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Minimum Sentences

Published online by Cambridge University Press:  12 February 2016

Leslie Sebba
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Extract

It is a feature of the English law of sentencing that the penalty laid down for an offence indicates the maximum which may be imposed for that offence, but that in lieu of such penalty a milder one may be imposed at the discretion of the court. Apart from the special case of murder where life imprisonment is mandatory, exceptions to this rule are rare.

In Israel this same principle was incorporated in section 42 of the Criminal Code Ordinance, 1936, and in the section which replaced it, section 1 of the Penal Law Revision (Modes of Punishment) Law, 1954, which states as follows: “A court which has convicted a person of an offence may impose on him any penalty not exceeding the penalty prescribed by law for that offence”. In lieu of the term of imprisonment specified by the law a court is thus empowered to impose a shorter period of imprisonment, a conditional term of imprisonment, or a fine; it may, alternatively, make a probation order.

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Articles
Information
Israel Law Review , Volume 6 , Issue 2 , April 1971 , pp. 227 - 239
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1971

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References

1 Section 1(1) of the Murder (Abolition of Death Penalty) Act, 1965.

2 The anomalous exception of providing a special train to take parties to prize fights, under the Regulation of Railways Act, 1860, for which the minimum fine is £200 is mentioned in Jackson, R. M., Enforcing the Law, (London, 1967) 130.Google Scholar Minimum penalties are more frequent in the United States (see Tappan, P., Crime, Justice and Correction, (New York, 1960) 437–41Google Scholar) and Continental Europe (see Grunhut, M., Penal Reform, (Oxford, 1948) 106)Google Scholar. In the United States the concept of the minimum penalty frequently refers to restrictions on early release by the parole board. This question does not arise in Israel where there is no parole board but only a system of selective remissions. See also infra n. 56.

3 Now redrafted under the title Penal Provisions (Modes of Punishment) Law, [Consolidated Version], 1970.

4 See (1954) 8 L.S.I. 206.

5 See sections 18 and 28 of the Consolidated Version, and see the Probation Ordinance [New Version], 1969. There exists another form of penalty, the recognisance, but in the case of adults this may only be imposed in addition to some other penalty.

6 In the case of a deferred sentence, there may be a third type of minimum, namely, the period for which the threat must remain in force. Thus, for example, when the court imposes a conditional sentence of imprisonment, it specifies a period of at least one year (and at most three years) during which the sentence will be implemented if there is a breach of the conditions.

7 (1955) 18 P.E. 254.

8 The court based its decision (besides referring to the precedent of Al Taha (1955) 9 P.D. 88, in which the point was not discussed) on the ground that the Penal Law Revision (Modes of Punishment) Law, 1954, specifically stated that a fine could not be imposed where the penalty was minimum or mandatory, but made no parallel provision with regard to the suspended sentence. This argument, however, is somewhat weakened by the fact that already prior to the Penal Law Revision (Modes of Punishment) Law, the court had held that a fine could not be imposed in such cases, even in the absence of a special statutory provision. (See Salmonder and Fogel v. Attorney-General (1954) 8 P.D. 474).

9 (1961) 16 L.S.I. 69.

10 (1963) 17 P.D. 712; the same conclusion was reached at the Further Hearing, published at (1963) 17 P.D. 2358.

11 It had already been held by the Tel-Aviv District Court, in Attorney General v. Avraham Ben Yitzhak Hagoel (1955) 11 P.M. 84, that probation was not excluded by the mandatory provisions of the Penal Law Revision (Assault on Police Officers) Law, 1952.

12 The court would undoubtedly have the power to make a probation order in such a case if it elected to take this course without first convicting the offender, under section 1 of the Probation Ordinance [New Version] 1969, for the mandatory provision of the Penal Law Amendment (Prostitution Offences) Law, 1962, applies only where a person has been convicted.

13 (1969) 1 L.S.I. (New Version) 222.

14 See Attorney General v. Moshe Ivasitch, (1954) 8 P.D. 1504.

15 (1970) (I) 24 P.D. 370.

16 (1964) Hatza'ot Hok 290.

17 (1964) 43 Divrei Haknesset 2494.

18 Section 16A of the Ordinance; see (1968) 22 L.S.I. 59.

19 Here, also the word “alone” was omitted from the original Bill.

20 L.S.I, ibid., p. 60.

21 (1968) Hatia'ot Hok 68. This amendment, like that relating to the punishment for procurers, was introduced by a private member.

22 The special penalties for juveniles provided under section 18 of the Juvenile Offenders Ordinance, 1937, do not apply to boys who are aged over 16 unless charged with an offence for which the death penalty or life imprisonment are provided. (See section 13 of that Ordinance.)

23 It may be that the mandatory sentence of life imprisonment for murder under English and Israel law is also somewhat anomalous. This policy has been seen as a continuation of the tradition which dates from the era when the penalty for murder was capital punishment; then the rationale for a mandatory sentence was that it would be unfair to the judge to impose upon him a discretion to determine who was to undergo judicial execution. (See (1954) 16 Divrei Haknesset 2665).

24 One possible line of policy which could be read into the court's construction is that the court should not impose a deferred penalty (such as a suspended sentence or probation) without also imposing a peremptory one (such as imprisonment or a fine); but it seems probable that the court could under this section impose a suspended sentence coupled with a recognisance—both of which are deferred penalties.

25 The Bills in fact referred, not to the death penalty, but to the “penalty for murder”—which at that time was death; see, e.g., (1950) Hatza'ot Hok 119.

26 (1950) 4 Divrei HaKnesset 1104.

27 Ibid., p. 1230–1.

28 it seems, however, that where the specified mitigating circumstances are proved, the maximum period under section 11 of the Nazi and Nazi Collaborators (Punishment) Law, 1950, remains the death penalty, whereas under section 2 of the Crime of Genocide (Prevention and Punishment) Law, 1950, only a term of imprisonment—apparently of limitless duration—can be imposed.

29 (1961) 45 P.M. 3.

30 Section 42(1) of the Criminal Code Ordinance, which section 1 of the Penal Law Revision (Modes of Punishment) Law, 1954, replaced, expressly excluded capital offences from the application of the rule that penalties were maxima. This proviso was omitted from section 1 of the Penal Law Revision (Modes of Punishment) Law, 1954. It seems probably, however, that the omission was due to the fact that the general provision of capital punishment for murder had been abolished, and was not intended to affect the nature of the penalty in those extreme cases in which it had not been abolished.

31 (1962) 16 P.D. 2033, 2100.

32 The minimum under section 11 of the Nazi and Nazi Collaborators (Punishment) Law, 1950, could perhaps be interpreted to apply even where the specified mitigating circumstances are not present; but the minimum specified under section 2 of the Crime of Genocide (Prevention and Punishment) Law, 1950, clearly applies only where there are mitigating circumstances.

33 Cf. the unusual circumstances of Eilat Bakery, Ltd. v. State of Israel (1963) 17 P.D. 843, in which the defendant argued that the penalty was mandatory. The defendant, an incorporated body, took the view that the term of imprisonment for a second offence under section 8 of the Night Baking (Prohibition) Law, 1951, could not, by nature, be imposed upon a corporation and could not be converted into a fine owing to its mandatory character.

34 See, e.g., the view of Raweh, J. in Hagoel's case (supra n. 11) that the Probation Ordinance was a lex specialis and was not excluded by the minimum penalty provided under the Penal Law Revision (Assault on Police Officers) Law, 1952. Similarly, the majority in Weigal's case (supra n. 10) held that probation could not be excluded by mere implication. With respect, we prefer the view of the President (at p. 2366) that the minimum penalty laid down for procurers was the lex specialis. But see Rubin, S. et al. , The Law of Criminal Corrections (St. Paul, 1963) 216–7Google Scholar.

35 In the case of procurers, the aim of physical prevention was also stressed: see (1962) 34 Divrei HaKnesset 1925. For doubts as to the effectiveness of deterrence, see, e. g., infra n. 56.

36 Mr. Nir-Rafalkes, the proponent of the Penal Law Amendment (Prostitution Offences) Bill, took the view that the procurer was a “murderer of the soul”, and his punishment should thus be comparable with that of a “murderer of the body”, ibid.

37 See, e.g., the Explanatory Note to the Penal Law Revision (Assault on Police Officers) Bill, , (1952) Hatza'ot Hok 102Google Scholar.

38 Cf. (1950) 4 Divrei HaKnesset 1103. See, however, infra n. 56.

39 It was suggested by Berinson J. in Weigal's case (op. cit., p. 2369) that it might even be possible to make a probation order in the case of murder.

40 This may apply even where the aim is specific deterrence; if a first offender appears to be shocked by the consequences of his conduct and the trial process which it invoked, he may not require a severe penalty to deter him in the future.

41 See, generally, Thomas, D. A., “Sentencing—The Basic Principles” [1967] Crim. L.R. 455.Google Scholar Shoham, on the basis of his analysis of sentencing in Israeli courts, concluded that reformative-preventive grounds (i.e., individualization) are the determining factor in the majority of cases. See Shoham, , Crime and Social Deviation (Chicago, 1966) 177–9.Google Scholar

42 Except of course, inasmuch as where the legislature has provided for a minimum sentence (as opposed to a mandatory one), the court may assert its views by regarding that minimum as sufficient, and declining to impose a penalty more severe than this minimum.

43 To rely on the pardoning power of the President in such cases (see (1950) 4 Divrei Haknesset 1104) seems undesirable. Moreover this would require that the court postpone the imposition of the sentence so that application may be made. This, in turn, destroys the value of the mandatory provision, and tends to pervert the traditional function of the pardoning power.

44 See Newman, D., “Pleading Guilty for Considerations: A Study of Bargain Justice” (1956) 46 J. Crim. L. C & P. S. 780, 787.Google Scholar See, generally, “Note on Statutory Structure for Sentencing Felons to Prison” (1960) 60 Colum. L. R. 1134 ff., and see infra n. 56.

45 See, e.g., sections 63, 64 and 65 of the Traffic Ordinance [New Version] 1961. These sections provide for imprisonment (with or without a fine) for a minimum period. A new Bill (see infra n. 49) proposes that the court will also have to provide reasons if it wishes to make the sentence a conditional one.

46 Heard and decided by the Supreme Court on October 14, 1970 (as yet unpublished).

47 Thus the probation order was not in this case an alternative to sentence, but an addition to a conditional sentence of imprisonment, as provided under section 19 of the Penal Provisions (Modes of Punishment) Law [Consolidated Version]. The conditional sentence itself, however, seems to contravene section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, which expressly excluded this form of sentence.

48 In the present note no opinion has been expressed on the desirability of laying down minimal periods of imprisonment so as to eliminate very short terms which are sometimes considered undesirable.

49 (1970) Hatza'ot Hok 35.

50 Ibid., p. 40.

51 In this case it is doubtful whether the court could even make a probation order without conviction, since, unlike the provision for mandatory imprisonment under section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, the mandatory provision does not specify that it applies only where a conviction has taken place for the offence.

52 Section 64A(a) specifies only that the defendant has “caused” the accident. This does not necessarily imply any criminal liability.

53 It is not even clear from the section that the offence requires a person to have been injured; it may be sufficient that there was a likelihood of injury.

54 A form of minimum sentence which has not been discussed in this note is the mandatory suspension of driving licences. It is not possible to enter here into all the ramifications of this problem but the considerations involved here are in principle no different from those relating to the other forms of penalty discussed.

55 Cf. Yom Tov Levi and Moshe Eliahu v. State of Israel, supra p. 237 at n. 46.

56 See Boyle, K., “The ‘Minimum Sentences’ Act” (1970) N. Ireland L. Q. 425.Google Scholar This article appeared when the present article was ready for the press so detailed reference is not possible. Brief mention, however, of the following points may be made: a) the minimum sentence provisions discussed (The Criminal Justice (Temporary Provisions) Act (No. I,) 1970), were intended to meet the emergency situation in Northern Ireland (p. 425); b) the deterrent aims of the legislation are, in the author's view, unlikely to succeed (p. 439); c) the mandatory provisions have encouraged the police to seek alternative charges which do not attract these penalties, while magistrates enforcing the provisions have suggested recourse to the pardoning power (p. 438); d) the equivalent legislation in Rhodesia reserves a discretion to the court where there are “special circumstances”—provided that these circumstances relate to the commission of the offence and not to the offender. Finally, strong judicial criticism of mandatory provisions has been expressed not only by the Federal Chief Justice of Rhodesia, who resigned as a result of the “unwarranted invasion by the Executive in the spheres of the courts”, but also by the Lord Chief Justice of England, Lord Parker, who has called for an end to mandatory sentences—even for murder (p. 436).