THE PHILOSOPHY OF CRIMINOLOGY WHEN
SENTENCING IN THAI COURTS: A CASE STUDY OF
INTENTIONAL, NEGLIGENT AND PROVOKED CRIMINALS


UTID SUPARP*


I. Executive summary

Research was undertaken to study the concept of applying the philosophy of criminology to the sentencing procedures in Thai Courts, and to analyze the Judges' doctrines on the primary research findings. The study was conducted by a documentary based and in-depth interview approach, focusing on cases of criminals by nature and criminals by mistake. One thousand two hundred and forty nine Judges who were in their judicial positions for over 10 years, were chosen for the study. Questionnaires were given to all the selected Judges and the percentage of agreement on the primary research findings was used to evaluate the extent to which the Judges agreed with such conclusions.

The research findings revealed that sentencing should be pertinent for both the offence and the offender. The two elements of sentencing were the facts of the case and the theoretical principles. The facts of the case are an overviews of the circumstances of the case and the offender's history. The major theoretical principles are the theoretic principals of retribution, prevention, rehabilitation and social protection. To apply the punishment theories to the sentencing regimen, the findings recommended the integration of more than one exclusive theory, by emphasizing one and taking others as supplementary. Theoretical principles are suggested for the different cases, the retribution theory for cases involving serious offences; the rehabilitation theory for less serious cases; the prevention theory for recidivists. The types of offenders, criminals by nature or criminals by mistake, should also be taken into account. Principally, the sentencing should be in proportion to the seriousness of the offence with an except in the case of provoked offenders where the penalty may not be in proportion to the offence. In the contrary situation, recidivists or repetitious offenders should be sentenced to an especially harsh or even the harshest penalty, as the case may be.

The present study recommends, the exercise of integrated measures for the sentencing regimen. To be appropriate for both the offence and each specific offender, Judges shall rationalize the facts of the case and the punishment theories, in their exercise of discretion on sentencing, such that the sentencing is competent and may result in more effective prevention of crimes.

II. Background and Rationale

In the Kingdom of Thailand, the King as the head of State can be clearly traced back to the time of the Sukhothai Kingdom. It is on this principle that the King is the foundation of Justice. The King maintains the power of adjudicating in all cases and this can be exercised by the King or by his designated Judges. Although, Thailand has changed from a Monarchic to a Democratic system, the King still maintains the same status as the Head of the State. At the present time, the King exercises power through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of the Constitution of Thailand. The Courts of Justice have powers to try and adjudicate all cases, except those specified by the Constitution or laws that may be within the jurisdiction of other Courts. These consist of three levels, viz., Courts of First Instance, Court of Appeal and the Supreme Court of Justice. As for criminal cases, the Courts of Justice are one of the authorities in the Criminal Justice Process , the power of which is to try and adjudicate on criminal cases. The Court trial is the fact finding process in which the truth of guilt stated in any claim is ascertained and used as a tool in deciding the case, while the judgment stage is that of the Judges' making a decision on whether or not an accused is guilty. When the accused is found guilty, the judgement process is continued into the sentencing stage. In this connection, are based on two material substances: the adjudication of guilt and sentencing. An adjudication of guilt means that the Court gives a judgement on whether or not an accused is guilty, in accordance with the charge. The Judge in the case shall weigh all the evidence presented to him, until he is fully satisfied that an offence has actually been perpetrated and that the accused has committed that offence. Where any reasonable doubt exists as to whether or not the accused has committed the offence, the benefit of doubt shall be given to him. In other words, if the Judge considers all the evidence submitted by the prosecutor and is uncertain that the accused has committed the offence, regardless of whether the accused pleads guilty or not, he will dismiss the charge. On the contrary, if the Judge examines all the evidence and makes certain that the accused commits the offence, he will make a conviction and then inflict punishment on the accused in accordance to with Criminal Procedure Code. The problem of exercising a Judge's discretion at the trial stage depends on the extent to which the Judge is flexible and sees an opportunity to include evidence in the wider sense than that determined by the Law.

Sentencing in a criminology regime means the formal judgement of the Court, given to the accused who pleads guilty or who, following his judgement, becomes the offender. The sentencing decisions include conditional or unconditional Probation, a fine, the death penalty, penalties as provided by special laws, social work as determined, reparation, corporal punishment, imprisonment or other punishments2.


In common law countries, it appears that the process of the adjudication of guilt is completely separated from that of sentencing and is known as Bifurcation. The reasoning lies in the fact that they maintain the criminal trial Accusatorial System which relates to a fact finding process known as the Adversary System or Fight Theory. Both parties to the case have a duty to find out the truth and they maintain equal status. They are fighting each other in order to reveal the true facts of the case. They are entitled to present their own witnesses and evidence before the Court who shall be impartial in the case. The Court plays a less important role in seeking the truth and its role is also limited by the admissibility of all evidence under the effect of the Exclusionary Rule. It may said, as a result, that the facts, with regard to the accused, have a little room in the trial process and the case file. The sentencing phase, therefore is taken apart from the adjudication of guilt phase, in order that the Court is not bound to be impartial during the sentencing process. Furthermore, the Court at this stage will feel free to fully investigate the accused 's background. For example, the Court may order a probation officer to gather information concerning the accused, such as his prior convictions, educational history, employment history, family and social background, physical and mental condition, occupation and personal habits, or other information which may assist sentencing. Such information will then be used in the Court's exercise of discretion on any imposition of punishment, to fit each individual offender and the nature of the offence.

Unlike common law countries, civil law countries adopt system where the adjudication of guilt and the sentencing can be simultaneously carried out. The criminal trial process in the civil law system is not based on the fight theory but rather on an Inquisitorial System or non-fight theory, under which police officers, public prosecutors, attorneys, and Courts jointly perform the duty of finding out the truth. All these authorities will be separate as investigators or will separately seek the truth, for example, in a criminal trial, the Courts will undertake the role of questioning witnesses while the prosecutor's role is to assist Courts in searching for all related evidence to be taken into consideration by the Courts. In such cases, the facts in relation to the accused are revealed during the trial rather than being revealed in the later stages of the Accusatorial System. At the time that the Court has determined that the accused is guilty, he can also sentence him to his penalty. At this stage, it is reasoned that the Court has obtained adequate information in relation the accused to impose the proper punishment.

In Thailand, despite maintaining a civil law system, the law on evidence contains both the accusatorial and the inquisitorial concepts. This presents a mixed system. In practice, Thai Courts have maintained an impartial status. Thai Courts have not performed the duty of searching for the truth as the Courts in civil law countries would normally have done. This may be associated with the fact that most previous Judges graduated from England, where they were influenced by the common law principles of a criminal trial. Thai Courts accustomed themselves to such an application and this practice has been observed and followed by the successors up to the present day. Consequently, unlike the Inquisitorial System, there are rare possibilities for the facts in relation to the accused to be presented at the trial and included in the case file, unless the accused himself produces or makes a statement of facts regarding himself, in his application for reducing the penalty. As in criminal cases where the law provides for the punishment of imprisonment, not exceeding five years as the minimum rate, the law also provides that if the accused pleads guilty to the charge, the Court may give judgement without taking any further evidence. The Court, in practice, gives the judgement, which includes the determination that the accused is guilty and the sentencing, together, without taking any other related evidence. Therefore, the Court has no chance to acquire further facts regarding the accused or the circumstances of the case during the trial, beyond the facts that appeared in the public prosecutor's charge. By virtue of the sentencing guidelines or "Yee-Tok", the Court will decide on a method of punishment and the penalty, e.g., how long the Imprisonment, how much fine is to be imposed, or whether to suspend the infliction of punishment and whether probation should also be required. Most of the Judges restrict themselves to the guidelines stated in "Yee-Tok", without searching for additional facts and consider it as part of their exercise of discretion on the imposition of punishment, proper for each individual case. It appears that the majority of Thai Judges put more emphasis on the process of adjudicating guilt than that of sentencing. For example, in the discussions of the judicial panel, Judges underlined the adjudication of guilt to be the main issue of discussion. Any consideration of the sentencing issue became insignificant. The justification of this may be the lack of data in relation to the facts obtained during trial or the attitude of Judges who believe that sentencing is only the process of complying with "Yee-Tok" and remaining within the scope of the law.

A study on the history of Criminal law, regardless of the system of law used, shows that the concept of crime and punishment has existed since ancient times. This kind of concept is part of human common sense, namely that any person who commits a crime should be punished, and this remains a collective sentiment of society. The methods of punishment are differentiated by each society and may change over periods of time. The concept of whether the punishment should take into account it's effect on the offender and society as a whole, is important and should be taken into consideration when sentencing. For these reasons, sentencing is a significant duty of Judges so that they achieve the greatest efficiency and retain it's important position in the criminal justice process. As for the latter, punishment can cause fear to the offender, make him observe the law and be afraid of committing crimes. If the Judge, by his own discretion, passes an improper sentence, then, the Law can no longer be sacred and the confidence and acceptance of the criminal justice process among people can be lost. This may result in complete failure and ineffectiveness of the Law as a measure of crime prevention and control, followed by social unrest and the expansion of self-revenge. In comparison, the judicial task may be similar to that of a medical doctor, in that the doctor performs a major function in the prevention and control of many diseases. He diagnoses the patients' illness and then provides proper treatment. In diagnosis and treatment, the doctor is required to consider the facts such as the history of the patient and to study all necessary evidence such as pathology or pharmacology, in order to utilize the proper treatments to curing the illness effectively and completely. Similarly, the Judge performs an important function in the prevention and control of crimes. The crimes, here, are equal to the diseases that exist in every society. The Judge, in the adjudication of guilt and sentencing, must take into account many facts, such as the circumstances of the case and the history of the offenders and must study all necessary supplementary subjects such as law or penology, in order to apply the correct punishment theory, appropriate sentencing of the offenders and their proper treatment so as to improve and correct them and prevent them from repeating crimes.

In this connection, judicial discretion should be exercised in a just, sound and non-arbitrary manner. The Judge shall sentence the offender in conformity with the objectives of criminal punishment and in a manner appropriate with the facts of the case and the criminology theories. The exercise of judicial discretion forms a vital part in all laws having criminal enforcement, because these kinds of laws have a general effect on all persons. Any people who violate such laws must be punished. In general, people commit crimes for different reasons, thus, the goals or objectives of punishment should be applied to offenders differently, according to the nature of the offences and the offenders, on a case by case basis. This emphasizes the notion that discretion on sentencing should be exercised to suit the facts of each individual case. In connection with this rule for exercising Thai judicial discretion, Thai Judges, at the outset, shall exercise discretion under the framework of laws as promulgated by legislators. For instance, the Penal Code provides different methods of punishment, which can be death, imprisonment, confinement, fines and forfeiture of property. It is on the Judges' own discretion to impose reasonable forms and methods of punishment which is appropriate for the offences and the offenders. Regarding penalty rates, the legislators control the Judges' discretion by prescribing a range of rates such as, maximum and minimum rates or sometimes only maximum rate, so the Judges may impose a reasonable one within the scope of law. However, unlike the Law of some countries, such as Germany, Japan or Italy, both the Penal Code and the Criminal Procedure Code of Thailand do not contain any specific provisions dealing directly with the matters to be considered such as the guidelines for the sentencing made by Judges to be in accordance with the intention of the Law, which requires sentencing to be flexible and consistent with reality as is possible. The Penal Code of Thailand only contains provisions in relation to the infliction of confinement, in lieu of imprisonment, an increase, reduction, suspension of punishment or a suspension of sentencing, which gives the Judge discretion on a case by case basis and cannot be applied as a general rule for all cases.

Consequently, it is necessary to establish the general principles or academic instructions as guidelines on sentencing, in order to remind Judges to take them into account every time, when exercising their own discretion on sentencing. Previous scholars have identified two important elements regarding the relevant sentencing: the facts of the case and the theoretical principles. To pass sentences that fit offenders and their offences, the Judges need to take into account of the facts regarding the circumstances of the case and the offenders' history when sentencing. This is to ensure justice and the appropriateness of the sentence for individual offenders. Though there are a number of facts relevant to this issue, the most important and popular ones are not just limited to the nature of the offences, the nature of the victims, the outcome of the offences, or the public interest Judges shall also inflict penalties that are suitable for the facts and he shall do so, so as to be appropriate for criminology theories and consistent with the objectives of punishment, such as retribution, prevention and rehabilitation.


III. Research Methodology

The present study conformed to a research conceptual framework based related theories, verdicts from previous studies and a literature review. The concepts arrived at were then analyzed and synthesized by the researcher so as to be a guide for determination of the conceptual framework of this research. Several issues were included in the conceptual framework; the application of the philosophies of criminology to sentencing, problems and solutions of such applications, and are illustrated in Figure 1.

IV. Research Finding


A. Discretion on Sentencing

The Probation Procedure of the Penal Code, B.E. 2522, provides Judges with the power to order probation officers to investigate and appraise defendants only in cases where the Judges may impose an imprisonment penalty not exceeding 2 years. In the case of offences subject to a higher penalty rate or in felony cases, the Judges can not make such orders. Because of this limitation, Judges may pass sentences relying on the sentencing guidelines and facts which appeared only in the case files. That certain facts are ignored in passing sentences may create a situation where Judges impose penalties unfitting for offenders. For example, sentencing without taking into account the offenders' background may cause recidivists to be punished with same or similar penalties as first time offenders, rather than harsher ones. Furthermore, Judges who strictly rely on the sentencing guidelines may cause them to pay less attention, not only to finding the related facts that could be considered for more proper sentencing but also to a study of the relevant theories to be applied in the face of such facts. The effect of this is that the imposition of penalties on defendants cannot always conform with the objectives of criminal punishment and be appropriate for the offences and the offenders.

Above all, sentencing without the full facts of the case may also increase disparities of sentencing. For instance, in two theft cases with similar facts, the Judge in one case may impose an imprisonment penalty on the accused, while the Judge of the other case may sentence the accused to probation. Generally speaking, it is normal that people have their own opinions when exercising discretion, because, in the sentencing process, there is no tool such as a thermometer or scales, to ensure the penalties be equal in all cases. If such disparity of sentencing is not justified and based on rational decisions, equality will not be maintained. This will then affect the justice system as a whole, e.g., the convicts may feel unfairly treated, which may result in their non-acceptance of any correction program or a violation of prison disciplines; the convicts, themselves as well other people in general may then not respect the Law and the criminal justice process.


Figure 1 The conceptual framework of the research

It may be concluded at this point that the exercise of judicial discretion plays a significant role in sentencing process. The Judges have do so in a prudent and careful manner. They shall consider the facts and theories as well as the guideline that assists them, so that they can justify their sentencing options. Due to the large number of facts in cases, all of which cannot be gathered, it is the Judges' duty to seek out and to choose the most relevant ones to be applied when making his decision on sentencing. To achieve this, the Judges shall also take account of criminology theories, such as the sentencing concepts of the Neo-Classical School. This school of criminology follows the principle that the determination of punishment should be in conformity with any objectives and should always take all facts into account, especially the circumstances of the case and the history of the offenders. In other words, bringing the facts and the theories into the sentencing process, shall always be at the exercise of the Judges' discretion. The need for right and legitimate rules arises, in order for there to be a framework for a sound and reasonable discretion on the selection of such facts or theories. Without such rules, an arbitrary discretion from each individual Judge can arise and the disparity of discretion on sentencing, in terms of the main substances, may definitely appear, e.g., the imposition of imposing different methods of punishment or types of penalties Problems in the exercise of Judges' discretion as described above have been specified as 1) The selection of punishment methods or types of penalty, and 2) The determination of the penalty rate.

A(i) The selection of punishment methods or types of penalty

The Judges exercise their own discretion on the infliction of penalties by the selection of the punishment methods that fit the offences and the offenders. In other words, the methods of punishment or the types of penalties (death, imprisonment, confinement, fine or forfeiture of properties, suspension of punishment, suspension of the determination of punishment, or probation) should be imposed in proportion to each offence and each individual offender, with the aim of preventing him from repeating the crime or to make him fear committing any of them. As an example, in the case of murder offences, Criminal Code options that the Judges may select, are death, imprisonment for life or imprisonment for fifteen to twenty years. Because the law provides more than one option, a practical problem occurs in relation to the most reasonable forms of penalty that the Judge may select. The discretion of Judges on this matter may be exercised differently, if each of them believes in different concepts or theories. Consequently, it should be the Judges who conduct the study on the application of the related theories so as to select the proper penalty. This is of great benefit in the content of the most effective means of crime prevention. If Judges decide to impose penalties unsuitable for the offenders this may increase the number of crimes.

A(ii) The determination of the penalty rate

Discretion on the determination of the penalty rate reveals the notion that the reason for in equality in penalty rates which arise out of the Judges' discretion comes, from a number of basic elements. Among them is the variety of personal characteristics of Judges, such as personality, habits, knowledge or education, experience and belief. All these influence the variety of ways of thinking and the discretion used about sentencing. A moderate penalty rate, can intimidate and prevent the offenders from recommitting crimes, and can discourage other people from following them. On the other hand, an unreasonable penalty rate will be useless and may bring about harmful results, i.e., it can stigmatize the offenders and can make them become professional criminals, as supported by the Labeling Theory. If, for example, a provoked, first time offender is sentenced to imprisonment of an excessively long period of time, he may lose his own personal character strengths and separate himself from society. There may also be a possibility that he may learn something bad from other offenders or from professional criminals in the same prison in accordance with the Differential Association Theory. Correctional treatment, in such cases, cannot be worked out. Instead of long-term imprisonment, such an offender may be helped more with other penalties which can make him repentant. Above all, excessively long term imprisonment may harmfully effect the budgetary expenses of the government.

B. The etiology of the problem in the discretion in sentencing

B(i) Any inadequacy of facts in the grounds for sentencing:

Effective sentencing requires a number of facts, but, in practice, it is difficult for them to be acquired because of many limitations. For instance, the small number of Judges and probation officers results in an inability to seek the facts in regards to all offenders. Moreover, the pursuit of such facts is limited by the law which provides that the Court only has such power in cases where the Court can punish with imprisonment not exceeding two years. In other words, the Court does not have the power to seek the relevant facts in the case of severe offences. Such limitations are a major cause of the problem as without of facts, sentencing cannot be suited to each individual offender.

B(ii) Non-uniformity in applying the philosophies of criminology to sentencing:

The Judges may be confused in the application of punishment theories in sentencing. As the objectives of each philosophy are in some parts either similar or the same and in other parts different, a conflict of their application in practice occurs. The philosophies of criminology on punishment, cannot therefore be applied to the mutual benefit of all cases. Applying only one of them without taking the others into account cannot completely achieve the objectives of criminal punishment and furthermore cannot bring about the ultimate benefits.

B(iii) The variety of Judges' characteristics:


Each individual Judge has his own history, personality, habits, knowledge or education, experience, and beliefs. This reflects the diversity of Judges' thinking, attitude, viewpoint and rationale. Some of them are strict, while some are kind. Some believe in the retribution theory, while some believe in the rehabilitation one. All of these differences are reflected in the problem of sentencing disparity.

As for the practical solution to the problems, the Court has instituted an instrument called a "sentencing guideline" or "Yee-Tok" in order to prevent any disparity of sentencing. However, these sentencing guidelines are still not able to fully assist the Court in ensuring sentencing is suitable for individual offenders. The reasons behind this are its inflexibility and the inadequacy of the detailed facts. The current situation is that most of the Judges pass their sentences in accordance with "Yee-Tok", from the need for speed, convenience, the unbalance between the number of Judges and the caseload and to protect themselves from any disciplinary investigation. If the Judge passes a sentence inconsistent with "Yee-Tok", he may be blamed or claimed by the others to have a conflict of interest or be involved in corruption. Therefore, the Court has to adhere to the "Yee-Tok" as the key handbook for sentencing, without being too active in searching for any relevant facts and theories that might be to be applied to the sentence. The effect of this is inappropriate sentencing and inconsistency with the theories of punishment.

There are many effects on the criminal justice process which result from this sentencing problem and the unreasonable discretion of the Judges on the determination of punishment. For example, the law may be no longer sacred and the number of crimes may increase. Discretion on sentencing is thus an important process in the criminal justice process and also forms a major problem in supporting criminal justice. Unreasonable and non-theoretical sentencing, such as imposing improper penalty rates or methods of punishments, independent of the extent to which the criminal judgements contain clear and reasonable adjudication of the facts and laws, will affect public peace and order. Despite this it is true that punishment alone cannot make the offenders improve or become corrected and cannot prevent or suppress repeated crimes. The increase of recidivists presents a good example of this fact. In 1997, the number of offenders under probation were 9,688, out of which 2,827 of which were re-arrested and put on retrial (Department of Probation, 2000). This shows that the offenders are not terrified by the punishment and also that the correction program was ineffective Instead, they committed more crimes. In addition, this results in the overcrowding of prisons. The sentencing made by the Court only focuses on the offences of the offenders, without taking much account of the offender themselves or their background, causes the imposition of similar sentences for criminals by nature and criminals by mistake. Most Judges punish offenders with imprisonment rather than by other measures. As a result, prisons are places for all kinds of criminals and are overcrowded. This can be seen by the increasing number of prisoners. At present, the prisons contain 200,000 prisoners, whereas their capacity is only 90,000. In the past three years, the number increased by an average, 35,000 per year. Apart from this, it appears that the Courts of Justice themselves are directly affected. The number of cases brought before the Appeal Courts and the Supreme Court, at the present, are increased considerably. Most of them relate to the issue of unreasonable sentencing, excessively harsh or inadequately light penalties. The prosecutors or the accused in such cases are unsatisfied and do not accept the convictions of the Courts of First Instance, because of the diversity of standards in the exercise of discretion on sentencing both in the Courts of First Instance and the High Courts. The result would be reversed, if the Courts could, hold a common standard. The cases, could then, be speedily settled without any further appeal or dika appeal, due to satisfaction and acceptance of the results by the parties and other interested persons and the caseload of the High Courts could be significantly decreased. All of the problems discussed earlier can be seen in the following.

Figure 2 which shows a summary of the relationships between the elements which are related to sentencing.


C. The philosophy of criminology in sentencing

The philosophy of criminology is a concept related to the commission of an offence and the search for the cause of such offences, including the concept of prevention, crime control and the treatment of offenders, by the sanction of penalties and the rehabilitation of offenders. Reliance is placed on causes and effects, including the use of scientific explanations to certain phenomena and a systematic approach to the problems encountered, such as the presence of various theories to explain phenomena and a systematic approach to finding solutions to the various problems, as well as testing and experimentation to verify the results. As for the treatment of offenders, a branch of criminology, called penology, a subject related to the punishment of offenders, has expressed a number of theories for punishment, the retributive theory, the preventive theory, the rehabilitative theory and the social protection theory. Each of these theories are important in the sentencing process, enabling the imposed penalty to be appropriate to each offence and offender.

The retributive theory states that the punishment must be appropriate for the offence committed or in other words, in proportion to the offence committed. The prevention, rehabilitative and social protection theories, on the other hand, state that punishment must be appropriate for the offender.

Briefly stated, punishment theories are important in the sentence given by Judges, providing the conceptual framework for the application and adaptation of the facts provide greater consistency for the purpose of criminal sentencing (Figure 3)

Guidance for the combined application of punishment theories may be divided into 3 sections: 1) serious offences; the retributive theory is primarily applied and is supplemented by other punishment theories, 2) minor or petty offences; the rehabilitative theory is primarily applied and is supplemented by other punishment theories, 3) recidivism, the social protection theory is primarily applied and is supplemented by other punishment theories.(for justice or social protection) (offenders or society) past future.

Figure 3 Methods of crime prevention and the treatment of offenders under the punishment theories.


D. Concept of applying the philosophy of criminology to sentencing

D(i) Criminals by nature (intentional offenders) may be categorized into 6 cases:

1. Criminals by nature (intentional offenders) who are first-time offenders
( with a good chance of rehabilitation) and who have committed a serious offence should, in principle, be severely sentenced by imprisonment for rehabilitation.
2. Criminals by nature (intentional offenders) who are recidivists (not frequent and with some chance of rehabilitation) and who have committed a serious offence should, in principle, be sentenced more severely than is usual for such a case (increasing the penalty) where imprisonment is imposed for rehabilitation and in order to remove the offender from society. Safety measures will be imposed as a supplement.
3. Criminals by nature (intentional offenders) who are frequent recidivists (habitual offenders or instinctive offenders with little chance of rehabilitation and who have committed a serious offence should, in principle, be sentenced more severely than is usual for such a case (increasing the penalty) and imprisonment imposed for rehabilitation and in order to remove the offender from the society. Safety measures will also be imposed as a supplement.
4. Criminals by nature (intentional offenders) who are first-time offenders (with a good chance of rehabilitation) and who have committed a minor offence should, in principle, be sentenced lightly, without imprisonment, as a means of rehabilitation. Behavioral control is more appropriate (rehabilitation outside prisons), except in some cases where imprisonment is necessary for rehabilitation.
5. Criminals by nature (intentional offenders) who are recidivists (not frequent and with some chance of rehabilitation) and who have committed a minor offence should, in principle, be sentenced more severely than is usual for such a case (increasing the penalty), they should not be imprisoned for rehabilitation (behavioral control should be applied instead), except in some cases where imprisonment is necessary for rehabilitation and remove from society as is required for safety measures.
6. Criminals by nature (intentional offenders) who are recidivists (habitual offenders or instinctive offenders with little chance of rehabilitation) and who have committed a minor offence should, in principle, be sentenced more severely than is usual for such a case (increasing the penalty) and imprisonment imposed for rehabilitation and in order to remove the offender from society. Safety measures will also be imposed as a supplement.

D(ii) Criminals by mistake are discussed as negligent criminals and provoked criminals.

D(ii a) Negligent criminals are categorized into 6 cases:

1. Negligent criminals/offenders who commit first-time serious offences
(with a good chance of rehabilitation) should, in principle, be severely sentenced by imprisonment, as a means of rehabilitation, except in cases where imprisonment is unnecessary, such as where reasonable compensation has been paid.
2. Negligent recidivists who commit serious offences (not frequent and with some chance of rehabilitation) should, in principle, be sentenced more severely than usual in such a cases, with imprisonment as a means of rehabilitation. This should also be supplemented by safety measures, except in some cases where imprisonment is unnecessary for rehabilitation (in which case behavioral control will be imposed instead).
3. Negligent recidivists who are repetitious or habitual offenders (with little chance of rehabilitation) committing serious offences should, in principle, be sentenced at the highest level, with imprisonment as a means of rehabilitation and as a supplemented for safety measures.
4. Negligent first-time offenders (with a good chance of rehabilitation) committing minor offences should, in principle, be sentenced lightly without imprisonment as a means of rehabilitation (behavioral control is preferred).
5. Negligent recidivists committing minor offences (not frequent and with some chance of rehabilitation) should, in principle, be more severely sentenced than is usual for such a case and without imprisonment, as a means of rehabilitation (behavioral control is preferred), except in some cases where imprisonment may be imposed for rehabilitation as supplemented by safety measures.
6. Negligent recidivists (with little chance of rehabilitation) committing minor offences should, in principle, be sentenced more severely than is usual for such a case with imprisonment as a means of rehabilitation as supplemented by safety measures.

D(ii b) Provoked criminals are categorized into 6 cases:

1. First-time provoked criminals/offenders (with a good chance of rehabilitation) committing serious offences, should, in principle, be sentenced to a reasonably severe penalty, with imprisonment as a means of rehabilitation, except for some cases where penalties may be reduced, without the need for imprisonment, when it appears that the offender was severely intimidated or the victim greatly contributed to the cause of the offence.
2. Provoked recidivists (not frequent and with some chance of rehabilitation committing serious offences should, in principle, be sentenced to a harsher penalty than is usual (maybe with an increase in penalty), with imprisonment as a means of rehabilitation as a supplemented to safety measures. In some cases, imprisonment may not be necessary (rehabilitation by behavioral control may be preferred).
3. Provoked repetitious or habitual recidivists (with little chance of rehabilitation) committing very serious offences should, in principle, be sentenced to a harsher penalty than is usual (with an increase in penalty), with imprisonment as a means of rehabilitation and the removal of the offender from society as a supplemented for safety measures.
4. First-time provoked offenders (with a good chance of rehabilitation) who commit a minor offence should, in principle, be sentenced lightly without imprisonment, as a means of rehabilitation and where behavioral control is to be preferred.
5. Provoked recidivists (not frequent and with some chance of rehabilitation) committing minor offences should, in principle, be sentenced to a harsher penalty than is usual, without imprisonment, as a means of rehabilitation (behavioral control is preferred), except in some cases where imprisonment is necessary for rehabilitation as a supplemented for safety measures.
6. Provoked habitual recidivists (with little chance of rehabilitation) committing minor offences should, in principle, be sentenced to a harsher penalty than usual for such cases (increase of penalty) with imprisonment as a means of rehabilitation as supplemented by safety measures.

D(iii) Recidivists who commit different offences such as intentionally committing an offence and negligently committing an offence. Most Judges consider that a harsher penalty should be given after the third offence is committed.

Briefly stated, the qualitative and quantitative research findings consistently showed that the philosophy of criminology is important in sentencing by Thai Courts in order that penalties may be most suited to the offence and the offender. The conclusions from this research should be applied to the improvement in the exercise of discretion in sentencing to give greater efficiency. This will result in better sentencing for the prevention and control of crime, a point consistent with the hypothesis stated.

IV. Recommendation

The findings made from this research suggest the need for a more efficient sentencing system in Thai Courts. Various aspects have been derived from this study:

A. Responsible agencies

Agencies responsible for the enforcement of judgments and Court orders, in accordance with the provisions of law on criminal sentencing, must be efficient. Existing agencies related to the execution of judgments and Court orders in the sentencing process, such as the Department of Probation and the Department of Corrections should have a clear plan for implementation and readiness, in terms of personnel, premises, equipment and budgets so that an efficient operation concerning judgment or Court order, which is acceptable to society can be made. A probation officer, for example, should carry out his duties diligently and faithfully and report his investigations and behavioral control results accurately. This would generate trust in the Judge and the data obtained. The probation officer should also carry out the investigations speedily, in order that sentencing may be made in as short time as possible.

B. Personnel resources

Research findings suggest that Judges should be acquainted with criminology and penology and be soundly concerned with the significance of sentencing. Variations in sentencing and sentencing concepts are consequences of the differences in experience and learning of each Judge and an inadequate knowledge of the basic principles. Discretion in sentencing cannot be exercised consistently by different Judges, which results in differences in sentencing both by the same Court and between the First Instance and Appeal Courts. As a result, more sentencing appeals are sent to the Appeal Courts. The researcher considers that there should be a provision in the Law, that lays down general principles for the exercise of discretion in sentencing. This principle should state the factors which a Court should consider, in order to provide a framework for Thai Courts to, accurately and consistently, exercise their discretion in sentencing.

C. Operation system for sentencing

C(I) The facts of the case

The offender's background history should be of greater importance than the severity of the case, in the consideration of sentencing. The facts about the offender's background history would suggest whether such offence was the offender's first offence or a repeated offence, as well as the root cause of the offence and the circumstances and environment of the offender, so that an appropriate sentence would be given. Instinctive offenders with little chance of rehabilitation will accordingly be imprisoned for a long period of time, and prevented from causing trouble to society. The offender's background history is also important for punishment system within the prison, for a different treatment may be imposed on criminal offenders as compared to negligent offenders.

An inquiry or an investigation of the facts by the Court and the probation officer should be undertaken speedily so that the facts obtained may be immediately applied to sentencing, once the case is concluded and the Court convicts the offender.
This enables the speedy execution of punishments which effectively acts as a deterrent and preventative effect, in line with law enforcement theory.

C(ii) Information on the offenders

Such information should be complete and be easily and accurately retrieved. A readily accessed network should be established between judicial agencies and other related agencies, including within each Court agency within each Court, in order that a more efficient judicial system may be established. The information, for example, can be used as evidence in the prosecution, a plea for increasing the penalty or for the Court to impose a heavier penalty. A reform of the Thai sentencing system should therefore start as a reform of the information system on offenders. This is of the greatest priority, since it will have an effect on the differentiation between the treatment of criminal and negligent offenders. This has always been a problem for the Thai judicial process and has been neglected for a long time. It needs to be modified for greater efficiency.

C(iii) The sentencing system

The following reforms should be imposed on the system of penalty reduction in prisons, pursuant to sentencing in the Courts: (1) offenders who are not instinctive criminals or first-time serious offenders, should be given an opportunity to earn remission by acquiring a reduced penalty, such as a suspension of punishment; (2) offenders who are instinctive criminals, such as recidivists should not be entitled to a reduction in penalties so that the offender will bear the sentence imposed by the Court, nevertheless, the system of penalty reduction should be retained as an incentive for the benefit of administering offenders in this category; (3) habitual recidivists or instinctive offenders or professional criminals should acquire a minimal reduction in penalty, compared to offenders in other categories. Offenders who are instinctively evil and are a threat to society should not be given a reduction in penalty, for the sake of the society's safety. Prisons for these offenders should be heavily fortified with officers, in suitable numbers and with a stringent safety system, to prevent an escape as these offenders, who are pressurized by the loss of hope, for freedom in the outside world.

Sentencing should not rely solely on sentencing guidelines (Yee-Tok). The current scale of penalties applies penalties that are appropriate only to the offence, since they only consider one aspect of the case, such as facts on the circumstances of the case, like the severity of the offence, the damage caused, elements of the offence, weapons used in the offence and damage to property. The other aspect, the appropriateness for the offender, is not provided for in the scale of penalties. Sentencing which does not combine the two aspects of appropriateness for the offence and the offender, lacks completeness and are inconsistent with the philosophy of criminology or punishment theories.


D. Accommodation of the legal issues

D(i) Certain provisions of the Penal Code which are related to penalty rates, should be modified for greater appropriateness to the nature of each offence.

The gap in minimum and maximum penalties should be widened to allow a greater discretion in the sentencing of each offender. An example is the Penal Code (section 288) which provides that a person who kills another shall be liable to execution, life imprisonment or imprisonment of between fifteen and twenty years. It may be observed that there is a wide gap between life and fifteen to twenty years imprisonment and an insufficient gap between the maximum and minimum penalties of only 5 years. Hence, the Court may be unable to sentence appropriately. Moreover, another problem encountered is the provision of only one penalty for an offence, such as the Penal Code (section 297) which provides the penalty of imprisonment from six months to 10 years without a fine, for the offence of causing grievous bodily harm, which if a discretion is conferred on by the Courts, it is possible that no penalties will be imposed at all. This can be contrasted to section 295, the offence of battery, a lighter offence, where a discretion exercised by the Courts may impose a fine on the offender. The researcher consider this to be a problem in enacting legislation and if the offence under section 297 is a result of the offence under 295, the penalty provided for the latter offence should be equally applicable to the former. Another problem may be illustrated by the Military Service Act, B.E. 2497, which provides for the offence of failing to report oneself upon notice, for which the penalty of not more than 3 months imprisonment or a fine of 300 Thai baht or both, is imposed under section 25, in conjunction with section 44. However, when compared to the offence of not attending military service selection, which is a heavier offence, the only penalty provided is imprisonment of not more than 3 years, under section 27 in conjunction with section 45, which if a discretion is exercised by the Courts makes it possible that the offender may not have to bear any penalty. Thus, it may be unusual that the offender of the lighter offence may have to pay a fine. The Law should provide the Court with the power to impose an indeterminate range of penalty rates, such as specifying maximum and minimum period of time for punishment, in order to aid the correction of offenders, in terms that may be more flexible and may be changed, according to behavior of each individual offender.

D(ii) The provisions of the Probation Procedure Act of the Penal Code, B.E. 2522 should be modified to confer on the Courts the power to order an investigation in every case.

D(iii) Forms of punishment

The Law should provide more forms of punishment than is available at present, in order to allow the Courts to exercise their discretion in sentencing more appropriately for the offence and offenders. An example is weekend imprisonment, victim compensation, residential detention or boot camps.

If the sentencing process can be developed in accordance with these research findings, the Courts' exercise of discretion will be more efficiently performed. This may result in a reduction of crime. Fewer cases of inappropriate sentencing would be appealed to the appellate Courts. It is therefore hold that more limitations are imposed on the ability to appeal sentencing problems to the Court of Appeal and the Supreme Court. Sentencing by the Courts of First Instance would be more satisfactory, reducing the causes which result in cases reaching the Court of Appeal and the Supreme Court. If the law is not altered, the parties will continue to rely on their rights to appeal, even in cases without reasonable grounds.


* Chief Court of the Judiciary Office, Provincial Court, Department of Juvenile and Family,
Nontaburi 11000 THAILAND
The author wishes to acknowledge the assistance of Dr. Terrence Herd, from Chulalongkorn University, to the review of this article.