The Mitigating Circumstance of Minority or Seniority
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We shall tackle the mitigating circumstance of minority or seniority. Art. 13, Par. 2 of the Revised Penal Code provides that offenders under eighteen years of age or over seventy years are entitled to this mitigating circumstance that has the effect of reducing the severity of the penalty to be imposed upon them.

It is the age of the accused at the time of the commission of the crime which is material to the determination of the penalty. His age at the time of trial has no bearing.

The Law | Article 13 Paragraph 2, Revised Penal Code

Article 13. Mitigating circumstances. – The following are mitigating circumstances;

2. That the offender is under eighteen year of age or over seventy years. In the case of the minor, he shall be proceeded against in accordance with the provisions of Art. 80.1

Republic Act No. 9344,2 as amended by Republic Act No. 10360,3 has effectively modified Article 80 of the Revised Penal Code.

Mitigating circumstance of minority or seniority

In cases where the offender is below 18 years old, such offender if found to be criminally liable, is entitled to the reduction of the penalty imposed upon him by one degree.

If the accused’s minority is not exempting, he or she will always be entitled to a privilege mitigating. As such, paragraph 2 of Article 13 of the Revised Penal Code reduces the penalty imposed by one degree. This cannot be neutralized by an aggravating circumstance.

Given the offender is over 15 but below 18, and has acted with discernment, he is entitled to a privilege mitigating circumstance.

Old age

The concept of old age under criminal law differs than that under RA No. 7432, as amended by RA No. 99944 wherein elderly refers to any resident at least 60 years old. The old age of the accused gives him or her the benefit of an ordinary mitigating circumstance which may lower the penalty imposed by a period.

RA No. 7432, as amended by RA No. 9994, states what a senior citizen or elderly person is. It provides that a senior citizen is a resident of the Philippines who is at least sixty (60) years old. Because of this, a resident citizen can only legally be called a senior citizen after he or when she turns 60.

Under RA No. 7432, however, the idea of seniority is different from the concept of seniority in criminal law. Article 13 (2) of the Revised Penal Code says that a person’s age is a mitigating factor if he or she is over 70 years old.

Thus, under Article 13 paragraph 2 of the Revised Penal Code, an offender is not yet a senior citizen at the age of 70, and he does become so only after that age. Yet, it is important to note that seniority as a mitigating factor can only be taken into account if the accused was older than 70 when the punishable act was done, not when the decision is made. Thus:

“The Sandiganbayan thereby erred. The mitigating circumstance of old age under Article 13 (2) of the Revised Penal Code applied only when the offender was over 70 years at the time of the commission of the offense. The petitioner, being only 63 years old when he committed the offenses charged, was not entitled to such mitigating circumstance.”5

Relevant Jurisprudence

In People vs. Cesar,6 the following antecedents transpired:

The accused was a student. On the afternoon of March 9, 1966, he went out during the first period to buy a notebook and there he met his friend who offered him tuba. He drank two glasses and went back to his classes.7

After class, he stood by the flagpole where he stabbed with a knife the Acting Principal of the school. He fled after the incident. His victim died minutes after the infliction of the wound.8

In order to mitigate his liability, accused proved that he was born in the Municipality of Carmen, province of Bohol, on May 27, 1948 and therefore on the date of the commission of the crime, he was only 17 years, 9 months and 12 days old.(Ibid.))

He was convicted of direct assault upon a person in authority with homicide by the trial court.

The Supreme Court ruled that:

The accused raises as sole issue the correct penalty under the circumstances.  The Hight Court explained that the lower court erred in the imposition of the correct penalty because it applied first the imposable penalty to its maximum degree, i.e., reclusion temporal maximum, and then imposed the penalty immediately inferior to it, i.e., reclusion temporal medium.9

The proper method is to start from the penalty imposed by the Revised Penal Code, i.e., reclusion temporal; then apply the privileged mitigating circumstance of minority and determine the penalty immediately inferior in degree, i.e., prision mayor; and finally apply the same in its maximum degree but within the minimum range thereof because of the ordinary mitigating circumstance of plea of guilty.10

Prision mayor being the maximum of the indeterminate sentence, the minimum of the indeterminate penalty is within the range of the penalty next lower to it as prescribed by the Revised Penal Code, i.e., prision correccional.11

All told, and applying now the Indeterminate Sentence Law, accused-appellant should be sentenced to an indeterminate penalty of not less than six (6) years of prision correccional, to not more than ten (10) years and eight (8) months of prision mayor.12

In People vs. Baroy, et al.,13, the Court affirmed the conviction of both appellants for three counts of rape with the use of a deadly weapon.

The penalty imposed upon them by the trial court was, however, reduced from death to reclusion perpetua for each count of rape. Appellant Alfredo Baroy claims that he is entitled to the privileged mitigating circumstance of minority and, hence, to a penalty two degrees lower than reclusion perpetua.14

He prays that the Court consider and give weight to his Birth Certificate as the best evidence of his age. His Birth Certificate shows that he was born on January 19, 1984, while the crimes in question were committed on March 2, 1998.15

Due to the severity of the penalty imposed in this case, the court went the extra mile to ascertain the authenticity of the evidence submitted.16

Baroy’s Birth Certificate outweighs the other evidence submitted to prove his date of birth. “A birth certificate is the best evidence of a person’s date of birth.” Based on his Birth Certificate, it is clear that Baroy was only fourteen (14) years old when he committed the crime of rape.17

The Court resolved to rule in favor of the accused despite the earlier evidence submitted by appellant during the trial not conclusively proving his age.18

Article 68 of the Revised Penal Code provides that “when the offender is a minor x x x under fifteen years x x x a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed.” The penalty prescribed by law for the crime committed by Baroy is reclusion perpetua to death. The penalty two degrees lower is prision mayor. Additionally, Baroy is entitled to the benefits granted by the Indeterminate Sentence Law.19


Paragraph 2 of the Mitigating Circumstance is clear as to the imposition of penalty upon minors. Being a privilege mitigating, it entitles an individual to the reduction of penalty not only by a period but by a degree.

Seniority, on the other hand, emphasizes on whom could plead it. Criminally charged individuals over 70 of age at the time of the commission of the crime are the ones entitled to this mitigating circumstance. Upon appreciation, their imposed penalties will be reduced by period.

In imposing a penalty, the Revised Penal Code takes the accused’s age into account. It emphasizes that the age at the time of the commission of the offense, not the age during trial, should be proven to entitle such individual to this mitigating circumstance.

In the case of a minor, a plea of a mitigating circumstance under paragraph 2 entitles him or her to a mitigating privilege that reduces the penalty by degree. It is important to note that a privilege mitigating circumstance cannot be offset by general aggravating circumstance.

A plea of seniority, on the other hand, if the accused is over 70 at the time of the criminal act, only entitles the person to an ordinary mitigating circumstance that lowers the penalty by a period and can be offset to a generic aggravating circumstance.

  1. Article 13, Paragraph 2, Revised Penal Code[]
  2. RA 9344[]
  3. RA 10360[]
  4. RA 7432 and RA 9994[]
  5. People vs. Reyes, G.R. No. 177105-06, August 12, 2010[]
  6. G.R. No. L-26185, March 13, 1968[]
  7. Ibid.[]
  8. Ibid.[]
  9. Ibid.[]
  10. Ibid.[]
  11. Ibid.[]
  12. Ibid.[]
  13. G.R. Nos. 137520-22 August 15, 2003[]
  14. Ibid.[]
  15. Ibid.[]
  16. Ibid.[]
  17. Ibid.[]
  18. Ibid.[]
  19. Ibid.[]

RALB Law | RABR & Associates Law Firm

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