Impact on sentencing

Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)

428. If […] a decision is reached to cumulatively convict for the same conduct, a Trial Chamber must consider the impact that this will have on sentencing.  In the past, before both this Tribunal and the ICTR, convictions for multiple offences have resulted in the imposition of distinct terms of imprisonment, ordered to run concurrently.[1]

429. It is within a Trial Chamber’s discretion to impose sentences which are either global, concurrent or consecutive, or a mixture of concurrent and consecutive.[2]  In terms of the final sentence imposed, however, the governing criteria is that it should reflect the totality of the culpable conduct (the 'totality’ principle),[3] or generally, that it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate.

430. Therefore, the overarching goal in sentencing must be to ensure that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender.  This can be achieved through either the imposition of one sentence in respect of all offences, or several sentences ordered to run concurrently, consecutively or both.  The decision as to how this should be achieved lies within the discretion of the Trial Chamber.

[1]    Such sentences have been confirmed by the Appeals Chamber in the Tadić Sentencing Appeal Judgement and the Furund‘ija Appeal Judgement.

[2]    See also Rule 101(C) of the Rules: “The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.”

[3]    “The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate.’ (footnote omitted) D.A. Thomas, Principles of Sentencing (Heinemann: London, 1980), p 56;  See also R v Bocskei (1970) 54 Cr. App. R. 519, at 521: “[…] when consecutive sentences are imposed the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive.” Section 28(2)(b) Criminal Justice Act 1991 preserves this principle. It applies in all cases where consecutive sentences are imposed, e.g., R v Reeves, 2 Cr. App. R (S) 35, CA; R v Jones, [1996] 1 Ar. App.R (S) 153;  In Canada see e.g., R v M (CA), [1996] 1 SCR 500: “the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence”;  In Australia: Postiglione v R, 145 A.L.R. 408; Mill v R (1988) 166 CLR 59 at 63; R v Michael Arthur Watts, [2000] NSWCCA 167 (the court should look at the individual offences, determine the sentences for each of them and look at the total sentence and structure a sentence reflecting that totality); R v Mathews, Supreme Court of New South Wales, 16 July 1991. 

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