The Public Prosecutor
The recommended penalty for the killing of a spouse or a common-law partner was determined to be 12 years’ imprisonment corresponding to the recommended penalty in other homicide cases
The City Court and the High Court had found the defendant (T) guilty of killing his common-law partner (A) and of arson. The homicide was committed in November 2007, when the defendant – after having shot his common-law partner in the head causing her to sustain a fatal brain injury – also set fire to the property where his partner was still lying, after which time she died of asphyxiation.
The Supreme Court – where nine judges were presiding – ruled unanimously that 12 years’ imprisonment should be the recommended penalty in homicide cases where the victim is a spouse or a common-law partner. The Supreme Court, thus, upheld the High Court’s sentence of 12 years’ imprisonment. A minority (four judges) wanted to increase the sentence to 13 years’ imprisonment due to aggravating circumstances. The Supreme Court’s ratio decidendi was:
“Pursuant to the Danish Penal Code of 1930, according to which homicide is punished by imprisonment for five years to life, homicide without extenuating circumstances generally carried a sentence of imprisonment for life or for 16 years. From the 1950s, the number of life sentences and sentences of imprisonment for more than 12 years decreased considerably. At the beginning of the 1990s, 10-12 years’ imprisonment was the norm. Following this development, the Supreme Court declared in 1993 that in homicide cases where the victim is a spouse or a common-law partner, the recommended penalty is 10 years’ imprisonment. The situation for other homicides did not develop similarly, as the recommended penalty today is 12 years’ imprisonment.
That the victim of a homicide is a spouse or a common-law partner does not automatically imply that there are extenuating circumstances. As stated in the Supreme Court’s judgment of 20 November 2008 (UfR 2009, p. 433), the reason for the lower recommended penalty for homicide in marital and non-material relationships is that such homicides are normally committed under emotional stress. The use of the recommended penalty is, thus, not justified when such emotional stress has not entered into it. However, this penalty has also been imposed in cases where there was no evidence of whether the homicide was committed under emotional stress.
Today, the fact that a relationship is brought to an end against the wishes of one of the parties is perceived as a natural part of life. The perception of homicide in marital and non-marital relationships has evolved accordingly.
Against this background, and considering the increased sentences for violence also in relationships in recent years as well as the correlation between the sentences for serious violence and for homicide, the Supreme Court finds that a sentence of 12 years’ imprisonment should also be the norm in homicide cases where the victim is a spouse or a common-law partner. Consequently, whether this recommended penalty should be decreased due to emotional stress must be based on a specific assessment pursuant to Ss. 80-82 of the Danish Penal Code.
It is noted that the Supreme Court is responsible for ensuring that the level of sentencing is adapted to the social conditions by making sentencing recommendations in accordance with the minimum and maximum penalty laid down by law, and that the stated change of the recommended penalty does not give rise to any doubts as to the due process of law as regards the principles in S. 3 of the Penal Code or Article 7 of the European Human Rights Convention.
When fixing the sentence for homicide in marital and non-marital relationships, the extenuating or aggravating circumstances must – as in other cases of homicide – be quite material for the sentence to be decreased or increased by two years to 10 years or 14 years, respectively. For this reason, it should also be possible to reduce or increase the sentence to 11 or 13 years respectively, based on a concrete assessment, in the event that material extenuating or aggravating circumstances justify such alternative sentences.
In the present case, T was found guilty of killing A in November 2007. He had known A for four years and they had lived together since 2006. There is no basis for assuming that the homicide was committed under emotional stress justifying a decrease of the sentence relative to the recommended penalty of 12 years' imprisonment. In addition, no other circumstances justifying a decreased sentence were presented.
Five judges – Poul Sørensen, Peter Blok, Asbjørn Jensen, Niels Grubbe and Jens Peter Christensen – thus declare:
On the grounds stated by the majority of the Supreme Court, we do not find that there is sufficient basis for increasing the sentence to 13 years' imprisonment. We, thus, vote in favour of upholding the High Court’s ruling.
Four judges – Børge Dahl, Poul Søgaard, Jon Stokholm and Henrik Waaben – state:
Based on the High Court’s assessment of evidence, regard must be had to the fact that T shot A at close range causing her to sustain a fatal brain injury and then, after a few hours, while she was still alive, killed her by setting fire to the property. We find that T thereby acted with such intent and such cynicism, and considering the conviction for arson on the second count, that the sentence must be increased by one year to 13 years’ imprisonment. We, thus, vote in favour of upholding the High Court’s ruling with this change.
The judgment is passed in accordance with the majority of votes, and the Supreme Court, thus, upholds the ruling of the High Court."