Factors to adjudicate on
sentencing-aggravating and
mitigating factors.
PENOLOGY ASSIGNMENT
DEBJANI DAS | BALLB(HONS) | 16\11\2023
INTROCUCTION
Sentencing is in the way the courts interact with a defendant when he or she has
pleaded guilty or proven guilty, in other words, it is in what occurs at the time
that the individual convicted with the crime stops to be simply ‘the victim’ and
is ‘the offender.’ There is no substantive or case law concept of ‘Sentence.’ This
does, of course, involve a punishment, such as a fine or a custodial term, levied
by the judge on the defendant for the crime. It should also include orders
imposed on the offender on conviction which cannot properly be described as
punishments. It has been suggested that sentencing is ‘an art not a science,’ so it
must be learned by the practice of doing so, rather than approached by a set of
rules.
AGGRAVATING FACTORS
At the sentencing hearing, presentation of evidence by the prosecutor of
aggravating factors would result in a harsher sentence. There exist different
criminal statutes that specify the factors resulting in harsher punishments. The
seriousness of the offence is judged based upon the circumstances of the case
such as the gravity of the injury, usage of weapons etc. The seriousness of the
offence is the prerequisite factor in deciding the length of the sentence. Some of
the factors are as follows:
• Repeat Offences – It is often argued that the court should treat the previous conviction
of the offender as an aggravating factor provided the conviction before has relation to the
current offence and the time has passed since the conviction. It is regarded that a sentence
can be imposed considering the failure to respond to previous non-custodial sentences.
• Victim Vulnerability – There might be situations where the court may impose a
harsher sentence based on the vulnerability of the victim. It states when an act is
performed by the defendant against a child, the elderly would be considered an
aggravating factor. It also involves causing mental and physical injury, disability, and
illness.
• Leadership – If the defendant played an influential role in the minds of individuals
leading to the commission of offence then the court would consider it as an aggravating
factor.
• Hate Crimes – There exist states which have enacted laws on hate crimes. Different
statues have categorized hate crimes on the basis of caste, religion, gender, and national
origin.
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• The Culpability of an Offence – Intention, negligence, recklessness, and knowledge
play a crucial role in determining the culpability of an offence. It is also regarded as an
aggravating factor provided that the defendant has deliberately caused more harm than
required and has targeted a vulnerable victim.
MITIGATING FACTORS
Production of evidence on mitigating factors would help the defence in bringing
leniency in sentencing. The factors that can be considered by the judge while
sentencing is:
• The offender was coerced, threatened to commit the offence. It would not constitute
complete defence but would slightly affect the sentencing process.
• The Involvement of the offender in the crime was a mere accessory.
• The offender was extremely careful in carrying out the crime.
• It was because of provocation the act was committed.
• A belief possessed by the defendant that he/she holds a rightful claim over the property.
• Under the situation of necessity, the offender was forced to provide aid to his/her
family.
• With mental or physical instability at the time of the commission of offense would
reduce the culpability of the offender.
• Lack of forming a rationale judgment because of his/her age. The offender under
unusual circumstances committed an offense provided there does not exist sufficient
intent to violate the law.
AGGRAVATING AND MITIGATING FACTORS IN SENTENCING
Study of the criminal laws of our country shows that the distribution of the sentence is
left entirely to the discretion of the judges for almost all offenses and, as a result, the
sentences sometimes handed down for almost the same offenses by two different judges
are grossly disproportionate. Since the offenses have been defined in general terms, only
maximum penalty terms have been indicated. Judges, therefore, must allocate the amount
of the penalty according to the gravity or otherwise of the various offenses within the
limits prescribed. Judges face problems in situations where they have to abide by the
basic principles. As a consequence, there has been a disparity in the sentences levied by
various courts over specific kinds of offenses, often without recourse to the standards set
down which are meant to mitigate differences. Such ideas are not specifically laid out in
the Indian Penal Code, 1860, or any other substantive legislation which will have a
contractual impact on judges. They have also followed specific standards with their own
guidance; there is no scheme of daily judges’ conferences, variations in methods are not
addressed or reconciled.
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Death Sentence – The mitigating factors that are considered by the judge
before executing the death sentence are: That the offense was committed under
the influence of extreme mental or emotional disturbance; The age of the
accused; if the accused is young or old, he shall not be sentenced to death; The
likelihood that the accused would not commit acts of violence as a continuing
threat to society; the likelihood that the accused may be reformed and rehabilitated; The
State shall prove by evidence that the conditions are not met; that the accused acted under
the pressure or domination of another person and that the condition of the accused
showed that he was mentally defective and that the defect had impaired his ability to
appreciate the criminality of his conduct.
CONCLUSION
Balancing is what is expected when an offender is convicted. The balancing has to be
done between the rights of the accused and the needs of society at large. It would also be
a daunting challenge to preserve the trust of citizens when using the authority of the
courts to convict or execute. To evaluate it is also a daunting thing for the convicted to be
guilty and therefore executed with a proper penalty without any foolproof method. The
sentence handed down to the convict should be appropriate and not inconsistent with the
brutality with which the crime has been committed. If the death penalty is not applied
even in the case of coldblooded murders, the theories of punishment, whether dissuasive,
preventive or retributive, will lose their relevance.
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