SENTENCING BURGLARY, DRUG IMPORTATION AND MURDER FROM TEN COUNTRIES Appendix

CATHERINE HEARD JESSICA JACOBSON

JANUARY 2021 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Institute for Crime & Justice Policy Research Birkbeck, University of London 42 Store Street London WC1E 7DB

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2 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Appendix: ranges and likely outcomes for the three Vignettes

This appendix summarises ICPR’s research on sentencing in law and practice across ten jurisdictions and forms a supplement to the report, Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries. In countries with federal systems where sentencing laws vary between states or territories, we focused the legal research on a single state/territory in order to permit more in-depth analysis than would be feasible with a whole country approach. We selected the laws of New York State in the USA and New South Wales in Australia. (Although India and Brazil also have federal systems there are no differences between states in the sentencing frameworks.)

The research was conducted with assistance from overseas research partners drawn principally from the legal profession. To provide a suitable framework for research and comparative analysis, we examined custodial decision-making in the ten countries by reference to three hypothetical case ‘vignettes’ (as shown at the start of each table below).

We first analysed each country’s national legal and policy frameworks and the provisions which, in theory, would govern custodial decision-making in each of the vignettes. We then conducted semi-structured interviews with 70 criminal defence lawyers across the ten countries. Our objective in the interviews was to establish how, in practice, sentences would be decided in the three cases, and to understand the many factors that tend to influence custodial outcomes and the length of prison terms actually served in such cases.

The information presented in the tables below on likely sentencing outcomes is by necessity an approximation, as it is based on the views of a relatively small number of practitioners (usually six per jurisdiction). In addition, although we have reflected (in the final column of each table) the main factors mentioned in interviews as likely to influence sentencing outcomes in such cases, and the time individuals would actually remain in custody, it is impossible to set out every such factor or reflect all the possible scenarios that might occur in such cases in the relevant countries.

Where a country’s legal system provides for fines in addition to , we provide the range for each fine in the national currency and its equivalent in US$ (based on currency conversion rates as at 5 March 2020, rounded up to the nearest US$ 100).

3 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Burglary vignette: sentence ranges and likely outcomes

P-, a 32-year-old man, broke into a house when the residents were at work, accessing the rear of the house via a back alley and breaking a window to gain entry. He stole jewellery and cash belonging to one of the residents, worth a total of approximately [US$ 500]. He has several prior for the same type of offence and other similar offences.

Statutory sentence range Offence-specific Likely sentence P- Early release provisions? Other matters relevant to P-’s sentence for burglary (including guideline? would receive aggravated forms)

Kenya 14 years maximum No. There are general 7 years; perhaps also order No automatic early release and no Sentencing policy guidelines mandate a Sentencing Policy for compensation. process, per se. P- could starting point of half the maximum sentence, (7 years maximum for Guidelines. apply for sentence revision to adjusted up or down for aggravating or housebreaking and 14 Immediate custody the and Aftercare Service. mitigating factors (listed in Sentencing Policy years maximum for stealing; most likely outcome. Presidential possible once Guidelines and found in case law). Previous would run concurrently as one-third of sentence served; convictions would aggravate considerably. part of same act.) rarely granted. No guarantee time on remand would be deducted; law unclear, so this is in court’s discretion.

South No maximum or minimum No. General sentencing 3 years most likely (the P- must serve half sentence before Court will take account of the seriousness of Africa for this offence. principles apply, derived maximum sentence open applying for parole unless sentence the offence, the personal circumstances of P-, from case law (case of to lower courts). If prior included non-parole period. and the interests of society (the ‘Zinn’ triad). Zinn – see ‘other matters’ convictions are serious Court will weigh up these factors to determine column). and numerous, could be appropriate sentence. Family situation and referred to regional court interests of children and other dependents for longer sentence, maybe important. Constitutional Ct. ruling held that if 8 years. defendant a primary care giver, custody last possible option. Discretionary, so hard to predict severity of If P- has been designated as a ‘habitual sentence. Very little chance offender’ due to prior convictions, sentence will of non-. be longer, and eligibility for parole is only after serving first 7 years of sentence.

Brazil 2 – 8 years No. Case law assists on Difficult to predict as very Will depend on progression is a statutory aggravating factor. eg. how to account for wide judicial discretion. through three regime types; no Can lead to longer sentence and greater aggravating factors. Most likely 3 – 4 years with automatic release. proportion spent in closed or semi-open at least first sixth in closed conditions. Can also close off chance of non- conditions. Immediate custodial sentence (which would otherwise be custody highly likely. possible on facts of P-s offence).

4 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence P- Early release provisions? Other matters relevant to P-’s sentence for burglary (including guideline? would receive aggravated forms)

USA 2 – 7 years for a ‘Class NY state penal law Immediate custody certain Prisoners serving determinate Court can consider wide scope of information D violent ’ (includes contains detailed due to previous offences sentences are eligible for parole when sentencing, including evidence of prior New burglary). guidelines; courts must and given he is a ‘second after serving 85% of their sentence convictions. York sentence according to felony offender’ – otherwise state (Theft would be classed Much depends on plea bargaining and these, but scope for a non-custodial sentence a petit larceny & ‘class A whether negotiates lower (non- negotiating a plea to lesser would have been possible. misdemeanor’ – 1 year felony) charge (lighter sentence). Prosecutor charge such as ‘attempted maximum, but would run Anything from 1.5 to would routinely negotiate sentence for waiver burglary’ carrying lighter concurrently with burglary 5 years possible. But of right to ( process) – usually sentence, even if not in sentence.) between 5 and 10 years if approved by court and becomes the sentence. accord with facts of case. case goes to trial. Assuming previous convictions Outcomes vary by county/borough; Nassau include a felony in County harsher than Bronx. past 10 years, the sentence range becomes minimum 3 years – maximum 7 years.

India Maximum 10 years and fine. No. Penal Code prescribes Immediate custody (due Early release unlikely in P-’s case. Previous convictions rule out a non-custodial maximum sentences for to prior offences); period P- could apply for remission based sanction and are also likely to lead to longer every offence; courts have would be discretionary, on good behaviour; application sentence (but up to judge’s discretion how discretion to set sentence. most likely 3 years. made to jail authority. Usually much longer). limited to one quarter of custodial Trial itself could take longer than the sentence, term imposed. and P- will probably be remanded in custody.

Thailand Minimum 1 year, maximum No public sentencing Most lawyers believed Release when sentence fully Yee-Tok relating to P-’s offence often 7 years, plus fine up to guidelines. ‘Yee-Tok’, un- custody probable due to served, unless remission for good distinguishes levels of seriousness based on 14,000 TBH (US$ 460). published guidance would prior convictions. Likely behaviour (maximum 5 days per value stolen, and whether residential or not. apply. This is circulated to sentence 1 – 2 years month), or release after royal Penal code sets out mitigating and aggravating judges, and is available for assuming P- confesses pardon or (collective) amnesty. factors courts can take into account. Mitigating several common offences. and compensates victim. If Eligibility for amnesty depends factors include ‘repentance and the efforts It has no official legal not, 2 – 3 years. on which ‘conduct’ class P- is in made by the offender to minimize the injurious effect, and is not referred when amnesty declared. There are Small chance of consequence of the offence; voluntary to in sentence decisions 6 classes, ranging from ‘excellent’ surrender to an official’. Mitigation can result in but is routinely followed. (1) to ‘very bad’ (6). All prisoners if confesses and reduction of no more than half the sentence. Content of Yee-Tok varies start at ‘moderate’ (4). Recidivists compensates victim. regionally. are often excluded from Recidivism is an aggravating factor under the and amnesties. Code. Courts are required to increase the sentence by one-third or half, depending on the recency of prior conviction/s and the seriousness of the index offence (burglary would require increase by half).

5 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence P- Early release provisions? Other matters relevant to P-’s sentence for burglary (including guideline? would receive aggravated forms)

England 14 years maximum. Sentencing Council, At highest, 3 years After half served, automatic Outcome would depend mainly on recency & Burglary offences: immediate custody release with balance on licence; and nature of prior convictions. If in 3 strikes If this is P-’s 3rd domestic Wales definitive guideline (2011) particularly if mandatory following release, up to 12 months’ territory (see first column), custody virtually burglary he would receive minimum law applies or if supervision (and possibly home unavoidable; otherwise, very small prospect of mandatory minimum of Guideline sets stage by has been to prison before. detention curfew). avoiding it. 3 years unless special stage approach; not circumstances which mandatory but court Otherwise, a shorter To some extent outcome might also reflect (a) relate to any of the must explain reasons if sentence likely. Very small reasons for offences (personal circumstances) offences or to him; and (b) it chooses not to follow chance community order or and prospects for addressing them. Much would make that unjust in guideline. suspended sentence. offending like this is drug-addiction related all the circumstances. (In and some judges might want to avoid custody such circumstances the if convinced that P- is ready to engage in court could consider a rehabilitation. shorter term, a suspended sentence, or community order.)

Hungary 3 years maximum. No. General principles Almost all lawyers believed After at least two-thirds of Prior convictions for similar offences would be for sentencing in Criminal 1 – 2 years’ custody sentence served. Court must a severe aggravating factor. Severity depends Code, as well as guidance most likely. All considered specify in sentence earliest date for on recency of prior convictions and sentences issued through opinions immediate custody most parole (or can exclude parole). Not received for them. of Criminal Department of likely because of prior automatic. Very small chance of avoiding prison (or Curia (reflecting canonised record. reducing to short custodial sentence), if judicial practice), illustrating P- confesses early, especially if can return/ how discretion is exercised compensate for what was stolen and has in relation to aggravating favourable personal circumstances (e.g. family and mitigating factors in a dependants, steady job). range of offences. Under a recently introduced trial waiver system, the prosecutor can initiate negotiations for a more lenient sentence in exchange for a guilty plea. Provided that legal requirements are met, the court must approve the plea deal.

6 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence P- Early release provisions? Other matters relevant to P-’s sentence for burglary (including guideline? would receive aggravated forms)

Nether- Maximum 6 years’ Judges would refer to Based on judicial If sentenced for 1 year or less, Small chance of lighter sentence e.g. 3 months, lands imprisonment or 4th detailed non-binding guidelines, 3 – 5 months must serve whole sentence. or a non-custodial sentence (e.g. unpaid work, category fine (€20,500 – guideline for burglary. (maybe less if prior or probation) if confesses early and has good (If sentence is above 1 year, early equivalent to US$ 24,300). This sets out possible convictions were long ago). personal circumstances; especially if clear he release possible under some aggravating circumstances will cooperate with probation. (Prosecutor interviewed circumstances.) e.g. whether burgled at said would request If P- has been in remand detention prior to night, with a weapon etc. If sentence of 6 months, on sentence it might be possible to avoid further guideline not followed, court these facts.) custody and suspend the balance of the term is expected to give reasons. remaining. Prosecutor guideline also Within the framework of guidelines (where available for burglary. (These applicable), ‘judges are quite free to come up guidelines are usually slightly with a sentence that fits best: there is no fixed harsher than judicial ones; minimum or maximum… Defence lawyers are free used to guide prosecutor’s to explain every situation that seems relevant. So recommendation for the sentencing exercise is very fair in comparison sentence.) to the pre-trial decision making stage.’

Australia Breaking into a house No. Seven statutory Lawyers listed several Any sentence over 6 months must If (as likely) P- is tried and sentenced in local and committing a serious sentencing purposes are likely outcomes including: include a non-parole period during court under summary procedure, maximum NSW indictable offence (includes available to guide courts. non-custodial (Community which must remain in prison. If sentence is 2 years imprisonment. stealing from a dwelling Corrections Order) even sentence 3 years or less, court Judicial Commission Guideline judgment does not set a starting house): maximum 14 years. with previous record; must direct release on parole at of NSW publishes point or sentencing range, but does outline Intensive Corrections Order end of the non-parole period. If Sentencing Bench Book, relevant aggravating and mitigating factors. (classed as ‘custodial’); sentence greater than 3 years, which aims to promote Related case law states sentencers should not and up to 4 years custody release on parole is up to Parole consistency. This contains use prior convictions in assessing the objective (with non-parole period of Authority. guidance for ‘break and seriousness of the crime when determining the 2 years) enter’ offences. upper boundary of a proportionate sentence. Sentences are hard to Prior convictions may, however, be relevant in predict due to extent of determining whether leniency should be extended. discretion given by law, All sentencers should take account of personal and lack of detail on P-’s factors and matters relevant to the commission personal circumstances. of the crime and the imposition of , such as: age, nationality/race, character, mental disability, personal background, delay, hardship, remorse, plea of guilty, and assistance to authorities. In NSW, special sentencing orders may be made for offenders who are substance-addicted.

7 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Drug importation vignette: sentence ranges and likely outcomes

K-, a 26-year-old woman, was recruited in her home country of [Nigeria] to transport [heroin] in return for a cash payment. She had flown to [England] from her home country, carrying the drug in a hidden compartment in a money belt. The quantity was 400 grams, or a little under 1 lb.

NB Vignette was altered slightly in some jurisdictions to ensure that the woman’s home country (a) was plausible and typical, in terms of drug trafficking routes to, or via, the given jurisdiction (b) was a less developed country, to make it clear that the person was not, for example, a western back-packer.

Statutory sentence range Offence-specific Likely sentence K- Early release provisions? Other matters relevant to K-’s sentence guideline? would receive

Kenya Fine of 1 million Kenyan No. There are general A prison term of anywhere No automatic early release and no No guarantee time on remand would be shillings [c. US$9,600] or 3 Sentencing Policy from 5 – 20 years, parole process, per se. K- could deducted; law unclear, so this is in court’s times market value of drug, Guidelines, and case law. plus a fine of Kshs. apply (to Probation and Aftercare discretion. whichever is greater, and, The Guidelines mandate 9,000,000 [c. US $86,700] Service) for sentence revision. Some lawyers had had experience of plea in addition, a maximum a starting point of half (assuming street value of Presidential pardons possible deals resulting in 5 – 10 year sentences, but prison sentence of life the maximum sentence, 1 kg of cocaine is Kshs. where one-third of sentence such cases seen as unusual. imprisonment. adjusted up or down for 3,000,000) or in default of served or, if life sentence, where aggravating or mitigating payment, a further 5 – 7 at least 5 years served. Rarely factors (listed in Guidelines years imprisonment. granted. and found in case law). (The fine default and Deportation order likely; unclear Recent case law explains substantive prison terms when would take effect but approach sentencers would run consecutively, in probable that she would have to should take with such line with Sentencing Policy serve sentence in Kenya. offences (Criminal Appeal Guidelines.) 65 of 2014, Caroline Auma Maajabu v Republic [2014] eKLR). Held that Penal Code sets a maximum, not a mandatory minimum sentence for drug trafficking; discourages use of maximum sentence, including as to level of fine, where facts do not justify it (e.g. where ‘a few sachets of heroin worth a few shillings’).

8 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence K- Early release provisions? Other matters relevant to K-’s sentence guideline? would receive

South Maximum prison term, No. General sentencing Difficult to predict K- must serve half sentence before Court will take account of the seriousness of Africa 25 years; court can also principles apply, derived as discretionary but applying for parole unless sentence the offence, the personal circumstances of K-, impose a fine at a level the from case law (case of immediate custody included a non-parole period. and the interests of society (the ‘Zinn’ triad). court deems fit. (Maximum Zinn – see ‘other matters’ almost certain, unless K- Severity of sentence will be influenced by here would be ZAR 1 million column). assists with quantity and prevalence: 400g seen as a large [c. US$ 65,200] – see next information about who was Where Courts have quantity and drug trafficking is prevalent in column.) involved up the chain. discretion to impose fines, South Africa. Court will weigh up these factors Trafficking Act requires they are set according to Otherwise sentence could to determine appropriate sentence. Clean immediate custody for drug Adjustment of Fines Act be anywhere between 5 record should serve to mitigate. Poverty, plus dealing offences. 101 of 1991. A year is and 25 years. interests of children and other dependents, currently the equivalent of could also be relevant. But magistrates often ZAR 40,000. So, maximum overlook mitigating factors and sentence more fine court could impose harshly than judges. here is [25 years X ZAR 40,000 =] ZAR 1 m [c. US$ 65,200].

Brazil Base range, 5 – 15 years; No. Case law assists Difficult to predict. No automatic early release. Drugs Law allows courts to reduce sentence but discretion to increase but there is wide judicial K- would need to satisfy criteria by between one-sixth and two-thirds for 6 – 7 years likely (much of due to statutory qualifying discretion. for regime progression and/or first time offenders not involved in gangs or it in closed regime). features (relating e.g. to conditional release, through good organised crime groups, and where court is No clear distinction level of harm the drug can Also risk of fine of at least conduct in prison. System does satisfied this is not habitual conduct. Can lead between high level roles/ cause, and to the fact it R$ 16,000 [US$ 3,500]. not work fairly in practice, there are to unpredictable outcomes, as could produce larger quantities, and low was imported from another Fine default does not lead delays and red tape. a sentence of 20 months or 15 years for the level ‘subsistence’ dealing/ country). to further time in prison, same conduct. smaller quantities. but to removal from Fine can also be imposed: International aspect plus quantity in K-’s case electoral roll and loss of minimum is 500 ‘day fines’. will rule out non-custodial sentence: court will personal tax ID number, The day fine is currently assume K- is part of a criminal organisation. without which legitimate about R$ 30 so minimum employment is impossible. fine would be R$ 16,000 [US$ 3,500].

9 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence K- Early release provisions? Other matters relevant to K-’s sentence guideline? would receive

USA International element makes Federal law guidelines Starting point, if federally Prisoners serving determinate If K- can offer good evidence she is no more this a federal crime: US Code would be applied if K- were prosecuted, 10 years sentences are eligible for parole than a ‘mule’, federal court would be willing to New provides sentence based on charged with a federal but likely her case would after serving 85% of their depart from mandatory minimum. York this quantity and substance rather than state crime. be handed over to state sentence. state If prosecuted in state court, outcome depends ‘may not be less than 10 Federal guidelines are not prosecutor due to amount Immediate deportation (via on plea bargain stage and whether prosecutor years or more than life’. binding, extremely detailed which would be seen as immigration holding centre) after willing to negotiate lower charge carrying lesser (points-based) and contain fairly small. But if – as is likely given release, if imprisoned. sentence. scope for departing from quantity – K- is prosecuted If state prosecutes, starting minimum sentences where Role of lawyer significant in working towards under state law, she could point would be at least 8 personal circumstances plea deal; including investigating mitigating be charged under NY penal years. or facts justify it. Federal factors. code as a ‘major trafficker’ judges frequently depart Either way, much scope and ‘profiteer’ due to drug’s from guidelines. for lower sentence if street value: A1 felony, ready to waive right to trial indeterminate sentence not NY state penal law and take plea bargain. less than 15 years & not more contains less detailed Several lawyers thought than 25 years. This provision guidelines; courts must non-custodial deal a real excludes people acting under sentence according to possibility. direction of others, with no these. substantial or independent role. Such offenders are not ‘major traffickers’, but class A felony offender: then, sentence is minimum 8 years, maximum 20 years. But if K- is convicted as ‘major trafficker’ and the court, ‘having regard to the nature and circumstances of the crime and the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose this indeterminate sentence, the court may instead impose a determinate sentence of imprisonment’ of minimum 8 years, maximum 20 years.

10 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence K- Early release provisions? Other matters relevant to K-’s sentence guideline? would receive

India Under Narcotic Drugs and No. Penal Code prescribes At its lowest, a sentence A provision in NDPSA prevents NDPSA provides for ‘commercial, intermediate Psychotropic Substances maximum sentences for of 10 years’ rigorous suspension or remission of or ‘small’ quantities. There is too little guidance Act (NDPSA), where the every offence; otherwise imprisonment – but there sentence, but was held to be on where to sentence within wide range. contravention involves courts have discretion, is a growing tendency of invalid by Supreme Ct. Needs a policy rethink as lower levels of ‘commercial quantity’ of the but less so where statute courts to impose maximum trafficker are being too severely punished. So K- could apply for remission drug (set by Central Govt at prescribes a minimum. sentences. In view of the Upper levels of operation are rarely caught. based on good behaviour. 250 g of heroin or above) quantity, which would be For NDPSA offences, Application made to jail authority. statutory range is minimum seen as large, 20 years a courts can only sentence Usually limited to one quarter of 10 – maximum 20 years’ real possibility in this case. above minimum in certain custodial term imposed. ‘rigorous imprisonment’ and defined circumstances Fine of [c. US$ 1,400] or fine of INR 100,000 – INR If fine imposed, payment could (e.g. the offence involved more also likely. 200,000 [c. US$ 1,400 – positively impact application for organised crime). 2,700]. remission. Non-payment could result in further imprisonment, Rigorous imprisonment perhaps 1 – 2 years additional will include some hard custody. labour, potentially mundane, strenuous work, e.g. in a quarry, or on infrastructure. Work supervised by jail authority.

Thailand Quantity in this example No public sentencing All lawyers agreed Only eligible for release when Penal Code sets out mitigating and would be deemed to be guidelines. ‘Yee-Tok’, ‘exceptionally serious’ sentence fully served, unless aggravating factors that courts can take into intended for sale. Sentence un-published guidance case and would result in remission for good behaviour account. Mitigation includes ‘repentance and would depend on purity. circulated to judges, on immediate custody. (maximum 5 days per month), the efforts made by the offender to minimize several common offences. or royal pardon or (collective) the injurious consequence of the offence, If quantity is 20 g or The law and Yee-Tok Varies regionally, has no amnesty. (See explanation under voluntary surrender to an official’. higher, ‘shall be liable to would be followed strictly, official legal effect, not Vignette 1 above.) imprisonment for life and meaning death penalty, Mitigation can result in reduction of no more referred to in sentence to a fine of one million to or life sentence if K- People convicted of more serious than half the sentence – if death penalty, can decisions but routinely five million TBH, or death confesses. narcotics offences are rarely only be reduced to . followed. penalty’. [Fine equivalent to granted pardons or amnesty. [Thai (Exceptionally, there might US$ 31,700 – 158,500] Yee-Tok on drug offences judge, January 2019] be possibility of a 5 – 10 distinguishes importation year sentence.) for sale, which is seen as a particularly serious offence.

11 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence K- Early release provisions? Other matters relevant to K-’s sentence guideline? would receive

England Maximum sentence, life Sentencing Council, Immediate custody almost After half served, automatic release Drug offences guideline was amended in & imprisonment. Application Drug offences: definitive guaranteed. If – as likely – with immediate deportation as 2011, to help guide sentencers towards Wales of Guideline (next column) guideline (2011) applies. court decides this case is non-national and got a sentence most proportionate disposals for drug will produce sentence well Category 3 (harm) & lesser of 12 months or more. Must be ‘mules’ or similar cases, both by providing for Sets out stage-by-stage below this maximum level. role (culpability), sentence considered for the Early Removal assessment of lesser role (see under Guideline approach. First must range is 3.5 – 5 years’ Scheme: deportation after a column) and also by setting out a non- (Guideline not mandatory determine offence category custody. quarter of the sentence has been exhaustive list of offence-specific mitigating but court must explain (based on culpability and served. factors. These may well apply in current reasons if chooses not to harm). Culpability depends Sentence of 3 years case and include matters relating to possible follow; appeal likely if no on role: leading, significant, possible (though unlikely), (If a national, K- would serve intimidation, mistaken belief, vulnerability, lack proper basis to depart from or lesser. The lesser if pleads guilty at earliest balance on licence; following of maturity, or being a sole or primary carer for Guideline.) role is ascribed these opportunity (usually first release, would receive up to 12 dependent relatives. characteristics, by way of hearing in magistrates’ months’ supervision (and possibly example: court). This earns a a home detention curfew order.) Without strong evidence of such factors, • performs a limited one-third reduction on courts tend to focus only on quantity and function under direction; sentence). type of drug. Deterrence will be a major consideration. • engaged by pressure, coercion, intimidation; • involvement through naivety/exploitation; • no influence on those above in a chain; • very little, if any, awareness or understanding of the scale of operation. As for harm, there are four Categories provided depending on the quantity and the substance involved. This quantity of heroin falls under Category 3 (150g up to 1kg). The top Category 1 is for 5 kg or greater. Offence-specific mitigating factors also set out (see ‘other factors’ column).

12 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence K- Early release provisions? Other matters relevant to K-’s sentence guideline? would receive

Hungary 5 – 15 years imprisonment, No. General principles Based on recent similar Could be released after at least Courts sometimes sentence non-nationals if imports a ‘particularly for sentencing in Criminal cases, as K- had no prior two-thirds of sentence served. to slightly shorter sentences than nationals substantial quantity of Code, which set a conviction and assuming Court must specify in sentence in similar cases. Recognises harsher effect narcotic drugs’, defined as starting point at median confessed to offence, most earliest date for parole (or can of sentence where person has no family or where base pure substance of statutory range. Court likely range 4 – 8 years’ exclude parole). friends and does not understand language. is at least 200 x 0.6g (for would also refer to custody; plus expulsion Also recognises cost benefit ratio differs for No automatic release. heroin) ie. at least 120g. applicable case law. from Hungary for up to 8 non-nationals – cheaper to expel from country years. than continue detaining. Very little distinction of penalties based on If sentenced in capital, Having children could serve as mitigating different quantities. could expect 3 – 5 years, factor. Otherwise personal mitigation usually as judges usually more impossible for non-nationals as no way to lenient. produce evidence.

Nether- Maximum sentence 12 Judges would refer to Based on judicial If sentenced for 1 year or less, Judicial guidelines set out factors that lands years or a fine of the fifth detailed non-binding guidelines, likely sentence must serve whole sentence. (If could justify sentencing at level lower than category [€82,000] [US$ guideline for this offence. would be 3 – 5 months’ sentence is over 1 year, early suggested 3 – 5 months: e.g. extreme poverty, 91,400]. This sets out possible imprisonment. With good release possible under some exploitation by a criminal organisation; naivete aggravating and mitigating mitigating facts perhaps circumstances) or low intelligence. Application of sentencing circumstances. If courts 2 months (see ‘other guidelines (next column) Deportation will be ordered to take Can be difficult to convince ‘hardened’ judges do not follow, expected to factors’). will produce sentence well place after sentence served. at courts near airports to reduce for these give reasons. below this maximum level. (No lawyers said they factors. Typically, defendants like K- are Judicial guideline for this considered a fine likely in held for c. 3 months in pre-trial offence gives range of 3 – this scenario.) detention, then sentenced to 3 5 months. months – as ‘time served’ and Prosecutor guideline also deported immediately. available. (Usually slightly harsher than judicial ones; used to guide prosecutor’s recommendation for sentence.)

13 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence K- Early release provisions? Other matters relevant to K-’s sentence guideline? would receive

Australia A Commonwealth offence. No. For Commonwealth Between 3 and 8 years, Commonwealth law does not Some courts better than others at taking Regulations distinguish offences, the list of based on similar cases specify a usual ratio for non- account of low culpability and limited role. NSW between, and set lower considerations for in Judicial Commission parole periods (NPP). At common There is scope to reflect this in sentence but in and upper ranges for sentencers to consider as sentence database (which law, the usual ratio between the practice it is not always fully reflected. ‘marketable’ quantity of laid down in the Crimes sets out many variables in head sentence and the NPP is Case law allows slightly more lenient sentences heroin (above 2 g and below Act 1914 includes (but is decided cases including 60 – 66%. Non-parole period here to reflect ‘harder time’ for non-nationals. 1.5 kg) and ‘commercial’ not limited to) the nature type of role, whether prior could be between 2.5 and 4 years. quantity (1.5 kg or above, and circumstances of the convictions etc). As a foreign national K- will be up to 100kg). offence, whether pleaded Immediate custody highly deported at end of NPP. Could be guilty, level of cooperation. Maximum penalty for likely. held in immigration removal centre ‘marketable’ is 25 years or Case law in importation pending removal. a fine of 5,000 penalty units recognises distinction (AU $1,050,000) [c. US$ between ‘couriers’ and 694,200], or both. ‘principals’. (Couriers generally receive a lesser sentence.)

14 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Murder/intentional homicide vignette: sentence ranges and likely outcomes

Two 23-year-old friends, L- and J-, got into an argument while drinking together in a bar. Both left the scene, and L- texted a mutual friend to say that he was going to kill J-. The next morning, on leaving his home for work, J- was confronted by L- who had been waiting for him outside his property. L- was armed with a knife, which he used to stab J- fatally in the chest.

Statutory sentence range Offence-specific Likely sentence L- Early release provisions? Other matters relevant to L-’s sentence guideline? would receive

Kenya Sentence of death, No; relevant case law Almost all lawyers said Presidential pardons possible Mitigating factors are sometimes seen as expressed in mandatory would apply, notably a most likely outcome would where one-third served or, if life irrelevant in murder cases; courts sentence terms. recent decision of Kenya’s be life sentence, based on sentence, where at least 5 years primarily for deterrence. Supreme Court, which held Muruatetu decision that served. Presidential pardon can However, recent case law Defence would argue for 10 year sentence mandatory death penalty mandatory death penalty also commute death penalty to life holds that death is the based on L-’s young age, indicating likely to be unconstitutional and unconstitutional. Most sentence. maximum penalty and impulsivity and good chances of reintegration that sentencers should considered this decision courts have discretion to L- would need to show change after release. assess culpability and as providing a basis for de impose any lesser sentence. of character or successful any mitigating factors facto ‘whole life’ sentences rehabilitation. and sentence accordingly in murder cases. (Francis Karioko Muruatetu Pardons rare. Most lawyers and Another v Republic thought L-’s prospects would be (eKLR) 2017). low. Following Muruatetu, prisoners sentenced to death are having sentences reviewed and review into proper parameters for life sentences is underway (as at November 2020).

15 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence L- Early release provisions? Other matters relevant to L-’s sentence guideline? would receive

South Court must impose a No. Mandatory minimum Life sentence the most likely Anyone sentenced to life must Africa life sentence if murder must be followed outcome. L-’s relative youth remain in prison ‘for the rest pre-meditated, unless unless ‘substantial and and fact that he is a first-time of his or her life’. Subject to ‘substantial and compelling compelling’ test can be offender unlikely to be seen Minister’s power to grant parole circumstances exist’ such met: a ‘very high bar’. If as sufficiently ‘substantial or on the recommendation of the that it would be ‘grossly met, judges’ discretion compelling’, as these factors Correctional Supervision and disproportionate’ to impose on appropriate custodial would ordinarily be taken Parole Board, but this cannot life sentence. term would be guided into account in mitigation of occur before 25 years have been by sentences imposed in sentence. served. In practice can often take What such circumstances similar cases. several more years. are has been developed If could obtain strong by the courts. In S v evidence of remorse, good Malgas [2001] ZASCA 30, character and potential for the SCA held that these reintegration, backed up by need not be ‘exceptional’ professionals (social work, but must provide ‘truly psychology) court might convincing reasons’ or a depart from mandatory life ‘weighty justification’ for any sentence and go for e.g. 8 deviation from the minimum – 10 years, but a sentence sentence. this low would be rare.

Brazil Homicide qualified by Criminal Code sets down Most likely sentence No automatic early release. Judges are required to provide reasons if they ambush, and for a ‘futile three stage process to would be c. 14 years with Progression to semi-open regime sentence above the mandatory minimum. reason’ (making the act arrive at sentence: (1) fix first two-fifths in closed possible after L- has served two- disproportionate), as here, basic sentence (2) apply any conditions. fifths of the sentence. L- would is sentenced to custody of mitigating or aggravating need to satisfy criteria for regime (minimum) 12 – (maximum) factors (3) assess whether progression. (Good conduct in 30 years. sentence should be prison.) adjusted up or down based Law requires any sentence Regime progression process does on statutory factors [none of longer than 8 years to be not work fairly in practice: delays, which apply in this case]. served in closed regime. red tape. While mitigating factors cannot produce a sentence lower than minimum set by statute, court must exercise proportionality, avoiding excessive punishment while maintaining consistency in the state’s response to the relevant offence.

16 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence L- Early release provisions? Other matters relevant to L-’s sentence guideline? would receive

USA NY state penal law NY state penal law Most important factor in After L- has served the minimum Role of lawyer important in working towards sentence for second contains guidelines for predicting sentence is sentence set by the court, will be plea deal; includes investigating mitigating New degree murder (intentional class A-1 ; courts whether L- takes plea or is eligible for release on parole; but factors and surrounding circumstances (e.g. York homicide), a class A-1 must sentence according sentenced following trial. there is no constitutional right to why did they argue, what was said to provoke state felony: (minimum) 15 years to these. parole. L- etc.?) On former scenario, could – life; (maximum) 25 years get 15 – 18 years, or less If sentenced to life, would be People are often forced into taking plea deals – life. The lower ranges in than this if DA is willing to eligible for parole after first 22 due to potentially high sentences available. each case are the minimum accept plea to a non-life years served. Parole process can People found guilty after a full trial get far, far sentence to be served offence. be tough, with racial and class bias tougher sentences: up to 5 times as harsh. before eligibility for parole apparent in board decisions. If L- arises. So if L- receives On latter scenario, was convicted of murder, he would the minimum sentence, he sentence could be 25 be on parole supervision for rest of will have an indeterminate years to life; L- could life after release. sentence of ’15 years to spend rest of life in prison, life’. at worst.

India Death; or life imprisonment No. The judge has All lawyers agreed most If the sentence is life imprisonment Case law states that when considering and fine. discretion but case law likely outcome would be L- can apply for release after sentence for any offence punishable by death states that death penalty a life sentence. (Death serving 14 years. All prisoners have penalty, a probation officer must present two must not be used in penalty unlikely.) right to request parole. Request is reports, one on reoffending risk and one on murder cases, except made by police superintendent to prospects for rehabilitation, based on factual L-’s young age and clean in cases such as mass the prison administration. Can be investigation with e.g. jail, family, and on record might give defence murder or terrorism, to based on wide range of grounds psychologists’ reports. (State v. Bharat Singh, a basis to argue for lower serve deterrent purpose including family situation. 217(2015) Delhi Law Times 640) sentence, e.g. 10 years, (Sevaka Perumal v. State but no guarantee court of Tamil Nadu, All India would accept this. Reporter 1991 SC 1463). (None of lawyers mentioned a fine as likely.)

17 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence L- Early release provisions? Other matters relevant to L-’s sentence guideline? would receive

Thailand Where murder is No public sentencing All lawyers agreed L- would only be released when If court finds ‘extenuating circumstances’ premeditated, sentence is guidelines. ‘Yee-Tok’, death penalty could be sentence fully served, unless earns apply, the death penalty could be reduced death. unpublished guidance reduced to life sentence, remission for good behaviour to life imprisonment. These are listed as, for circulated to judges, if one or more extenuating (maximum 5 days per month), example: ‘lack of intelligence, serious distress, exists for several common circumstances found to eligibility for which can only arise previous good conduct, repentance and efforts offences. Yee-Tok varies apply (see last column). for life-sentenced prisoners after made to minimize the injurious consequence of regionally, has no official legal ten years’ imprisonment, or the offence, voluntary surrender to an official, Several lawyers saw effect, and is not referred to following royal pardon or collective information given for the benefit of the trial’ and potential for lower in sentence decisions but is amnesty. similar circumstances. sentence if L- confesses routinely followed. at pre-trial stage and then Eligibility for release would Yee-Tok sentencing provides helpful information depend on what conduct class guideline on murder sets to court at trial. Possibly L- belonged to when amnesty out a range, with sentence reducing sentence to 10 – declared. (See under Vignette 1.) gravity differing depending 20 years. Prisoners who are very sick or on type of weapon, motive, elderly sometimes obtain release etc. [Interview with a judge.] even where serving life sentence.

England Mandatory life sentence. There is no offence- Sentence would likely be at Because he would be on an Most lawyers commented on potential & specific guideline for or close to 25 year starting indeterminate sentence, L- must unfairness of mandatory life sentence For most life sentences, the Wales murder. Relevant statutory point. serve the ‘minimum’ term (tariff) set combined with very high tariffs laid down in judge sets a minimum term provisions set out ‘starting by the court. No automatic right to statute. Sentences are now much longer than to be served in custody. If L- pleads guilty at earliest points’ for court to set be released after this term expires: would have been in similar cases prior to the (See next column.) opportunity (usually first minimum term or ‘tariff’. the release date and licence 2003 legislation laying this framework: about hearing in magistrates’ (Where offender has conditions will be decided by the ten years longer, compared to similar cases. court) he can get a taken a knife to the scene Parole Board. L- would need to one-third reduction on Could lead to unjustly long sentences in cases intending to commit an have accepted responsibility for sentence), resulting in where no intent to kill. (In English law, mens offence and used it in the crime, completed courses, and sentence of 16 years 9 rea for murder is intention to kill or cause really committing the murder, the have behaved well in custody: a months. serious harm). normal starting point tariff tough process. is 25 years). Possibly further reduction When life-sentenced prisoners are in light of young age. The tariff starting point can released, licence conditions remain be adjusted up or down for in force for life (known as a ‘life aggravating and mitigating licence’) and breach often leads to factors; the resultant recall to prison. minimum term can be of ‘any length’ regardless of starting point. There is case law relating to the setting of the minimum term.

18 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence L- Early release provisions? Other matters relevant to L-’s sentence guideline? would receive

Hungary If homicide committed No. General principles Most lawyers thought L- No automatic early release. Judges sentencing in the capital tend to be deliberately with for sentencing contained would get 8 – 12 years; if Court must specify in sentence more lenient. premeditation, sentencing in Criminal Code, which confesses and expresses earliest date for parole (or can L-’s mental condition likely to be considered at range is 10 – 20 years, or requires starting point of remorse, with sentence at exclude parole: but this would trial. He may be placed in Forensic Psychiatric life imprisonment. 15 years as median of lower end more likely. But not be permitted on these facts, and Mental Institution for several years, with statutory range. Court could not rule out a harsher as not sufficiently aggravated). If reviews of his condition every 6 months. would also refer to sentence of up 20 years or sentenced to life, earliest date of applicable case law. even life. parole would be 25 years. Judge free to depart from Otherwise if L- receives a fixed median, and would usually term sentence, can seek parole do so where defendant after at least two-thirds of young and has no previous sentence served. .

Nether- No mandatory minimum. No sentencing guideline Length of sentence would If sentenced to 10 – 12 years, TBS process (see first column) is seen by lands Maximum sentence is life exists for murder. depend on whether a TBS would serve first 3 in maximum defence lawyers as potentially unfair. Takes imprisonment or a fixed treatment order imposed (see security, then could be transferred too long, is geared towards drug-based Court would be guided term of imprisonment not first column) – that depends to lower security and/or temporary treatment, carries social stigma and has too by sentences in previous exceeding 30 years or a whether L- has a treatable release on tag. If prosecutor few protections for the patient detained. similar cases. fine of the fifth category [€ mental health problem. If is satisfied with conduct, and From May 2021 the release provisions for 82,000, equivalent to c. so, custodial term of 3 – 12 other conditions are met, could people convicted of serious crimes and US$ 92,600]. years likely, followed by TBS be released after two-thirds of sentenced for over 6 years will change. Instead (which can be indefinite sentence served, with final third Serious violent offences of a presumption of release after the first two- but usually involves 6 – 9 spent on probation. are often sentenced with thirds of sentence, eligibility for release only years’ treatment). If no TBS, a fixed custodial term Any life sentence would have arises in final 2 years of sentence. Release will sentence would be 10 – 12 followed by psychiatric to be reviewed after 25 years depend on prosecutor’s assessment of risk in years in custody. detention – known as by the Life Sentence Advisory view of: conduct in custody; victims’ interests; ‘terbeschikkingselling’ (No lawyers said they Committee, which must consider and public safety. or TBS – which means considered a fine likely recommending participation ‘at the disposal of the in this scenario, or life in programmes to prepare for government’. TBS detention sentence: prosecutor release. is reviewable every two interviewed said if L- years. Judges can only did not cooperate with order this if experts’ reports psychological evaluation provide evidence of a pre-sentence and denied treatable condition. , and was then convicted, prosecution would argue for a long custodial term, possibly life.)

19 Sentencing Burglary, Drug Importation and Murder: Evidence from Ten Countries • Appendix

Statutory sentence range Offence-specific Likely sentence L- Early release provisions? Other matters relevant to L-’s sentence guideline? would receive

Australia Murder carries mandatory No. Legislation sets out Sentence of 20 – 28 years, Parole decision depends on If L- has psychological treatment needs and is life imprisonment, but seven statutory sentencing with a non-parole period conduct in prison, including willing to be treated, this could help mitigate NSW sentencing statute provides purposes to guide courts. (NPP) of around 20 years. successful move through severity of sentence. that any offender liable Judicial Commission Possibly NPP could be classifications, up to point of day to life imprisonment can of New South Wales less, e.g. 14 years, in view release. Tough process for some. instead be sentenced to ‘a publishes a Sentencing of young age, and if other Could also depend on whether specified term’. Bench Book, which aims positive factors exist. support network in place for to promote consistency. release, and if accommodation Statute restricts life Early guilty plea could This indicates a standard available: can work unfairly where sentences for murder attract discount, up to 25% non-parole period (NPP) in not available. to cases where court off – discretionary. murder cases of 20 years. is ‘satisfied that the If State obtains ‘high risk offender’ level of culpability in the Case law holds that Court order before parole period expires, commission of the offence must first determine can be required to undergo heavier is so extreme that the whether, on the objective monitoring for further 5 years. community interest in facts, the level of culpability This is happening more often: is retribution, punishment, is so extreme as to warrant onerous. community protection and the maximum penalty. deterrence can only be met It must then determine through the imposition of whether subjective factors that sentence’. are capable of displacing the prima facie need for the maximum penalty (R v Merritt (2004) 59 NSWLR 557).

20 Institute for Crime & Justice Policy Research

The Institute for Crime & Justice Policy Research (ICPR) is based in the Law School ofBirkbeck , University of London. ICPR conducts policy-oriented, academically-grounded research on all aspects of the criminal justice system. ICPR’s work on this report forms part of the ICPR World Prison Research Programme, a programme of international comparative research on and the use of imprisonment. Further details of ICPR’s research are available at http://www.icpr.org.uk/

ICPR’s book, Imprisonment Worldwide: The current situation and an alternative future (Coyle, Fair, Jacobson and Walmsley) was published in June 2016 and is available from Policy Press.

World Prison Brief

The World Prison Brief was established by Roy Walmsley and launched in September 2000 by the International Centre for Prison Studies. Since November 2014 the Brief has been hosted and maintained by the Institute for Crime & Justice Policy Research. The data held on the Brief (which is updated on a monthly basis) are largely derived from governmental or other official sources. The data used in this report were accessed from the database in December 2020. The World Prison Brief can be accessed at http://prisonstudies.org/