Imposition of punishment the court of first instance, when imposing a punishment on the defendant, incorrectly took into account the circumstances aggravating criminal liability and punishment
By the verdict of the Karatau District Court of Shymkent dated February 07, 2018: B. previously convicted, found guilty by Part 3 of Article 345 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), sentenced to 3 years imprisonment with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 3 years, with deprivation of the right to drive a vehicle for 3 years, with restriction of freedom for 2 years with deprivation of the right to drive a vehicle for 3 years, with deprivation of the right to drive a vehicle for 2 years, with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 3 years, with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 3 years, with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 4 years, with deprivation of the right to drive a vehicle for 4 years.on the basis of Article 63, conditionally convicted. For the term of sentence assigned to convicted B., probation control is established and appropriate duties are assigned. A decision was made regarding the civil claim and procedural costs. The case was not considered on appeal. By the court verdict B. On November 27, 2017, at 17:00, a motor vehicle was driving under the influence of alcohol along Stepnaya Street, Kainar Bulak dacha, Shymkent, in gross violation of paragraphs 2.4.2, 10.1, 9.2 and 2.1.8 of the "rules of road traffic" of the Republic of Kazakhstan, drove on the opposite side of the road, hit the victim A., who was driving on a pedestrian road, accidentally causing his death, and left the scene of a traffic accident found guilty.
The chairman of the Supreme Court of the Republic of Kazakhstan, in his submission, does not dispute the proof of guilt of B. For this criminal offense and the qualification of his actions, indicating that his commission of these criminal offenses in a state of alcohol intoxication is subject to exclusion due to unjustified recognition by the court as a circumstance aggravating liability and punishment, should not exceed half of the amount of the main punishment provided for in Part 3 of Article 345 of this code, in which he was found guilty on the basis of the requirements of Paragraph 1) of Part 2 of Article 55 of the Criminal Code, he asked for a cassation review of the sentence against him. The court conducted a comprehensive judicial investigation in compliance with the requirements of the law on the case, based on a set of convincing evidence collected by the pre-trial investigation body and studied directly at the court session, objectively evaluated, without any doubts in terms of consistency, correctly concluded that B. is guilty of committing the criminal acts described in the sentence. The guilt of B. in committing this criminal offense, along with his answers to the confession of his guilt in this crime, is fully determined by the answers of the victim A. and witnesses, the Protocols of factoring, inspection of the scene, inspection of the vehicle, forensic examination, expert conclusions and other evidence studied in the main trial. In accordance with the requirements established by Article 125 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Procedure Code), the court gave a reasonable assessment of each of the evidence in terms of their relevance, admissibility, reliability, and sufficiency for resolving a criminal case. In such a context of the case, a reasonable assessment from the point of view of the law is given of the criminal offense actions of B. His actions are correctly differentiated by Part 3 of Article 345 and Article 347 of the criminal code. The evidence of his guilt and differentiation of actions for these criminal offenses are not disputed in the submission. When imposing a sentence on B., The court was guided by the requirements of Article 52 of the criminal code, correctly taking into account the nature and degree of public danger of the criminal offense committed by him, the personality, responsibility and circumstances mitigating the punishment. However, the court did not justify by law his commission of these criminal offenses under the influence of alcohol, recognition of them as circumstances aggravating criminal liability and punishment in the case. In accordance with Part 1 of Article 340 of the CPC, the main trial is conducted only in relation to the defendant and only within the limits of his prosecution submitted to the court. In accordance with paragraph 4 of the normative resolution of the Supreme Court of June 25, 2015 No. 4" on some issues of imposing criminal penalties", the limits of judicial proceedings are limited to the charges formulated at the time of drawing up the indictment. Circumstances mitigating and aggravating liability and punishment are included in the content of the charge. If the presence of circumstances not specified in the indictment, aggravating liability, is established by the sentence, it aggravates the situation of the defendant in accordance with the requirements of Article 340 of the criminal code and is a violation of the limits of the trial. As established by the case, the indictment does not include in the content of the accusation the commission of criminal offenses by B. in a state of alcoholic intoxication, as a circumstance aggravating his responsibility and punishment. Therefore, this circumstance is subject to exclusion from the sentence. In accordance with paragraph 1) of Part 2 of Article 55 of the criminal code, in the presence of mitigating circumstances that are not provided for as a sign of a committed crime and in the absence of aggravating circumstances, the term or amount of the main type of punishment may not exceed half of the maximum term or amount provided for in the relevant article of the special part of this code, when committing a crime of minor or moderate severity. In this regard, in connection with the absence of criminal liability and aggravating circumstances in the actions of convicted B. on the basis of the requirements of Paragraph 1) of Part 2 of Article 55 of the criminal code, the amount of the sentence of imprisonment imposed by Part 3 of Article 345 of the criminal code may not exceed 2 years and 6 months, and the amount of the sentence of restriction of freedom under Article 347 may not exceed 1 year. In accordance with paragraph 5) of Part 1 of Article 485 of the CPC, the basis for the Cassation review of judicial acts that have entered into legal force is violations committed during the investigation or judicial review of the case, including improper imposition of punishment.
The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan changed the verdict of the court of first instance in relation to the convicted B., excluding from the verdict the commission of criminal offenses recognized as aggravating the criminal liability and punishment of B. in a state of alcohol intoxication. Using paragraph 1) of Part 2 of Article 55 of the criminal code, the size of the prison sentence imposed by Part 3 of Article 345 of the criminal code for B. is reduced to 2 years and 6 months, the size of the prison sentence imposed under Article 347 of the criminal code is reduced to 1 year. On the basis of Part 2 of Article 58 of the criminal code, B. was sentenced to imprisonment for 2 years and 6 months with the deprivation of the right to drive a vehicle for 4 years by absorbing a less severe punishment into a more severe one, article 63 of the criminal code was applied, and the main punishment assigned to him was considered conditional. The probation control established by B. was left in force and the rest of the court's verdict was left unchanged. The proposal of the chairman of the Supreme Court of the Republic of Kazakhstan was satisfied.
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