Apr 16, 2025
Sentencing frameworks and the ability to deviate from them in Norwegian law
The Penal Code grants the courts significant freedom in sentencing through wide sentencing ranges. At the same time, there are rules that, under certain circumstances, allow the courts to deviate from the ordinary sentencing ranges. This article provides an overview of the Penal Code's sentencing ranges and the main rules on the ability to deviate from them, as well as provisions on custody deductions.
Legal Sentencing Ranges
In Norwegian law, the Penal Code, with few exceptions, grants the courts great freedom in sentencing. Only in one case does the Penal Code prescribe a fixed penalty: § 100 stipulates imprisonment for 21 years as the sole penalty for murder of the King or the regent, or attempt thereof. Otherwise, the law always provides the judge with greater or lesser discretion.
The sentencing ranges in the law are formulated in various ways:
Often, the law only sets a maximum penalty, for example, § 268, 1st paragraph on robbery: imprisonment for up to five years. This provision is then supplemented by the rule in § 17 on the law's general minimum for custodial sentences.
In other cases, the law only sets a minimum penalty, for example, § 233, 1st paragraph on murder: imprisonment for at least six years. Here, the rule in § 17 on the general maximum for fixed-term imprisonment must supplement it.
Very often, the law provides a choice between two types of penalties, particularly between imprisonment and fines. For example, § 228 on bodily injury: fines or imprisonment for up to six months.
The sentencing ranges in the Penal Code are generally so broad that they in all usual cases give the judge the opportunity to choose the penalty that is deemed appropriate. Sentencing is an area where it is generally appropriate for the judge to have free hands in assessing the many factors that may come into play.
With legislative amendments, the trend in recent decades has mainly been to remove binding minimum sentences. For example, the minimum penalty of six months for robbery was removed in 1984. However, for sexual offenses, we saw a change in the opposite direction with the law of August 11, 2000, when the minimum penalty for rape to intercourse and intercourse with a child under 14 years was increased from imprisonment for one to two years.
The Ability to Deviate from Sentencing Ranges
Young Offenders
According to the Penal Code § 55, the provision allowing for up to 21 years imprisonment cannot be applied for offenses committed before the perpetrator turned 18 years old. Thus, for a 17-year-old who commits a serious crime, the usual maximum of 15 years imprisonment applies.
§ 55 also provides the opportunity to reduce the sentence below the minimum that is otherwise determined for the act, and when circumstances justify it, to a milder type of penalty. The latter means, first and foremost, fines instead of imprisonment. Furthermore, there is the opportunity to impose community service even if the upper sentencing range exceeds imprisonment for six years.
Reduction of Sentence According to § 56
The Penal Code § 56 provides opportunities in certain cases to reduce the sentence below the minimum set for the act and to a milder type of penalty. This provision has its greatest practical significance for legal provisions with a high minimum penalty, such as § 233 on murder (six years imprisonment).
The following conditions may justify a sentence reduction according to § 56:
Exceeding self-defense or emergency rights: When the act is committed to save someone's person or property, but the boundary for self-defense or emergency rights has been exceeded.
Justified indignation: When the act is committed in justified indignation, under compulsion or imminent danger. The rule on justified indignation is closely related to the opportunity certain provisions provide to exempt from punishment when the act has been in response to improper conduct by the other party. The more serious the crime, the greater the prior offense must be for the indignation to be considered justified.
Mental abnormalities: When the act is committed by a person with mental deviations not so profound as to lead to immunity from punishment according to § 44.
Unconsciousness due to self-induced intoxication: When the act is committed in unconsciousness resulting from self-induced intoxication, and particularly extenuating circumstances justify a sentence reduction.
"Sincere Regret in Actions"
Reduction below the minimum and to a milder type of penalty can also occur for those who "before they know they are suspected, as far as possible and in the main, have prevented or remedied the harmful effects of the act" (§ 59, 1st paragraph).
This provision is closely related to the rules on withdrawal from attempts. It is not enough that the perpetrator has tried as best they could to avert or remedy the damage; it is also required that they have, in the main, succeeded.
Confession
After a legislative amendment in 2001, § 59, 2nd paragraph provides that if the defendant has made an unconditional confession, the court shall take this into account in sentencing. The purpose of the provision was to establish that more weight should be given to confessions in sentencing than previously, as a confession usually leads to resource and time savings in criminal proceedings.
The provision does not entail that the court shall always impose a lighter sentence upon confession, but the court is always obliged to consider whether the confession should be given such significance. The significance of the confession will particularly depend on when it was given and what other evidence the police possess.
Increase of Sentencing Range in Case of Recurrence
As part of the fight against repeat crime, § 61 was amended in 2003. The provision now contains a general penalty enhancement rule that indicates that the sentencing range should be increased up to double if a previously convicted person commits a new criminal offense of the same nature as they were previously convicted for.
The assumption with the legislative amendment was that the penalty enhancement should primarily take the form of a significant suspended sentence in addition to the unconditional sentence.
The following conditions must be met for a penalty enhancement to occur:
The guilty party must have been 18 years old at the time of committing the previous criminal act.
The new criminal act must have been committed after the penalty for the previous act was fully or partially executed.
The previous transgression must not be too far in the past (six years for crimes, two years for misdemeanors).
The new act must be of "the same nature as he was previously convicted for".
Increase in Case of Organized Crime
In a legislative amendment in 2003, the Penal Code was supplemented with § 60a, a provision stating that if a criminal act is committed as part of the activities of an organized criminal group, the maximum sentence in the legal provision is increased to double, but not by more than 5 years of imprisonment.
An organized criminal group is defined as "an organized group of three or more persons having as a main purpose to commit an act punishable by imprisonment for at least 3 years, or where a substantial part of the activity consists of committing such acts".
Collision of Crimes
Sections §§ 62-64 of the Penal Code provide rules for determining the sentence when crimes collide (concurrence). The rules can be summarized as follows:
Both acts qualify for imprisonment: If both acts would separately have led to imprisonment, a joint custodial sentence is imposed which must be stricter than the highest minimum penalty set for any single crime, and in no case exceed the highest penalty prescribed for any of them by more than double (§ 62). The general maximum for fixed-term imprisonment is increased from 15 to 20 years in cases of collision (§ 17).
Each individual act should result in a fine penalty: In the collision of acts that would have led to fine penalties, a joint fine penalty is imposed which must be stricter than that which would have been entailed for any individual act (§ 63, 1st paragraph).
The acts qualify partly for imprisonment, partly for fine penalties: The court can impose both fine and custodial penalties, or impose a joint custodial penalty whereby acts that would have led to fines are considered as aggravating factors. In practice, a joint custodial sentence is almost invariably imposed.
Subsequent Judgment
It may happen that a judgment is rendered without covering the entire criminal record of the accusant. Later, other offenses from before the judgment come up and are judged in a new case. For this scenario, § 64, 1st paragraph, stipulates that the court in the new case, when determining the sentence, shall observe that the rules in §§ 62 and 63 are followed as much as possible. Formally, this can be fulfilled in two ways:
Judgment no. 2 can set a joint penalty for previously judged and the newly judged actions.
It may suffice to indicate what additional penalty the older, now judged acts shall entail.
The provisions of § 64 also apply when the penalty imposed by the first judgment has been served or lapsed due to expiration or pardon. The court in judgment no. 2 must assess how large the penalty would have been in total judgment and make deductions for the penalty that has been served or lapsed.
Custody Deductions
Main Rule
If the convicted has been imprisoned before the judgment, they are entitled to have this deducted from the penalty (§ 60). Deductions shall also occur if the penalty is suspended.
If the deprivation of liberty was in complete isolation, an additional deduction corresponding to one day for each commenced period of two days under such isolation shall be given. Complete isolation for 21 days thus gives a custody deduction of 32 days.
Serving Sentence During Custody
If the custody period is as long as or longer than the imposed sentence, the penalty is considered completely served in custody. It also occurs in practice that the sentence is considered served in custody, even if the custody is slightly shorter than the imposed sentence.
In deciding whether the sentence should be deemed served in custody, the rules on probationary release are not taken into account. Probationary release is a matter for the correctional services, not the courts.
Types of Deprivation of Liberty Entitling Deductions
The Penal Code § 60 does not use the expression custody, but instead mentions that the convicted has been "subjected to deprivation of liberty in connection with the case". Thus, the right to deduction applies also if the convicted person has been arrested but released without a detention order being issued.
The provision can also apply to hospital admission, provided that the individual is under a restriction of liberty during the admission. For stays in psychiatric hospitals, etc., for observation purposes, it is expressly stated that such stay shall be deducted.
Further, deductions are provided for stays in an institution where there is "force" by which it effectively has the character of a substitute for detention. Imposed daily reporting and passport confiscation do not, however, entitle to deductions.
Deductions for Multiple Offenses and on Appeal
It occurs that the indictment relates to multiple offenses, and the accused is convicted of some and acquitted of others. According to practice, they are also entitled to deductions in the judgment for custody related to charges for which they are acquitted.
If the convict appeals the judgment, they are entitled to full deduction for custody incurred before the final decision, regardless of whether they achieve any change to their advantage or not.
Foreign Custody
"If the convict has been subject to deprivation of liberty abroad in connection with the case, the court decides to what extent this shall be deducted from the penalty" (§ 60, 3rd paragraph). Usually, it will be reasonable to give full deduction, unless there are very special circumstances.
Deductions in Case of Fines and Community Service
Custody deductions shall also occur if the judgment entails a fine. It is customary that a deduction is given both in the fine and in the subsidiary custodial penalty. The same applies when a citation for a fine is issued.
In the case of a judgment of community service, the deduction shall be made in the subsidiary custodial sentence while also reducing the number of community service hours proportionally. If community service is imposed together with unconditional imprisonment, the deduction shall be made in this, regardless of which of the convicted offenses the custody pertains to.
Conclusion
The Penal Code's system with wide sentencing ranges gives the courts considerable freedom in sentencing. At the same time, there are numerous rules that, under certain circumstances, allow deviations from the ordinary sentencing ranges - both in aggravating and mitigating directions. This ensures that courts normally have the ability to impose a penalty that is reasonable and appropriate for the specific case. The rules on custody deductions ensure that the convicted receive credit for the time they were imprisoned before the judgment.
