Recognition of recidivism of crimes due to the fact that the convicted person did not recognize the recidivism of crimes in his actions, and also incorrectly determined the institution of serving the sentence, the court sentence was changed

By the verdict of the Korgalzhyn District Court of Akmola region dated April 2, 2018: T. earlier, on June 8, 2016, on the basis of Article 293, Part 3 of Article 380, Part 1 of Article 63 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code), conditionally sentenced to 3 years of imprisonment, – paragraphs 1), 3) of Part 2 of Article 191 of the Criminal Code, 3 years of imprisonment. In accordance with Part 5 of Article 64 of the criminal code, the sentence of June 8, 2016 has been canceled. In accordance with Article 60 of the Criminal Code, he is sentenced to imprisonment for 4 years, serving his sentence in a medium-safe institution of the Penal correction system. By the verdict of the court, T. was found guilty of open embezzlement of other people's property, conspiring with a group of people, using force that is not dangerous to the life and health of the victim, or threatening the use of such force. By the decision of the Judicial Board of the Akmola Regional Court on criminal cases dated May 30, 2018, the verdict was left unchanged. In his protest, the prosecutor general did not dispute the proof of guilt and the qualification of the criminal act of the convicted T., pointing out that the court did not take into account the previous conviction of the convicted person, the repetition of the crime was not recognized in his actions, in this regard, the type of institution of the penitentiary system was incorrectly established, changed the judicial acts, recognized the repetition of the crime in the actions of the convicted person and asked him to appoint a maximum security institution of the penitentiary system to serve the sentence. The circumstances specified in the sentence in relation to the convicted T. are confirmed by evidence that has been thoroughly studied and objectively evaluated in the main trial.

Recognition of recidivism of crimes due to the fact that the convicted person did not recognize the recidivism of crimes in his actions, and also incorrectly determined the institution of serving the sentence, the court sentence was changed

The guilt of the convicted T. is fully proven by his answers, in which he partially admitted his guilt, the answers given by the victims at the main trial of M., A., and the materials of the criminal case. In the answers given by the victims M. and A. in the main trial, it was indicated that on the night of the incident, the convicted T. and an unknown person stopped themselves, beat them and seized their mobile phones.  According to the conclusion of the forensic medical examination, damage to the health of A. was caused to a mild degree. The court correctly differentiated the criminal activity of T. by paragraphs 1), 3) of Part 2 of Article 191 of the criminal code. As determined by the materials of the case, T. was previously sentenced to 3 years in prison for committing a serious crime by the verdict of June 8, 2016.  In accordance with Part 1 of Article 14 of the criminal code, recidivism of crimes is recognized as the commission of a serious crime by this person if he was previously sentenced to imprisonment for committing a serious crime. In accordance with paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "on some issues of imposing criminal penalties" , when a person commits a new crime during the period of probation control or during the period of postponement of the execution of the sentence, or in recognition of recidivism in the event of cancellation of the conditional conviction or postponement of the execution of the sentence, in the event that this person is sent to the relevant institution to serve the sentence of imprisonment appointed by the court sentence, the person is not a previous criminal record that has not been canceled must be taken into account.

In addition, in accordance with paragraph 3) of Part 5 of Article 46 of the Criminal Code, men convicted in the case of recidivism of crimes are assigned to serve in institutions of the maximum security of the Penal correction system. The court of first instance in the actions of T. did not recognize the recidivism of crimes on the basis of Part 1 of Article 14 of the criminal code, and also incorrectly determined the serving of the sentence in a moderately safe institution of the Penal correction system. In this regard, in the actions of the convicted T. on the basis of Part 1 of Article 14 of the criminal code, it is necessary to recognize the recidivism of crimes and appoint serving the sentence in the highest security institution of the Penal correction system. The judicial board on criminal cases of the Supreme Court of the Republic of Kazakhstan amended the judicial acts of local courts in relation to convicted M., recognized the recidivism of crimes in the act of convicted T. In accordance with Part 1 of Article 14 of the criminal code, and on the basis of Paragraph 1) of Part 1 of Article 54 of the criminal code, recognized it as a circumstance aggravating the criminal liability and punishment of the convicted. In accordance with paragraph 3) of Part 5 of Article 46 of the criminal code, the sentence of T. was assigned to serve in the highest security institution of the Penal correction system, and the rest of the judicial acts were left unchanged. The prosecutor general's protest was satisfied. 

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