Although a significant number of offence types set out in the Penal Code do not provide for the possibility of imposing a non-custodial penalty, Article 37a of the Penal Code enables courts to do so across a very wide range of cases.
Sentencing Exposure
The offence types defined in the Special Part of the Penal Code (and in its Military Part) include information on sentencing exposure in the form of so-called ‘brackets’ — from the lowest possible penalty to the maximum. Many of these offences do not contemplate the imposition of non-custodial penalties, that is, a fine or a restriction of liberty; the lowest penalty theoretically available is imprisonment. The legislature has nevertheless taken the view that granting courts broader discretion in shaping the sentence is desirable.
The Purpose of Article 37a of the Penal Code
Article 37a was introduced into the Penal Code as a mechanism for addressing this issue. Under that provision, where the upper limit of the sentencing exposure does not exceed 8 years and the court would in any event not intend to impose a custodial sentence exceeding one year, it may instead impose a restriction of liberty (community service) of not less than 4 months, or a fine of not less than 150 daily rates.
Effects
As a result, in the case of several dozen offence types — brackets of 3 months to 5 years or 6 months to 8 years being very common — it is possible to impose a fine or a restriction of liberty even where this does not follow directly from the Special Part of the Penal Code.