The suspension of execution of the sentence is a system that the sentence ceases to be effective if one who had committed a crime and was sentenced has gotten through the suspended term without having committed other crimes. Where one was convicted, for example faced a prison sentence of 3 years, he/she is to be placed in prison immediately after the court ruling is finalized. However, even in a case of conviction, one who was convicted does not need to go to a prison immediately if the sentence is suspended. Unless one commits other crimes during the suspended term and the suspended sentence is revoked, he/she will not actually get into prison.
The suspended sentence differs substantially from the prison sentence in a sense that one does not get into prison in fact and can return to ordinary life. However, unfortunately a previous conviction remains as the suspended sentence can never cease from being conviction. Moreover, it is necessary to live with the due care as the suspension of execution of the sentence is revoked and one has to serve the suspended sentence and a sentence additionally carried.
- A person not previously sentenced to imprisonment without work or a greater punishment;
- A person who, although previously sentenced to imprisonment without work or a greater punishment, has not subsequently been sentenced to imprisonment without work or a greater punishment within 5 years of the day on which execution of the former punishment was completed or remitted;
- One is to be sentenced to imprisonment with/without work of less than 3 years or fine of less than 500,000 yen.
In a case of (1) or (2) and of (3), it is possible to suspend a sentence during the term of more than 1 year to less than 5 years.
While the law allows to suspend a sentence to pay a fine, it is extremely rare to suspend a sentence to pay a fine in practice, and in the most cases a prison term is subject to suspended sentence.
Criteria for Judgement to Suspend a Sentence
A judge considers the degree of illegality of the conduct and seriousness of responsibility case by case in order to determine to what extent penalty should be reasonable, and hands down sentence within the range of statutory penalty on the premise of various circumstances about the person who has committed a crime. Through this process, a judge evaluates whether suspend a sentence or not.
First, the evaluation of the circumstances of the perpetration itself such as the backgrounds, mode, and dangerousness of perpetration (called ‘the circumstances of a crime’) is important. On that basis, if a judge deems that there is the space to suspend a sentence, he will consider various circumstances including the attribution of a perpetrator. In cases where a perpetration itself is considerably serious, it is never likely to suspend a sentence, the other way around, in cases where a perpetration is not so serious the circumstances other than those of a crime is to be considered.
Whether one can gain suspended sentence in a case which is not clearly suitable for suspension of execution of the sentence depends on the capacity of a lawyer to persuasively make a plea for the circumstances.
Points to Achieve Suspended Sentence
- The mode of the perpetration is not heinous and has a small risk;
- Damage is comparatively minor;
- There are the sympathetic circumstances;
- Compensation or the out-of-court settlement was made;
- No previous conviction nor past history;
- There are the intent and environment to rehabilitate; and,
- No addictive nature and the risk of recommitment.
A judge determines whether hands down suspended sentence or not considering comprehensively the factors mentioned above. In a case of a serious crime such as murder there is little likelihood to achieve suspended sentence. Moreover, if one has many previous convictions of the same kind of crimes, it is extremely hard to avoid a sentence without stay of execution. However, it is important to assert the circumstances in favor of the accused among the factors accurately and persuasively, because he/she could achieve pardon even though the accused did not obtain suspended sentence.
Especially, in a case of a crime with the victim, the out-of-court settlement has a great impact on pardon. Cooperation from the family of the accused is also important in order to show that the environment to rehabilitate in a society is created.
To assert these circumstances in favor of the accused has a great impact on achieving suspended sentence. Whether a judge considers the extenuating circumstances and hands down lenient judgement depends on how one carries out persuasive defense activities.
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Establishment of the Suspension of Execution of a Part of the Sentence System
The Act for Partial Revision of the Penal Code was passed in 2014 and the system of suspension of execution of a part of the sentence was established. The act is to become effective by June of 2016.
This system sets the suspended term of not less than 1 year but not more than 5 years, and suspends execution of a part of the sentence.
The purpose of the system is to encourage to live in a society without committing a crime during the suspended term after completed the part of sentence without stay of execution by suspending execution of a part of imprisonment with/without work, and to design the linkage between the on-side treatment and the out-side treatment. In a case of short-term sentence without stay of execution, the system may be something to deal with the situation that it is difficult to ensure enough parole term.
Second Suspension of Execution of the Sentence
When one committed a crime during suspended term, he/she in principle is to be get a prison sentence. However, exceptionally the sentence may be suspended again. Legally, one may achieve suspended sentence again, where the following three conditions are fulfilled, (1) sentenced to imprisonment with/without work of less than 1 year; (2) there are special extenuating circumstances; and, (3) out of the period of probation.
Even when committed a crime during suspended term, do not let it go but please come to our firm to consult with our lawyers who excel at achieving suspended sentence.