Abstract

Disparity of sentencing in criminal case is hardly to be avoided. The problem of disparity emerges when there is not supported with enough and appropriate reasons as revealed by the author in court decisions Number 590/Pid.B/2007/PN.Smg and Number 1055/Pid.B/2007/PN.Smg in the criminal case of theft under aggravating circumstances. The author of this article concludes that: (1) both verdicts show that the judges did not pay enough attention to criminogenic factors existing in society as well as to the punishment objective as a means to behavior rehabilitation. On the other hand, judges all appeared to contribute to a mind-set characterized by a desire to follow legal positivism or legism. They preferred to impose special precaution theory and apply recidivist system. (2) In the perspectives of those judges and some academics, the disparity on the cases of theft under aggravating circumstances may not be eliminated, but at least, it is still possible to be minimized. The minimization can be done by considering the guidelines in terms of physical actions and subjective factors such as motivation and intention. Other considerations are the consequences of action, crime weighting, crime modus operandi, attitude, and the nature of crime. Hopefully, judges will never ponder formal consideration only.

Keywords : disparity of sentence, theft under aggravating circumstances, criminal justice system.