Brazilian sentencing: the three-phase method, step by step

Why the sentence has three phases

The Constitution requires individualized sentencing (art. 5, XLVI). To keep that from turning into whim, art. 68 of the Penal Code sets the method: the base penalty is fixed under art. 59; then the mitigating and aggravating circumstances are weighed; last come the reductions and the increases. The order is mandatory and each phase starts from the number the previous one produced. That is why sentencing is auditable: anyone can redo the math and point to exactly where the judge went wrong.

1. 1st phase, base penalty (art. 59)Within the statutory minimum and maximum, the judge weighs the eight judicial circumstances and fixes a starting point. With no unfavorable circumstance, the base penalty stays at the legal minimum.
2. 2nd phase, mitigating and aggravating factors (arts. 61 to 67)The base penalty is then adjusted by aggravating factors (arts. 61 and 62) and mitigating factors (arts. 65 and 66). None of them can push the penalty below the minimum or above the maximum of the offence (STJ Precedent 231).
3. 3rd phase, reductions and increasesFinally come the fraction-based causes (attempt, privileges, statutory increases). Only these can break through the minimum or the maximum, and the result is the final penalty.

First phase: the base penalty and the 1/8 fraction

The base penalty starts somewhere between the statutory minimum and maximum for the offence. Art. 59 lists eight judicial circumstances the judge must weigh, "as necessary and sufficient for the reproach and prevention of the crime". Each is a vector: when unfavorable, it pushes the penalty above the floor; when favorable or neutral, it carries no weight. What the statute never states is how much each vector is worth.

Culpability

The degree of blameworthiness of the conduct, beyond the intent or negligence the offence already requires.

Prior record

Prior final convictions that do not count as recidivism. Open investigations and pending cases do not count (STJ Precedent 444).

Social conduct

The defendant's role in family, work and community, apart from the crime itself.

Personality of the agent

The moral and psychological profile, assessed cautiously and from concrete evidence in the record.

Motives

The reasons behind the crime, when not already weighed as an aggravating, mitigating or defining element.

Circumstances of the crime

The manner of execution, the time, the place and the relationship between agent and victim.

Consequences of the crime

The extent of the harm caused, beyond what is inherent to the offence itself.

Behavior of the victim

Whether the victim somehow provoked or facilitated the crime, which may lessen the reproach.

Because art. 59 fixes no weight per vector, the STJ built a yardstick: split the interval between the minimum and the maximum of the offence by eight, the number of judicial circumstances, and use that 1/8 of the interval for each unfavorable circumstance. It is a proportionality guide, not a statutory rule: the STJ itself holds that the defendant has no subjective right to any particular fraction, and some courts prefer 1/6 of the statutory minimum or no arithmetic at all, provided the reasoning is concrete.

Take simple theft, whose penalty today is 1 to 6 years (Law 15,397/2026 raised the ceiling from 4 to 6 years). The interval is 5 years, or 60 months; 1/8 of that is 7.5 months per unfavorable circumstance. If the judge found two negative vectors, say, heightened culpability and severe consequences, the base penalty would rise to 1 year plus 15 months, that is, 2 years and 3 months. In the worked case below, however, every circumstance is favorable, so the base penalty stays at the minimum.

Second phase: aggravating, mitigating factors and the floor

The second phase starts from the base penalty and applies the statutory circumstances. The aggravating factors of art. 61 "always aggravate the penalty, when they do not constitute or qualify the crime": recidivism, base or vile motive, a crime against an ascendant or spouse, against a person over 60, among others. Art. 62 covers aggravation among co-offenders. On the other side, art. 65 lists the mitigating factors that "always mitigate": being under 21 on the date of the act or over 70 on the date of sentencing, having repaired the damage, having acted under strong emotion provoked by the victim, and, the most common, a voluntary confession. Art. 66 also admits an unnamed mitigating factor for any relevant circumstance not expressly set out in law.

When aggravating and mitigating factors coexist, art. 67 tells the penalty to move toward the "limit indicated by the preponderant circumstances", those arising from the determining motives, the personality of the agent and recidivism. In practice, the STJ has settled that a voluntary confession and recidivism are equally preponderant and, as a rule, cancel each other out, leaving the intermediate penalty at the same level as the base penalty. And there is a hard ceiling: however many mitigating factors there are, they never pierce the legal minimum. That is STJ Precedent 231, upheld by the 3rd Panel in 2024.

Third phase: the causes that break the limits

The third phase applies the reductions and the increases, always as fractions (one third, one half, two thirds) and scattered across the general and special parts of the code. They are the only point in the calculation where the penalty may fall below the minimum or rise above the maximum of the offence, because the legislator itself chose those fractions as the answer to situations that change the gravity of the fact. This is where attempt (art. 14, II, sole paragraph: "reduced by one to two thirds"), privileged theft (art. 155, § 2: reduction of one to two thirds) and increases such as nighttime rest (art. 155, § 1) come in.

• Attempt, art. 14, II, sole paragraph: the completed-crime penalty reduced by 1/3 to 2/3, according to how far the offender got.
• Privileged theft, art. 155, § 2: a first offender and a low-value item allow a reduction of 1/3 to 2/3, a switch to lighter detention, or a fine alone.
• Nighttime rest, art. 155, § 1: increase of one half (raised from 1/3 to 1/2 by Law 15,397/2026).
• Continued crime, art. 71: increase of 1/6 to 2/3, but mind the warning below.

A second example shows why only the third phase pierces the floor. Suppose the theft had stopped at the attempt stage, with the 1-year penalty from the second phase. In the third phase, the attempt reduction of 2/3 brings the penalty to 4 months, far below the offence’s 1-year minimum, and still valid, because the statute set out the fraction. A second-phase mitigating factor could never get there.

A full case: from art. 59 to the regime and the substitution

João, a first offender with a clean record, took an object from a home in the small hours and confessed at the police station. This is simple theft (art. 155, caput), with the nighttime-rest increase (§ 1). Let us compute the penalty with the eight circumstances of art. 59 all favorable. Statutory penalty: 1 to 6 years and a fine.

João’s final penalty is 1 year and 6 months. Now the calculation decides the initial regime. Art. 33, § 2, tiers the regime by the length of the penalty and by recidivism, and § 3 also requires attention to art. 59. Since the penalty is under 4 years, João is a first offender and the judicial circumstances favor him, the regime is open. STJ Precedent 440 and STF Precedent 719 bar the judge from imposing a harsher regime based only on the abstract gravity of theft: "With the base penalty set at the legal minimum, a harsher prison regime may not be established... based solely on the abstract gravity of the offence" (Precedent 440).

One last question remains: can prison be swapped for alternative penalties? Art. 44 requires a penalty of no more than 4 years and a crime with no violence or serious threat (item I), a defendant who is not a recidivist in an intentional crime (item II) and favorable circumstances (item III), all present. Since the penalty exceeded 1 year, § 2 orders substitution by one restrictive penalty plus a fine, or by two restrictive penalties. In practice João will likely serve no prison time: he might perform community service and a monetary payment instead. To see how such a penalty then evolves, progression, parole, remission, the calculation continues in the criminal enforcement tool.

Sensitive points and errors that void the sentence

Most sentencing reversals do not quarrel with the final number, but with the path: the same fact counted twice, a circumstance in the wrong phase, a fraction with no reasoning. It is worth knowing the three frictions that show up most in the courts.

Keep in mind that criminal-procedure deadlines follow their own logic; the business-day counting of civil procedure, covered in the procedural deadlines under the CPC guide, does not apply to criminal cases. For other calculations with exact legal weight, see also the guides on attorney fees and the OAB fee table and on labor severance amounts.