There is no disputing that a sentence should be commensurate with the crime regardless of its being a single offense or multiple offenses. Rendering a more lenient punishment for multiple offenses simply on the premise that all the offenses were trie ...
There is no disputing that a sentence should be commensurate with the crime regardless of its being a single offense or multiple offenses. Rendering a more lenient punishment for multiple offenses simply on the premise that all the offenses were tried together in a single trial rather than in separate procedures is neither just nor justifiable. The complicated and sensitive nature of multiple offender sentencing remains a challenging area both theoretically and practically.
For example, a judge must decide on a case involving 10 robbery offenses in a single trial. Assuming that sentencing factors are the same in all counts and 2 years imprisonment is appropriate for each robbery, what sentence should be given? Mathematically speaking, 20 years imprisonment should be appropriate; however, in light of the fact that the advisory sentencing range for ordinary murder in sentencing guidelines is 9 to 13 years imprisonment, 20 years may be too harsh. The appropriate punishment should fall between 2 – 20 years but it is difficult to decide at which point the sentence would be most fair. Each nation has its own solutions regarding this matter. The complexity of multiple offender sentencing issues such as setting reasonable upper limits of compound sentences, imaginary multiple offenses, similar multiple offenses, and later tried multiple offenses makes it difficult to set general guidelines.
There are only 4 articles that deal with multiple offenses in the Korean Criminal Code. Multiple offenses are separated into real multiple offenses and imaginary multiple offenses. Real multiple offenses are subcategorized into similar multiple offenses and later tried multiple offenses. In principle, one final sentence is rendered for multiple offenses. In the case of concurrent multiple offenses, with the exception of death penalty or life imprisonment cases, the maximum term of the most serious crime is extended by 50%.
In 2009 South Korea implemented the sentencing guidelines system. Although comparatively speaking, multiple offender sentencing guidelines have been detailed to some degree and thus enhanced transparency in sentencing, problems remain. First of all, there is no clear reason why only 3 serious offenses are considered in producing the final sentence. Second, as to setting the upper limit of the maximum range, the guidelines recommend that 1/2 of the maximum recommended sentencing range of the second serious crime and 1/3 of the maximum of the third serious crime be added to the maximum recommended range of the most serious crime. The reasoning behind this scheme remains unclear.
Countries which are based on the continental legal system usually detail multiple offender sentencing principles through written statutes. Further, instead of sentencing each count severally, one final sentence is given for all offenses. On the contrary, countries which are based on the common law system usually renders a sentence for each count and thereafter decide whether the sentences are to be served concurrently or consecutively. Globally 20 jurisdictions in America and the United Kingdom have adopted the sentencing guidelines system. The American sentencing guidelines system typically use the seriousness of crime grading table. U.S. federal sentencing guidelines are set using very detailed and mathematical methods. For example, federal guidelines allow for a maximum of a 5 level increase in the grade of the most serious count in multiple offender sentencing. The United Kingdom also has set multiple offender sentencing guidelines but they are limited to narrative guidelines in determining whether each sentence should be executed concurrently or consecutively.
In the revision of guidelines, it is usually unwise to exchange an existing model for another. Research should be an ongoing endeavor but urgent problems should be given immediate attention. Specifically, the principle that only considers 3 of the most serious counts must be abolished. Guidelines should take into consideration all counts which are similar in seriousness to the primary count.
If the Korean sentencing commission were to develop a seriousness of crime grading table, it would greatly facilitate comparing the severity level of each crime. Although no such table exists as of yet, it is imperative to compare the maximum guidelines range of each count and then decide on the total number of counts to be calculated. In the case of a heinous crime in which the statute of limitations has ended or been suspended, the recommended sentencing ranges of such counts should be added together.
In the case of imaginary multiple offenses, because legally protected values have already been violated, it is gratuitous to set new mitigating guidelines. It is sufficient for the judge consider it in and of itself as a mitigating sentencing factor. In the case of later tried multiple counts, they should be treated as though being tried with the counts previously sentenced in order to prevent unnecessarily harsh sentencing.
In addition, the courts should be required to explain the multiple offender sentencing process in the sentencing paper and defend the reasons for sentencing not only in cases of departure but in all cases. The sentencing commission for its part must collect and record empirical data for future reference. Only through such longtime efforts can the complex problems of multiple offender sentencing be resolved.