the punishment for
murder, he will have no restraining motive. A law which imprisons
for rape and robbery and hangs for murder, holds out, indeed, if it be
rigorously carried into effect, a strong motive to deter men from rape
and robbery, but as soon as a man has ravished or robbed, it holds
out to him a strong motive to follow up his crime with a murder."
79 Retrieved from
<http://civilliberty.about.com/od/capitalpunishment/f/penalty_murder.htm> last visited on 26th March 2013 at 14:24 IST.
| Determination of Sentences: Principles, Policy and Practice | 350 |
Commission of India, in its 35th
(a) Basically, every human being dreads death.
Report, after carefully sifting all the
materials collected by them, recorded their views regarding the
deterrent effect of capital punishment as under: In our view, capital
punishment does act as a deterrent, the main points that have
weighed with us in arriving at this conclusion:
(b) Death, as penalty, stands on a totally different level from imprisonment for life or any other punishment. The difference is one of quality, and not merely of degree.
(c) Those who specifically qualified to express an opinion on the subject, including particularly the majority of the replies received from State Government, Judges, Members of Parliament and Legislators and Members of the Bar and police officers – are definitely of the view that the deterrent object of capital punishment is achieved in a fair measure in India.
(d) Whether any other punishment can possess all the advantages of capital punishment is a matter of doubt.80
In the leading case of Bachan Singh the Supreme Court was called,
upon to decide the constitutional validity of death sentence. The
Constitution Bench, by a majority of 4:1 upheld the validity of capital
sentence but held that only in exceptional and rarest of rare cases,
death sentence can be imposed. The court laid down that in certain
and rarest rare cases, death sentence can be imposed.
The court laid down certain principles which were explained in a
subsequent decision of Machhi Singh81
1. The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;
which may be summarized as
under:
80 Retrieved from < http://www.studymode.com/subjects/death-penalty-
from-a-sociological-perspective-page1.html> last visited on 26th March 2013 at 14:27 IST.
81 (1983) 3 SCC 470.
| Determination of Sentences: Principles, Policy and Practice | 351 |
2. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the crime;
3. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances;
4. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weight and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
In Bachan Singh Case82
1. if the murder has been committed after previous planning and involves extreme brutality; or
Constitution bench considered the following
circumstances as aggravating circumstances which may call for
imposition of death penalty:
2. if the murder involves exceptional depravity; or
3. if the murder is of a member of any of the armed forces of the Union or of a member of any police force of any public servant and was committed:
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of duty as such member or public servant whether at the time of murder, he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
4. If the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the Code of Criminal
82 (1980) 2 SCC 684.
| Determination of Sentences: Principles, Policy and Practice | 352 |
Procedure, 1973, or who had rendered assistance under section 37 and section 129 of the said Code.
The constitutional validity of death sentence has been challenged
before the Supreme Court also. In Jagmohan Singh v. State of U.P83
In EdigaAnamma v. State of A.P.
.
it was argued that the 'right to live' was basic to the freedoms
guaranteed under Article 19 of the Constitution. The Supreme Court
rejected the contention and held that capital punishment cannot be
regarded as unreasonable per se or not in the public interest and
hence could not be said to be violative of Article 19 of the
Constitution. Again in Bachan Singh Case larger Bench of the
Supreme Court (majority view) held that the death sentence as per
provisions in section 302 of the Penal Code and section 354(3) of the
Criminal Procedure Code, 1973 was not violative of Articles 14, 19
and 21 of the Constitution. Justice Bhagwati (as then he was)
dissented and held: "The death penalty provided under S. 302 of the
Penal Code read with Section 354 sub-sec. (3) of the Cr.P.C. (1974) is
unconstitutional, void and is totally arbitrary and unreasonable."
The majority view has been affirmed in many cases. The present legal
position appears to be a balanced one. To have it on the statute book
but to use it rarely seems to be the best compromise between the
extreme attitudes of the retentionists and abolitionists of the capital
punishment. However, there has been a gradually expanding opinion
against capital punishment. Justice Krishna Iyer has strongly stood
for abolition. His strong aversion to it may be clearly seen in his
numerous judicial pronouncements as well as academic writings.
84
83 (1973) 1 SCC 20. 84 AIR 1974 SC 799.
the Supreme Court stated its
preference for life imprisonment to capital punishment. Justice
Krishna Iyer, speaking for majority made following observations: "We
| Determination of Sentences: Principles, Policy and Practice | 353 |
assume that a better world is one without legal knifing of life, given
propitious social changes. Even so, to sublimate savagery in
individual or society is a long experiment in spiritual chemistry
where moral values, socio-economic conditions and legislative
judgement have a role. Judicial activism can only be a signpost, a
weather vane, no more. We think the penal direction in this
jurisprudential journey points to life prison normally, as against
guillotine, gas chamber, electric chair, firing squad or hangman's
rope. 'Thou shall not kill' is a slow commandment in law as in life,
addressed to citizens as well as to states, in peace as in war.
In the State of U.P. v. Rajendra Prasad85
1. 'Special reasons' necessary for imposing death penalty must relate not to the crime as such but the criminal and inspite of the crime being shocking in a particular instance the criminal may not deserve death sentence.
" the majority judgement
given by Justice Krishna Iyer indicates a strong attempt towards
abolition of capital punishment. The Supreme Court went to the
extent of asserting that it had the right to evolve the 'supplementary
principles' if the legislative text was 'too bold to be self acting', and
even if this appeared to possess the flavour of law making.
Thus Supreme Court while reducing the death sentence to life
imprisonment, though very heinous nature of murders were
committed, laid down the following important points:
2. The correct approach is to read into Section 302, I.P.C. and section 354, Cr.P.C. the human rights and human trends in the Constitution. If the murderous operation of a die-hard criminal jeopardizes social security is a persistent, planned and perilous fashion, then his enjoyment of fundamental rights may be rightly annihilated. So, one test for imposition of death sentence is to find out whether the murderer offers such a
85 [1979] 3 S.C.R. 78.
| Determination of Sentences: Principles, Policy and Practice | 354 |
traumatic threat to the survival of social order. (Examples: A manufacturer of drug mixing poison in the drugs; a trader responsible for causing death by adulteration for his private profit; murderous band of dacoits committing armed robbery).
3. In the case of a murder if the public prosecutor informs the court at the stage of sentence hearing under section 235(2) of the Cr.P.C. that the State as prosecutor is of the opinion that the case is not one where extreme penalty is called for and if the sessions judge agrees with the submission, the matter should end there. If on the other hand the public prosecutor states that the case calls for the extreme penalty prescribed by law, the court would be well advised to call upon the public prosecutor to state and establish, if necessary by leading evidence, facts for seeking the extreme penalty of death sentence.
In BishnuDeo Shaw v. State of West Bengal86 and Dalbir Singh v.
State of Punjab87
86 (1979) 3 SCC 714. 87 (1979)3 SCR 1059.
The Supreme Court speaking through Justice
Krishna Iyer reaffirmed the principles laid down in Rajendra Prasad's
case. However, the ruling in Rajendra Prasad's case has not been
accepted unanimously. In Bachan Singh case of Punjab the Supreme
Court diluted the view of the court in Rajendra Prasad's case about
the awarding of the death sentence. It was observed: "From a reading
Ss. 354(3) and 235(2) and other related provisions of the Code of
1973, it is quite clear that for making the choice of punishment or for
ascertaining the existence or absence of "special reasons" in that
context, the court must pay due regard both to the crime and the
criminal. What is the relative weight to be given to the aggravating
and mitigating factors, depends on the facts and circumstances of
the particular case. More often than not, these two aspects are so
intertwined that it is difficult to give a separate treatment to each of
them. This is so because 'style is the man'.
| Determination of Sentences: Principles, Policy and Practice | 355 |
In many cases, the extremely cruel or beastly manner of the
commission of murder is itself a demonstrated index of the depraved
character of the perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the circumstances of
the criminal in two separate water-tight compartments. In a sense, to
kill is to be cruel and therefore all murders are cruel. But such
cruelty may vary in its degree of culpability and it is only when the
culpability assumes the proportion of extreme depravity that "special
reasons" can legitimately be said to exist.
There are numerous other circumstances justifying the passing of
the lighter sentence; as there are countervailing circumstances of
aggravation. It cannot be over emphasised that the scope and the
concept of mitigating factors in the area of death penalty must
receive a liberal and expansive construction by the courts in
accordance with the sentencing policy writ large in section 354(3).
Judges should never be blood-thirsty. Hanging of murderers has
never been too good for them. Facts and figures, albeit
incomplete, furnished by the Union of India, in the instant case,
show that in the past, courts have inflicted the extreme penalty
with extreme infrequency – a fact which attests to the caution and
compassion which they have always brought to bear on the
exercise of their sentencing discretion is so grave a matter. It is,
therefore, imperative to voice the concern that courts, aided by
the broad illustrative guidelines indicated ' will discharge the
onerous function with ever more scrupulous care and humane
concern, directed along the high road of legislative policy outlined
in S. 354(3), viz., that for persons convicted of murder, life
imprisonment is the rule and death sentence an exception. A real
and abiding concern for dignity of human life postulates
resistance to taking a life through law's instrumentality. That
| Determination of Sentences: Principles, Policy and Practice | 356 |
ought not to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed."
Following the formula laid down in the Bachan Singh's case, the
Supreme Court held that the death sentence should not be
passed except in rarest of the rare cases. In a subsequent case
the Supreme Court has laid down some further guidelines on the
question of imposing death sentence: "The extreme penalty of
death need not be inflicted except in gravest cases of extreme
culpability. Before opting for the death penalty the circumstances
of the 'offender' also required to be taken into consideration along
with the circumstances of the 'crime'. Life imprisonment is the
rule and death sentence must be imposed only when life
imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the
and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having
regard to the nature and circumstances of the crime and all the
relevant circumstances.
A balance sheet of aggravating and mitigating circumstances has
to be drawn up and in doing so the mitigating circumstances
have to be accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating circumstances
before the option is exercised. In order to apply these guidelines
inter alia the following questions may be asked and answered: (a)
Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for a death
sentence? (b) Are the circumstances of the crime such that there
is no alternative but to impose death sentence even after
| Determination of Sentences: Principles, Policy and Practice | 357 |
according maximum weightage to the mitigating circumstances
which speak in favour of the offender?
If upon taking an overall global view of all circumstances in the
light of the aforesaid proposition and taking into account that
answers to the questions posed hereinabove, the circumstances of
the case are such that death sentence is warranted, the court
would proceed to do so. In a case the accused killed his wife as he
could not provide money for operation. He killed his two children
also as he felt that they would be neglected after their mother.
The crime was committed out of poverty and not actuated by any
lust, vengeance and gain. In these circumstances life
imprisonment was awarded and not death sentence. But where
murder was committed with extreme brutality death, sentence
was imposed. Where predetermined and cold blooded murder of
entire family including the innocent children was committed with
lethal weapon when they were fast asleep it was held that
imposition of death sentence on accused was not inappropriate.
The murder of Smt. Indira Gandhi, then Prime Minister of India by
security guards was considered by the court as a rarest of rare case
and accordingly the death sentence awarded to the assassin and his
conspirator was held just and proper. Delay in execution of death
sentence was held by Supreme Court in some cases as a ground for
commutation of death sentenced to life imprisonment. In one case
where there was delay in the execution of death sentence of more
than 2 years, the accused was allowed to invoke the aid of Article 21
of the Constitution and death sentence was commuted to life
imprisonment. "Prolonged detention to await the execution of a
sentence of death is An unjust, unfair and unreasonable procedure
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and the only way to undo the wrong is to quash the sentence of
death.
The dehumanising factor of prolonged delay in the execution of a
sentence of death has the constitutional implication of depriving a
person of his life in an unjust, unfair and unreasonable way as to
offend the constitutional guarantee that no person shall be
deprived of his life or personal liberty except according to
procedure established by law. The appropriate relief in such a
case is to vacate the sentence of death. Delay exceeding two years
in the execution of a sentence of death should be considered
sufficient to entitle the person under sentence of death to invoke
Article 21 and demand the quashing of the sentence of death. The
cause of the delay is immaterial when the sentence is death.
Whatever the cause for the delay, the time necessary for appeal
and consideration of reprieve or some other cause for which the
accused himself may be responsible, it would not alter the
dehumanizing character of the delay. Article 14, 19 and 21 of the
Constitution are not mutually exclusive. They sustain, strengthen
and nourish each other. They are available to prisoners as well as
free men. Prison walls do not keep out Fundamental Rights. A
person under sentence of death may also claim Fundamental
Rights. The rule of Article 21 is that any procedure which
deprives a person of his life or liberty must be just, fair and
reasonable. Just, fair and reasonable procedure implies a right to
free legal services where he cannot avail them. It implies a right to
a speedy trial. It implies human conditions of detention,
preventive or punitive. "Procedure established by law" does not
end with the pronouncement of sentence; it includes the carrying
out of sentence. However in a subsequent case this principle has
been overruled. It has been held that delay in execution of death
| Determination of Sentences: Principles, Policy and Practice | 359 |
sentence exceeding two year by itself does not entitle person
under sentence of death to demand quashing the sentence and
converting it into sentence of life imprisonment.
A prisoner who has experienced living death for years, on end is
entitled to invoke the jurisdiction of the Supreme Court for
examining the question whether, after all the agony and torment
he has been subjected to, it is just and fair to allow the sentence
of death to be executed. That is the true implication of Article 21
of the Constitution. Prolonged delay in the execution of a death
sentence is unquestionably an important consideration for
determining whether the sentence should be allowed to be
executed. But no hard and fast rule can be laid down that delay
exceeding two years in the execution of a sentence of death
should be considered sufficient to entitle the person under
sentence of death to invoke Article 21 and demand the quashing
of the sentence of death on the basis that two years are sufficient
for appeal and consideration of reprieve. The present trend of the
Court is greatly liberalised and is towards minimising death
sentence. The death sentence is allowed only in those cases where
there is not the slightest trace of any extenuating circumstances.
5.9.1.1 Uncertainty in Sentencing System
From the above discussion we have, therefore, seen that there has
been uncertainty in the sentencing system in India. In every
judgement where death sentence or life imprisonment is to be
imposed every judge has to discover the 'special reasons' to bring a
case in the category of 'rarest of rare' and in this process where there
are no 'specific guidelines' in the statute, there is every possibility of
an error of judgment. And once an error of judgment is committed
| Determination of Sentences: Principles, Policy and Practice | 360 |
the man goes to gallows. And once death sentence is executed, it
cannot be recalled, and it will amount to violation of Articles 14 and
21 of the Constitution of India. Jeeta Singh's case is a living example
where the two accused got commutation of life imprisonment, when
one accused Jeeta Singh had already been sentenced to death. And
the Supreme Court in its judgement had to make the following
observations: "The fate of Jeeta Singh has a posthumous moral to
tell. He cannot profit by the direction while we propose, to give
because he is now beyond the process of human tribunals."
In the words of Justice Chinnappa Reddy, 'the death penalty' rather
than deterring murder actually deters the proper administration of
criminal justice.... Human justice can never be infallible. The most
conscientious judge is no proof against sad mistakes. Death penalty
is the brooding giant in the path of reform and treatment of crime
and criminals inevitably sabotaging any social or institutional
programme to reformation. It is the 'fifth column' in the
administration of justice. The burden of capital punishment therefore
falls more frequently upon the ignorant, the impoverished and the
underprivileged."
Former Chief Justice of India, Justice P.B. Gajendragadkar said: "A
judge is yet to be born who has not committed a mistake." Whereas
Justice Krishna Iyer has made the following observations on judicial
'adhocism: "judicial adhocism or judicial impressionism dominate the
sentencing exercise and the infliction of death penalty suffers from
the vice of arbitrariness and caprice."
While awarding or refusing to award death sentence shows how some
factors weigh with one judge, some with another some with the third
and so on resulting in chaotic arbitrariness in the imposition of
| Determination of Sentences: Principles, Policy and Practice | 361 |
death penalty. Justice Krishna Iyer therefore suggested that Death
Sentence must be dissolved and life sentence substituted. And
similar views have been expressed by another activist Judge Justice
P.N. Bhagwati, "Death Penalty in its actual operation is
discriminatory, for it strikes mostly against the poor, and the
deprived sections of the community and the rich and the affluent
usually escape from its clutches." In Bachan Singh's dissenting
judgement, Justice Bhagwati emphatically said: "It violates Article 14
of the Constitution. It eliminates reformative purpose. I am morally
against death penalty. Death penalty does not serve any social
purpose or constitutional value."
5.9.1.2 Disparity Reduction
Though sentencing disparity cannot be eliminated altogether, yet
efforts can be made for reducing it to the minimum level. The
strategies indicated are the better training of judicial personnel and
the coordination of sentencing policies through sentencing councils.
It has also been suggested that the job of sentencing should be taken
away either wholly or partly from judicial personnel and the same
should be entrusted to boards consisting of experts trained in
disciplines like social work, psychiatry and allied disciplines.
Provision for appellate review of sentences is also made in criminal
laws which go a long way in reducing the disparities. Improving
sentencing skills should be an important part of any scheme which
aims to make sentencing practices more consistent. The trial judge
should be made well-conversant with all the alternative sentences
and their application in appropriate situations. He should be trained
| Determination of Sentences: Principles, Policy and Practice | 362 |
to evaluate pre-sentence and psychiatric reports in cases where they
are made available to him88
Certain suggestions are put forth for the imposition of penalties as
deduced from principles laid down in plethora of cases
.
5.9.2 Imposition of the Sentence of Imprisonment
89
Court shall impose the penalty of Imprisonment in the following cases
:
The following grounds while not controlling the discretion of the court shall accord weight in favor of withholding the sentence of Imprisonment.
(a) when the offence committed is of violent and abhorrent nature.
(b) when the offender has voluntarily joined a group and committed in their company a serious crime
(c) when there is undue risk that other penalty or measure of control over the offender will not stop him from committing another crime
(d) when the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution
(e) When probation and fine have been tried earlier and have remained ineffective in stopping him from crime.
(a) Offence is of technical nature and not criminal in character.
(b) Offender is a pregnant woman or has a new born baby
(c) Offender voluntarily surrendered to the investigating agency and expressed sincere repentance before discovery of the offence.
(d) Offender is youthful or is of old age
(e) the offenders conduct neither caused nor threatened serious harm
(f) the offender acted under strong provocation
(g) there were substantial grounds tending to excuse or justify the offender’s criminal conduct, though not complete defense under general exceptions given in IPC
(h) the offender has restored the property in respect whereof the offence was committed, or has compensated or will compensate the victim of his criminal conduct, for damage or injury sustained.
5.9.3 Criteria for Imposing Fine
88 Supra Note 32, p. 401. 89 Supra Note 29, p. 223.
| Determination of Sentences: Principles, Policy and Practice | 363 |
If in view of the above considerations, the court feels that the
offender does not need imprisonment, the court shall impose fine90
The Model Penal Code of the American Law Institute has laid down
the following criteria for the imposition of fines
:
1. The offence is the result of culpability of the offender.
2. The court is of the opinion that a fine is specially adapted to deterrence of the crime involved or to the correction of the offender.
3. The offence is not grave and its punishment by imprisonment is alternated with fine in penal code.
4. The offence is of technical nature and not criminal in character.
91
90 Supra Note 32 pp. 383-384. 91 Article 702 of the Model Penal Code of the American Law Institute.
:
1. The court shall not sentence a defendant only to pay a fine, when any other deposition is authorized by law, unless having regard to the nature and circumstances of the crime and to the history and character of the defendant, it is of the opinion that the fine alone suffices for protection of the public.
2. The court shall not sentence a defendant to pay fine in addition to a sentence of imprisonment or probation unless:
(a) the defendant has derived a pecuniary gain from the crime; or
(b) the court is of opinion that a fine is specially adapted to deterrence of the crime involved or to the correction of the offender
3. The court shall not sentence a defendant to pay a fine unless:
(a) the defendant is or will be able to pay the fine; and (b) the fine will not prevent the defendant from making
restitution or reparation to the victims of the crime
4. In determining the amount and method of payment of fine, the court shall keep in view the financial resources and the nature of burden that its payment will impose on the offender.
| Determination of Sentences: Principles, Policy and Practice | 364 |
5.10 NEED FOR COMPREHENSIVE POLICY
The sentencing codes of most jurisdictions do not expressly adopt a
particular theory of punishment, and where sentencing objectives are
declared, they are often inconsistent.92 In no area of contemporary
criminal law is there as much controversy, as much doctrinal
movement and as much diversity of approach throughout the
country as there is in matters relating to sentencing.93
Under current system, state legislatures rarely decide what sentence
a ‘typical’ violator of a criminal statute should receive. Instead, they
generally determine only what the minimum and maximum sentence
for a given offense will be. As a consequence, attention has focused
primarily on extremes cases that warrant extremely different
punishments, legislatures tend to set the minimum and maximum
sentences at very great distances from each other. Since the range of
legislatively authorised punishment will be same for all acts coming
within that statute, the difference between the lowest and the highest
sentence for a given crime tends to be vast, even for relatively minor
offenses. Generally, there are few if any rules, standards or
Thoughtful consideration of sentencing problems and possible
reforms cannot proceed without an initial acknowledgment of the
conditions in our nation’s penal institutions. It is the belief of that
structural reforms in sentencing should not lead to an increase in
the already large population inhabiting the nation’s prisons. The
imposition of sentence is, “probably the most critical point in the
administration of criminal justice”.
92 MirkoBagaric, Punishment and Sentencing: A Rational Approach, Cavendish
Publishing Ltd., London, (2001), p. 11. 93 Sanford H. Kadish, Stephen J. Schulhofer and Carol S. Steiker, Criminal
Law and its Processes, Wolters Kluwer, Aspen Publishers, New York, (2007), p. 1044.
| Determination of Sentences: Principles, Policy and Practice | 365 |
guidelines, formally established through mandatory legislation, rule
making or regulation, to guide the exercise of judicial or
administrative sentencing discretion. Nor are discretionary decisions
on sentencing generally subject to judicial review, except in cases of
clear abuse, which reviewing courts are reluctant to find. Similarly,
the courts have not articulated guidelines for sentencing typical
offenders. Every judge has his own notion of what a fairly typical
crime “deserves”- and these notions are of course disparate in the
extreme.94
The primary reason for establishing a sentencing guideline system is
to maximize the application of the rule of law to decisions which are
of great significance to the public insofar as they convey the degree of
censure of the offender for the offence, to victims and to the offender
themselves. These decisions may involve considerable deprivation of
liberty, restrictions on liberty, or deprivation of money or assets. It is
therefore absolutely right that the rule of law should apply to them
so far as possible: although the sentencing decision will always
require an element of judgment, that judgment should be exercised
within a framework of rules, applying principles and guidelines set
out in advance, such that court decisions are consistent in their
approach and reasonably predictable. However, these are not
persuasive reasons against a structured framework that includes
sentencing guidelines set out the main criteria and the courts apply
them, this should deliver some consistency of approach, while
leaving an element of discretion to be exercised, within the
framework, in individual cases. How consistent and predictable the
sentencing outcomes are then depends on more detailed factors such
as (i) the narrowness of the sentencing ranges, and (ii) how many
94 Supra Note 43, p. 12.
| Determination of Sentences: Principles, Policy and Practice | 366 |
other factors (mitigating or aggravating) are allowed to operate
without significant constraint. These are the matters to which close
attention should be paid during the process of developing sentencing
guidelines. It is vital to preserve room for the sentencer to exercise
judgment in applying the principles and guidelines to the facts of the
particular cases, but it is equally important not to use this as an
argument against having sentencing guidelines. The key issue is the
extent of the discretion versus the extent of constraint from the
framework.95
The essence of guidelines is to provide different ranges of sentence
for different levels of seriousness of each type of offence and within
each range. The aim of the technique is to structure judicial
discretion- not to take it away, but to provide a framework within
which the court can locate the particular offence with which it is
dealing and then reflect the facts of that case (the aggravating and
mitigating factors) by placing it appropriately within or outside the
relevant range. There are sound constitutional reasons for
introducing such a framework. Sentencing decisions are of great
significance to the public (insofar as they convey the degree of
censure of the offender for the offence, to victims and to the other
offenders). Alike England, there is a need to set up the Sentencing
Advisory Panel which devise draft guidelines, to consult members of
the public and its statutory consultees about them and prepare its
advice. The advice then is presented before the Sentencing Guideline
Council, which is empowered to issue ‘definitive guidelines’.
96
Sir Igor Judge sounded warnings against interpreting guidelines in a
mathematical fashion, whereby each individual ingredient should
95 Supra Note 15, pp. 417-418. 96 Id, p. 28.
| Determination of Sentences: Principles, Policy and Practice | 367 |
increase or reduce the notional sentence by a prescribed amount, he
stated, “The reality, however, is that the sentencing decision requires
the judge to balance all the ingredients of the case, whether
aggravating or mitigating in order to produce the appropriate
sentence. There is no grid plan. There is no point system. Although,
whether provided by this court or the Sentencing Guidelines Council
in accordance with its responsibilities, remain guidelines.97
The judicial approach to sentencing should be one of compassion
and understanding, all doubts should be resolved in favour of the
offender; reformation and rehabilitation should be the main target of
a sentencing process. Nevertheless, while a judge should be
compassionate and understanding, he must not lose sight of the fact
that the whole criminal process is for the protection of the public and
that the criminal law must be administered and enforced to attain
that purpose and at the same time, maintain the confidence and
respect of the public.
”
98
There are certain sentencing reform suggestions which have been
proposed, which doesn’t find a rational standing, these proposals
are:
99
(a) Flat Time Sentencing: It simply means that the legislature would define one sentence for each crime or degree of crime, that the sentence would be imposed by the judge, and that the sentence would be served in full without any discretion on the part of the parole board to order early release. A number of variations on the theme of flat-time sentencing have been suggested, some with modicum of flexibility at the judicial or administrative stages. Notwithstanding, all flat-time proposals have in common the elimination of all or most judicial and administrative discretion in sentencing and the return to the
97 Martin [2007] 1 Cr App R (S) 14, at [18]. 98 Supra Note 6, p. 301. 99 Supra Note 43, pp. 17-20.
| Determination of Sentences: Principles, Policy and Practice | 368 |
legislature of control over the determination of sentences. The criticism for such type of sentencing is that, by requiring every single defendant convicted under the same statute to serve the identical sentence, it threatens to create a system so automatic that it may operate in practice like a poorly programmed robot.
(b) Mandatory Minimum Sentence: As the term implies, this proposal would eliminate all discretion to go below a certain minimum that must be served, while retaining broad discretion to exceed that minimum up to a statutory maximum. Most proposals for mandatory minimum are limited to certain specific crimes, categories of crime or categories of criminals. There is an objection to Mandatory minimum sentences, that there are certain extremely serious crimes for which imprisonment should be required without regard to the circumstances.
(c) Presumptive Sentencing: The underlying presumption here is that a finding of guilty of committing a crime would predictably incur a particular sentence unless specific mitigating or aggravating factors are established. The process with initiate with the legislature, which would break crimes into several categories. Only in extraordinary and unanticipated circumstances would the judge be permitted to deviate from the presumptive sentence beyond the narrow range permitted by an ordinary finding of aggravating or mitigating factors. Any deviation would be justified in a reasoned opinion subject to a searching review on appeal.
Cases on Sentencing Policy
Sr. No.
Name of the Case/Citation Observation
1. RajendraPralhadraoWasnikv. State of Maharashtra, (AIR 2012 SC 1377).
“Stated broadly, there are the accepted indicators for the exercise of judicial discretion but it is always preferred not to fetter the judicial discretion by attempting to make the excessive enumeration, in one way or another. In other words, these are the considerations which may collectively or otherwise weigh in the mind of the Court, while exercising its jurisdiction. It is difficult to state, it as an absolute rule. Every case has to be decided on its own merits. The judicial pronouncements, can only state the precepts that may govern the exercise of judicial discretion to a limited extent. Justice may be done on the facts of each case. These are the factors which the Court may consider in its endeavour to do complete justice
| Determination of Sentences: Principles, Policy and Practice | 369 |
between the parties”.
2. State of Madhya Pradeshv.-Mehtab, (Cri. Appeal no. 290/2015, dated 13.02.2015)
“we find force in the submission, it is the duty of the court to award just sentence to a convict against whom charge is proved. While mitigating and aggravating circumstance may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also the victim and the society.”
3. Alister Anthony Pareira v. State of Maharashtra(AIR 2012 SC 3802)
“Sentencing policy is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing and accused on proof of crime. The courts have evolved certain principles: twin objectives of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.”
4. Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), ( AIR 2013 SC (Cri) 2342)
The Hon’ble Apex Court has dealt with sentencing jurisprudence at length and opined that the principles of sentencing evolved by this Court over the years, though largely in the context of the death penalty, will be applicable to all lesser sentences so long as the sentencing Judge is vested with the discretion to
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award a lesser or a higher sentence.
5. Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India, (2014 Cri.L.J. 4598),
The Hon'ble Apex Court observed that Crime and punishment are two sides of the same coin. Punishment must fit to the crime. The notion of 'Just deserts' or a sentence proportionate to the offender's culpability was the principle which, by passage of time, became applicable to criminal jurisprudence. It is not out of place to mention that in all of recorded history, there has never been a time when crime and punishment have not been the subject of debate and difference of opinion. There are no statutory guidelines to regulate punishment.
6. State of Madhya Pradesh v. Surendra Singh, (AIR 2015
SC 3980,
Based on the theory of proportionality, it is laid down by Hon'ble Apex Court that, “Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of the society. One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. one should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers. Imposition of sentence must commensurate with gravity of offence”.
7. Sangeet&Anr. v. State of Haryana[(2013) 2 SCC 452
In the sentencing process, both the crime and the criminal are equally important. We have unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge centric sentencing rather than principled sentencing.”
5.11 CONCLUSION
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A criticism is often made that uncertainty in awarding sentences
reinforces the public’s perception that cases before judges are not
decided on the basis of certainties of principle, or have no sure legal
foundations but are settled merely at the whim of the sentencing
judge, and this seriously undermines the administration of the
criminal justice. Suggestions about ways and means of evolving a
sentencing system which will point to some certainties in the
sentencing principles and patterns, thereby reducing the unfair
disparity of sentences, undoubtedly needs careful and helpful
consideration and study by all who are interested in a humane penal
system. But in the ultimate analysis, it has to be accepted that under
our judicial system the personality and the philosophy of the judge
concerned will continue to play a decisive role. There is no way that
the judges can avoid having to make choices. The development of
jurisprudence will suffer seriously if judges shy away from making
choices out of a fear of supposed adverse reaction from conservative
public opinion and inactive legislatures.100
There are certain implications for Sentencing Reforms, such as:
In India, neither the
legislature nor the judiciary has issued structured sentencing
guidelines. Several governmental committees have pointed to the
need for adoption of such guidelines in order to minimize uncertainty
in awarding sentence.
101
1. A range of research techniques are required to understand how sentencing operates as a social practice. These range from an examination of statistical pattern of sentencing, reading and listening to judicial accounts of sentencing, and an analysis of sentencing as a form of legal decision making. None of these on their own allows us to provide a grand theory of sentencing, nor to build a robust model of sentencing that would enable us to predict sentencing decisions accurately. They can, however,
100 Supra Note 10, p. 183. 101 Supra Note 9, pp. 172-173.
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provide an account which helps us to understand the social practice of sentencing and which might help to understand the obstacles to reform of sentencing as well as the mode of reform which has the best chance of working in practice.
2. Judicial accounts of sentencing typically relate a narrative of facts and circumstances, from which a sentence emerges through an intuitive process. This discourse of individualized sentencing allows cases to be distinguished from each other as there is an almost limitless range of relevant factors which can be taken into account and no rules which set out with precision how these factors should affect the calculation of the sentence. This discourse recognizes the value of consistency in sentencing, but provides an almost limitless range of ways in which one case can be distinguished from another which effectively means that no rational consideration of consistency is possible.
3. Where judges resist reform they do so not just to defend their power and social capital, not just because they perceive the reform to threaten the pursuit of justice, but also because the reform attempts represent an alien way of thinking about sentencing. The different approaches to reform, narrative guidelines, numerical guidelines or sentencing information systems, all attempt to provide a language for addressing the issue of consistency in sentencing.
4. Reformers need to find ways of convincing judges that there is an alternative to antiquarian way of individualized sentencing.
Thus, formulating a sentencing guideline is not an easy task. It
requires an amalgamation of different thoughts and philosophies.
Discretion must judiciously be exercised as it provides rationale to
the sentencing norm. No numerical guidelines or set standards can
be made mandatory. But suggestive guidelines can be prepared,
which would act as a checklist to ensure fair and just sentence
sentence has been pronounced. Reasoning and Discretionary power
cannot be jotted down in black and white because in a country like
India, diversity brings in a lot of factors. The customs, traditions and
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legislations go hand in hand to decide, the legality or illegality of the
act. It may not only vary amongst the class or community but it may
also vary from State to State.