It is completely up to a Court to decide upon a punishment when a suspect is found guilty of a crime. The Courts are only bound by the maximum penalties as stated in the law. In fraud cases it hardly ever happens that the maximum sentence is ordered. It is quite an arbitrary process in which (the) judge(s) ha(s)(ve) to weigh all the facts and circumstances of the case to come to a reasonable punishment. A difficult question to answer in this respect is: What will the suspect get in return for a confession?
The LOVS guidelines, which have been drawn up by the Courts of Appeal, provide guidance for the courts to determine which penalty should be imposed in a specific case. However, in the end every punishment is ultimately tailor-made. After all, the LOVS guidelines also state that aggravating and mitigating circumstances must be taken into account. But how these circumstances should be weighed and what effect these circumstances have on the punishment remains mystical. This applies in particular to the question on whether cooperation of the suspect in the investigation yields in terms of punishment. To this question, lawyers often are unable to give an answer. The Court of Appeal in The Hague recently made clear what the effect of cooperating on a punishment can be and – we believe it is fair to say – should be.
The case concerns a suspect who is convicted by the regional court for forgery of documents. He had submitted false declarations for an expensive drug for a period of two years, while in reality that drug had not been provided at all. However, the reimbursements for it had been collected by the suspect. The sentence he was given for this was a prison sentence of 18 months, 6 of which were conditional. The suspect appealed against this sentence. For most part, the Court upholds the statement of evidence, but in particular deals with the penalty.
The Court considers that according to the LOVS guidelines the sentence should be an unconditional prison sentence between 18 and 24 months. Nevertheless, the Court believes that in this case there is no reason to impose an unconditional prison sentence. The Court of Appeal explicitly states the circumstances that reduce the sentence:
1. Immediately after the case has come to light, the suspect fully cooperated with the investigation;
2. He has repaid the amounts wrongly received;
3. During the trial, the suspect has shown that he is aware that he has acted wrongly;
4. The consequences of the criminal case have had an enormous impact on the life and family of the suspect, partly due to media attention;
5. The suspect is a first offender.
In view of these circumstances, the Court of appeal comes to a conditional 12-month prison sentence and a 240-hour community service. Because the Court of appeal explicitly provides insight into what the mitigating circumstances are and what they result in, lawyers can now provide better advice to their clients on the (positive) effects of cooperating with the investigation.
We welcome the result of this judgement. After all, an unconditional prison sentence comes with a great amount of damage for the suspect and certainly also for relatives and loved ones. In such a situation we find this disproportional, as does the Court of appeal. A second chance can be deserved by cooperating. We therefore hope that other courts will take an example of this judgement.
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