Sentencing in Norwegian Law: Principles and Key Considerations

In Norwegian criminal law, the courts have significant freedom in determining punishment. The Penal Code provides broad sentencing ranges, wide latitude to go below the minimum levels under mitigating circumstances, and the possibility of issuing conditional sentences. This makes the principles of sentencing particularly important. The fate of the accused depends not only on the answer to the question of guilt but also on what punishment is measured out within an often broad spectrum of options.

Unlike the Criminal Code of 1842, the current Penal Code contains no general provision on which considerations should be taken into account during sentencing. The legislator has reasoned that it would be difficult to provide an enumeration that either states the obvious or says too little or too much. Instead, it is mainly left to the courts, led by the Supreme Court, to develop principles for sentencing.

The General Level of Sentencing

A characteristic feature of sentencing practice is that the courts often use only a small part of the sentencing ranges. For most crimes, the majority of sentences are close to the minimum, at least for those without prior convictions. Prison sentences of several years almost exclusively occur for murder, rape, serious sexual offenses against children, arson, armed robbery, and major drug offenses.

It is important to note that the legal sentencing guidelines do not provide reliable guidance on the usual sentencing for a particular type of offense. Whether the maximum sentence is three, six, or ten years will generally not play a significant role in the level of punishment if the minimum sentence is the same in all three cases.

In more common offenses, the tradition of sentencing exists as a given amount that is only subject to slow changes. The Supreme Court has emphasized that "increasing penalties without basis in a legislative change always contains a certain element of retroactivity. Even though this cannot prevent the Supreme Court from raising the level of punishment, the consideration that penalties for somewhat similar serious crimes should not vary too greatly must be taken into account."

Grading According to the Objective Seriousness of the Act

Extent of Damage

The extent of damage or the scale of the criminal activity plays a significant role in sentencing. This is reflected both in the differentiation of the legal penalties (e.g., the relationship between bodily harm, assault causing bodily harm, and aggravated assault causing bodily harm) and in the determination within the individual crime category.

Grading the punishment in relation to the damage or extent is justified by both general preventive considerations and the need for a reasonable relationship between crime and punishment. In practice, the harmful effects of the act often play a significant role, even if these effects depend on chance. This is reflected in the rule that attempts should be punished less than fully completed crimes.

Danger of the Act

The extent of the danger caused by the act must also be considered in sentencing, even if it has not resulted in harm. This is particularly significant in offenses that endanger life or health.

Complicity

That several people were involved in the crime can work both in a mitigating and aggravating direction. For leaders, it must usually be an aggravating circumstance, especially if they have exploited others' inexperience or dependency to involve them. For accomplices, however, this can be a mitigating circumstance.

Situation of the Act

The situation of the act can have implications for sentencing. If the perpetrator was subjected to a particular temptation, this is an excusing factor. Conversely, it shows a particularly firm criminal intent if the individual had specific obstacles to overcome.

Grading According to the Perpetrator's Subjective Guilt

Degree of Intent or Negligence

Within criminal negligence, there are many degrees, from the borderline of non-criminal acts to the borderline of intent. Within intent, there are also nuances. An act committed in a moment of passion will generally be judged more leniently than one resulting from a well-considered decision.

Motive

The more or less reprehensible nature of the motive often has significance for sentencing. A theft committed to help a friend in need is usually treated more leniently than one carried out to obtain money for intoxicants. However, the decisive factor is whether the motive deviates from what can be considered the normal type for the respective crime.

Youth and Advanced Age

Young age is considered a mitigating factor. This is clearly expressed in section 55 of the Penal Code on the ability to go below the usual sentencing range when the perpetrator is under 18 years old. The reason for the more lenient judgment is partly because the same judgmental ability as adults is not expected, and partly to save the young person from detention.

Advanced age can also be a mitigating circumstance, partly because crimes committed by an elderly person may be due to a mental decline as a result of age, and partly because serving a prison sentence can be particularly harsh. However, especially in sexual offenses against children, the courts in recent years have applied unconditional imprisonment even if the perpetrator was well over 70 years old.

Previous Conduct

Previous conduct has considerable significance, not only for the choice between a conditional and unconditional sentence but also for the length of a prison sentence. The repeat offender is treated more severely than the first-time offender.

An increase in penalty for repeat offenses can be justified in different ways:

• Individual preventive: The recurrence shows that the previous sentence was ineffective

• General preventive: Those not influenced by the usual threat of punishment shall know that they risk harsher punishment

• Justice consideration: The one who offends again has shown greater guilt

In practice, previous sentences often lead to a schematic increase in punishment. However, the trend has been moving towards a more individualized assessment, especially for individuals showing signs of rehabilitation.

Intelligence and Personal Attributes

Limited mental abilities are usually regarded as a mitigating factor in sentencing. There is a sense that there is not the same basis for moral condemnation of those inadequately equipped as of the normal individual. This is particularly evidenced if the deviation can be attributed to illness or accident.

According to section 56 letter c of the Penal Code, the punishment can be reduced below the usual minimum and to a milder type of punishment when the offender acted in a state of mental deviation that was not so profound as to entitle exemption from punishment.

Environmental Conditions

Unfortunate or unhappy environmental conditions are generally regarded as a mitigating circumstance, especially for young offenders. This applies, for example, to upbringing in homes characterized by substance abuse, violence, or neglect, and other tragic life circumstances.

Intoxication at the Time of the Crime

A large proportion of all crimes are committed in more or less intoxicated states. According to section 56 letter d, the punishment can be reduced when the act is committed under unconsciousness due to self-inflicted intoxication, and especially mitigating circumstances speak for it.

Normally, however, self-inflicted intoxication will not be given significance either in a mitigating or aggravating direction. However, particularly where an otherwise law-abiding person has committed a serious crime during incidental intoxication, there may be grounds for considering the matter more leniently.

Sentencing Factors Outside of the Act Itself

Perpetrator's Conduct After the Act

If the perpetrator has shown remorse by trying to make amends for the harm, this is a significant mitigating factor. Also, an honorable conduct after the act is significant if the offense is prosecuted after a long time.

Passage of Time

The passage of time between the act and the judgment is significant. The need for punishment decreases and counter-considerations become stronger as time passes. A long time interval can also activate the provision in Article 6, No. 1 of the ECHR that an accused has the right to have a criminal charge dealt with within a "reasonable time."

Confession and Cooperation with the Police

According to section 59, 2nd paragraph of the Penal Code, the court shall "consider" whether the accused has made an unreserved confession. This will normally result in a sentencing reduction. There is also established practice that cooperation with the police to solve the case, especially when it comes to uncovering other accomplices, is taken into account in a mitigating direction.

Other Factors

Other factors that may have significance for sentencing include:

• The need for a reasonable relationship between penalties for accomplices

• Whether serving the sentence will be particularly harsh due to illness or other circumstances

• Whether the offense has led to serious consequences for the guilty party in addition to the sentence

• Whether the accused has been held in custody

Individual Preventive Considerations

In the choice of punishment, the judge will often consider what effect the sentence will have on the defendant's future social adjustment. The skepticism that has gradually arisen concerning the possibility of judging what is the individual preventative appropriate reaction suggests caution in placing decisive weight on such assessments.

Less worrying is deviating from the norm in a mitigating direction for individual preventative reasons, such as when a previously convicted person receives a conditional sentence or community service because they are in a promising rehabilitation situation.

Conclusion

Sentencing in Norwegian law is based on a balancing of a number of factors related to both the act and the perpetrator. The courts, led by the Supreme Court, have developed norms that greatly limit the freedom that the broad sentencing ranges seemingly provide. At the same time, the system is flexible enough to accommodate unique circumstances in individual cases.

While general preventive considerations and the immediate sense of what constitutes a reasonable punishment often determine the general level of sentence, more individual circumstances play an important role in the determination in the specific case. This provides a system that both ensures equality and allows for individualization.