Criminal sentencing should be bound by the internal abstract value of discretion such as the principle of proportionality, the principle of equality, the principle of penalty commensurable with liability, and the principle of no repetitive assessment, which underpin the philosophy of law and order(Taiwan)

2016.09.07
Angela Wu

The Supreme Court rendered the 105-Tai-Shang-2211 Criminal Decision of September 7, 2016 (hereinafter, the “Decision”), holding that criminal sentencing should be bound by the internal abstract value of discretion such as the principle of proportionality, the principle of equality, the principle of penalty commensurable with liability, and the principle of no repetitive assessment, which underpin the philosophy of law and order.

According to the facts underlying this Decision, one of the Defendant’s appeal claims was that with respect to his minor offense of assigning fake drugs as indicated in his testimony given in the course of investigation, the sentence of eight-month imprisonment in the original decision was really too severe. In addition, with respect to the sale of third class of drugs, given that the offense was minor, the sentence of imprisonment for 20 years and 8 months in the original decision was obviously too heavy in violation of the principle of proportionality and the principle of fairness.

According to the Decision, the punishment for multiple offenses that should be carried out should be subject to the external boundary of sentencing discretion, such as the provision of Article 51, Subparagraph 5 of the Criminal Code, which provides that when the period of punishment shall be fixed at not less than the longest period of these punishments and not more than the sum of the periods of these punishments, but shall not exceed thirty years, under the principle of constraining sentencing power by law. In addition, such punishment should be bound by the internal abstract value of discretion such as the principle of proportionality, the principle of equality, the principle of penalty commensurable with liability, and the principle of no repetitive assessment, which underpin the philosophy of law and order. For the discretion in an individual case, except when the significance of overall considerations is lost or the exercise of discretion is obviously abusive in violation of the principle of proportionality and equality, the exercise of such discretion should not be held illegal arbitrarily.

It was further held in this Decision that the original decision was not illegal, since the sentence determined in the original decision based on the offender’s liabilities and in consideration of all aspects of the Defendant’s offenses neither exceeded the extent of statutory punishment nor abused the scope of discretion. Thus, the Defendant’s appeal was rejected.