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RECOMMENDATION No. R (92) 17

OF THE COMMITTEE OFMINISTERSTOMEMBERSTATES

CONCERNINGCONSISTENCYINSENTENCING

(Adoptedby theCommitteeofMinisterson 19October1992at the482ndmeetingof theMinisters Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,Recalling that the aim of the Council of Europe is to achieve a greaterunitybetween its members;Considering that it is one of thefundamentalprinciples of justice that likecasesshould be treated

alike;Considering that in member states there has been increasing awareness that unwarranted disparity in

sentencing sometimes occurs atdifferent levels;Considering that unwarranted disparity andperceptionsof injustice might bring the criminal justice

system into disrepute;Taking into account Articles3, 5 and 6 of theConventionon the Protection ofHuman Rightsand

Fundamental Freedoms andalsothefundamentalprinciple of the independence of thejudiciary;Bearing in mind that the decision of the court must always bebasedon the individual circumstances

ofthecaseand the personal situation of the offender;Considering that consistency in sentencing should not lead to more severesentences;Recallingthe conclusions of the 8th Criminological Colloquium inStrasbourg,1987,Recommends that the governments of memberstates,while taking into account their own consti-

tutional principles and legal traditions, and in particular the independence of the judiciary, take appropriatemeasures for the promotion of the principles and recommendations set out in the appendix to this rec-ommendation, so as to avoid unwarranted disparity in sentencing.

Appendixto Recommendation No. R(92)17

A.Rationalesforsentencing1. The legislator or other competent authorities where constitutional principles and legal traditions so allowshould endeavour to declare the rationales for sentencing.2. Where necessary and in particular wheredifferent rationales may be inconflict indications should begivenofwaysofestablishing possible prioritiesin theapplicationofsuch rationalesforsentencing.

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3. Whereverpossible,and inparticularforcertainclassesofoffencesoroffenders,aprimary rationale shouldbedeclared.4. Whatever rationales for sentencing are declared, disproportionality between the seriousness of the offence andthesentence shouldbeavoided.5. The rationales for sentencing should be reviewedfrom time to time. The tendency to establish uniform ratio-nales and priorities at European level should be encouraged and promoted. Sentencing practice should be subjected tocriticalreappraisal so as to avoidundueseverity.6. Sentencing rationales should be consistentwithmodem and humane crimepolicies,in particular in respect ofreducing the use of imprisonment, expanding the use of community sanctions and measures, pursuingpoliciesofdecriminalisation, using measures of diversion such as mediation, and of ensuring the compensation of victims.7. No discrimination in sentencing should be made by reason ofrace,colour, gender, nationality, religion,socialstatus or political belief of theoffenderor the victim.Factorssuch as unemployment,culturalor social conditions oftheoffendershouldnotinfluencethesentenceso as todiscriminate againsttheoffender.8. In proposing or imposing sentences, account should be taken of the probable impact of the sentence on the indi-vidualoffender, so as to avoidunusualhardship and to avoid impairing the possible rehabilitation of the offender.9. Delaysincriminal justice shouldbeavoided: when undue delays have occurred which werenot theresponsi-bilityof the defendant or attributable to the nature of thecase,they should be taken into account before asentenceisimposed.

B.Penaltystructure1. Maximum penaltiesforoffences and, where applicable, minimumpenalties shouldbereviewed sothat theyforma coherent structure which reflects the relativeseriousnessofdifferenttypes of offence.2. The range of available sentences for an offence should not be so wide as toaffordlittle guidance tocourtson itsrelativeseriousness.States should therefore consider thegradingofoffences intodegreesofseriousness, provided,however, thatminimumpenalties, where applicable, do not prevent the courtfrom taking account of particular cir-cumstancesin theindividualcase.3. a. Whereverit isappropriateto theconstitutionand thetraditionsof thelegal system, somefurther techniquesforenhancing consistencyinsentencingmay beconsidered.

b. Twosuch techniques which have been usedinpracticeare sentencingorientations and startingpoints .c. Sentencing orientations indicate ranges of sentence fordifferent variations of an offence, according to the

presenceorabsenceofvarious aggravatingormitigating factors,butleave courts withthediscretiontodepartfromtheorientations.

d. Starting points indicate a basic sentence fordifferent variations of an offence, from which the court maymove upwards or downwards so as toreflectaggravating and mitigating factors.4. a. Inparticular,forfrequently committedorless seriousoffences oroffences whichareotherwise suitable,considerationmay begivento theintroductionofsomeformoforientations orstarting pointsforsentencing as animportant step towards consistency in sentencing.

b.Whereverit isappropriateto theconstitutionor thetraditionsof thelegal system,one ormoreof thefollow-ingmeans, amongothers,ofimplementing such orientationsorstarting pointsmay beadopted:

i. legislation;ii. guideline judgments by superiorcourts;iii.anindependentcommission;iv.ministrycircular;v. guidelines for the prosecution.

5. a. Custodial sentences shouldberegardedas asanctionoflastresort,andshould thereforebeimposed onlyincaseswhere, taking due account of other relevant circumstances, the seriousness of theoffencewould make any othersentence clearly inadequate. Whereacustodialsentenceonthis groundisheldto bejustified, thatsentenceshouldbeno longer than is appropriate for the offence(s) of which thepersonisconvicted.Criteria should bedevelopedfor iden-tifyingthecircumstances which render offences particularlyserious.Whereverpossible,negative criteria toexcludethe use of imprisonment, in particular incasesinvolvinga smallfinancialloss,may bedeveloped.

b. Theintroductionoflegislative restrictionson the use ofcustodialsentences,infurtheranceofparagraph a,shouldalsobeconsidered,inparticularasregards short-term custodialsentences.

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c. Inordertopromotethe use ofnon-custodial sanctionsandmeasures,and inparticular wherenewlawsarecreated,thelegislator should consider indicatinganon-custodial sanctionormeasure insteadofimprisonmentas aref-erencesanction for certain offences.6. Consideration should be given to grading the available non-custodial sentencesin terms of relative severity,takingaccount notonlyof thedifferent formsofsanction (for example suspended sentence, fine) butalsothevaryingdegreesof harshness (for example high or low fines, long or shortcommunityorders ;such grading would enablecourts toselectthe non-custodial sentence appropriate for the offender and, subject possibly to the offender s consent,fromamong a group of sentences which also reflectthe relative seriousness of the offence.7. Where there is afailureto comply with the requirements of a non-custodial order (other than by the commissionof asubsequent offence),theoffender shouldnot besent toprison unlessthecourt issatisfied that allother legally pre-scribedmethods have been used or are inappropriate, and that the offender has had theabilityto complywiththeorder.So far as fines areconcerned:

a. as a matter of principle, every fine should bewithinthe means of the offender on whom it is imposed;b.custody shouldbeavoidedso far aspossible incasesofinabilitytopay, inviewof thefactthattheoriginal

offence wasconsidered insufficiently serious for imprisonmentorbecausesuchapenaltywas inappropriateforotherreasons;

c. statesshould,as amatterofurgency, exploreothernon-custodial meansofenforcingthepaymentof fines,includingsuspension ofpaymentandmodificationof thesentence.8. Instateswhere the suspended sentence of imprisonment is available, it is important to ensure that, where anoffenderbreachesthe suspended sentence, the implementation of the suspended sentence is a judicial decision whichallowssome discretion,in terms of ul l implementation, part implementation or otherpossibilities.

C.Aggravating andmitigatingfactors1. The factors taken into account in aggravation or in mitigation of sentence should be compatible with thedeclaredrationales for sentencing.2. The major aggravating and mitigating factors should be clarified in law or legalpractice. Whereverpossible,thelaw or practice shouldalsoattempt todefinethosefactors which should not be considered relevant in respectof certainoffences.3. Thefactualbasisforsentencing should alwaysbeproperly proved. Whereacourt wishestotake account,as anaggravating factor, of some matter not forming part of thedefinitionof the offence, it should be satisfied that theaggra-vatingfactor is proved beyond reasonable doubt and before a court declines to take account of a factor advanced inmitigation,itshouldbesatisfied thattherelevant factordoesnot exist.

D. Previousconvictions1. Previousconvictions should not, at any stage in the criminal justice system, beusedmechanically as a factorworking against the defendant.2. Although it may bejustifiableto take account of the offender s previous criminal recordwithin thedeclaredrationales for sentencing, the sentence should be kept in proportion to theseriousnessof the current offence(s).3. Theeffectofprevious convictions should dependon theparticular characteristics of theoffender spriorcrimi-nalrecord.Thus,anyeffectof previous criminality should be reduced ornullifiedwhere:

a. there has been asignificantperiodfree of criminality prior to the present offence; orb. the presentoffence is minor, or the previous offences were minor; orc. the offender isstillyoung.

4. Thereshould be a coherent policy with regard to the relevance of discontinuedproceedings, foreign judgments,amnesty, pardon or time-barred offences.5. Where an offender is sentenced on oneoccasion for several offences, the decision on the severity of the sen-tence or combination ofsentencesshouldtake someaccount of thepluralityof offences but shouldalsoremain in pro-portion to the seriousness of the total criminality under consideration.

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E. Givingreasonsfor sentences1. Courts should, in general, stateconcretereasonsfor imposingsentences.In particular, specificreasonsshouldbe given when a custodial sentence is imposed. Where sentencing orientations or starting points exist, it is rec-ommendedthatcourts give reasons when the sentence is outside the indicated range ofsentence.2. What counts as a reason is amotivationwhich relatestheparticular sentenceto thenormal rangeofsentencesfor the type of crime and to the declared rationales for sentencing.F.Prohibitionofreformatioinpeius1. The principle of the prohibition of reformatio inpeiusshould be taken into account where only the defendantappeals.2. Instateswhere such a remedy exists, the powers of prosecutors to use their righttoaccessoryappeal should notbe usedwithaviewto undermining the principle of the prohibition of reformatio inpeius,thereby deterring offendersfrom appealing.G. Timespentincustody

Inprinciple,timespent in custody before trial or before appeal shall count towards the sentence. There shouldbe a coherent policywithregard to time spent in custodyabroad.H. Roleof theprosecutor

Thesentencingpoliciesandtrainingofprosecutorsshould ensure that prosecutorial practicesmakea contri-butiontooverall consistencyin sentencing.I. Sentencingstudiesand information1. Arrangements should be made to ensure thatjudgesand the public are regularly provided with informationabout the overallfunctioningof thecriminaljustice system, and in particular of sentencingpractice.2. Inordertopromoteconsistency insentencing, judges andmagistrates should havetheopportunity toattendseminars and conferences on sentencing, on a regularbasis.J. Statistics and research1. Sentencing statistics shouldbeofficiallyestablished. They shouldbecompiledandpresented in a waywhichisinformative tojudges, particularlyin respectof sentencing levels for relatively quantifiable offences (for exampledrunkdriving,theftsfrom supermarkets).2. Statistics shouldbecompiledso as toensure that they givesufficientdetails tomeasureand tocounter incon-sistency in sentencing, for example bylinkingthe use of particular penalties to types of offence.3. Research should be done regularly to measure accurately the extent of variations in sentencing with referencetotheoffences punished, thepersons sentenced and theprocedures followed. Thisresearchshouldpayspecialatten-tionto theeffectof sentencing reforms.4. Thedecision-makingprocessshouldbeinvestigated quantitativelyandqualitativelyfor thepurposeofestab-lishinghow courts reach their decisions and how certain external factors (press, public attitudes, the local situation,etc.)canaffect thisprocess.5. Ideally, research should study sentencing in the wider procedural context of thefullrange ofdecisionsin thecriminaljustice system (for example investigations, decisionstoprosecute, thedefendant splea,and theexecutionofsentences).K. Europeanco-operationonsentencing information1. States should consider the establishment of some method of a continual exchange ofinformationabout trendsandnew developments in sentencing law, policy and practice, in order to spread knowledge of the sentencing practicesof other Europeanstatesand toinformstatesabout possible methodsofimproving consistency in sentencing.2. Tothisend, states should encouragetheestablishmentof aregular European newsletteronsentencing, preparedbyan appropriateinstitutionand distributed to judges and other interested parties in greaterEurope.Statesshould alsoconsider the desirability of providing aforum for meetings of judges and others involved in the criminal justice sys-temsofmemberstates,so as tospread awarenessofshared problemsandpossible solutions.

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