The convicted person must be given a fair punishment sufficient to correct him and prevent new criminal offenses.
By the verdict of the court No. 2 of Aktobe, Aktobe region, dated August 29, 2017: T., who had no previous criminal record, was sentenced under paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code to 3 years in prison, with confiscation of personally owned property, and serving his sentence in a medium-security penal correctional institution; P., previously without criminal record, he was sentenced under paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code to 3 years in prison, with confiscation of personally owned property, and with serving his sentence in a medium-security penal correctional institution. Collected from T. and P. the procedural costs are 8,151 tenge each. The fate of the physical evidence is resolved. By the decision of the judicial Board for Criminal Cases of the Aktobe Regional Court of October 5, 2017, the verdict of the court against T. and P. remained unchanged. Having studied the materials of the criminal case, the arguments of the petition, and having heard the defense attorney, lawyer Zh., who changed his requirements regarding the exclusion of the qualifying feature, and supported the petition in the rest, the conclusion of Prosecutor N., who supported the petition, the board considers that the judicial acts against convicted T. and P. subject to change on the following grounds.
The convicted person must be given a fair punishment sufficient to correct him and prevent new criminal offenses.
In accordance with paragraph 14 of the International Covenant on Civil and Political Rights, ratified by the Republic of Kazakhstan, everyone convicted of a crime has the right to be reviewed by a higher court in accordance with the law. By the verdict of the court, T. and P. were found guilty of committing robbery – open theft of other people's property, using violence that is not dangerous to the life or health of the victim, R., by a group of persons by prior agreement. The court's conclusions on the evidence of the guilt of convicted T. and P. in the case of the alleged act, the circumstances set out in the verdict are based on evidence comprehensively, fully and objectively examined at the court session, and correspond to the actual circumstances of the case. The evidence confirming the guilt of the convicted persons is reliable, permissible, and collectively necessary and sufficient for the proper resolution of the criminal case by the Court, the actions of the convicted persons under paragraphs 1), 3) of part 2 of Article 191 of the Criminal Code are correctly qualified. In accordance with paragraph 5) of part 1 of Article 485 of the CPC, the basis for the review of judicial acts that have entered into force in cassation is the incorrect imposition of punishment or the discrepancy between the severity of the criminal offense and the personality of the convicted person. The Board believes that there is such a basis in this criminal case. In accordance with Part 2 of Article 39 of the Criminal Code and paragraph 1, 3 of the regulatory decree of the Supreme Court No. 4 "On certain issues of criminal punishment", punishment is applied in order to restore social justice, correct a convicted person and prevent the commission of new crimes by both convicted persons and others, and when appointing it, courts should strictly comply with the requirements of the article. 52 of the Criminal Code, taking into account the nature and degree of public danger of the criminal offense, the identity of the perpetrator, circumstances mitigating and aggravating responsibility and punishment, the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family or dependents. As follows from the verdict, the convicted T., P. have no previous convictions, are young, have fully admitted their guilt in committing the crime and sincerely repented of their actions, the harm caused by the crime has been fully repaired. T. has five young children, P.'s spouse is registered due to pregnancy. During the appeal hearing of the case, the victim R. She explained that the material damage caused has been fully compensated, has no claims against the convicts, forgives and asks for a non-custodial sentence.
The victim sent a similar statement to the cassation instance. These circumstances were reasonably recognized by the court of first instance as mitigating responsibility and punishment. At the same time, no aggravating circumstances have been established in the case. However, by imposing a custodial sentence on the defendants, the courts of lower instances did not comply with these requirements of the law when determining the amount of punishment. Reflecting in the verdict the circumstances mitigating criminal liability and punishment, the absence of aggravating circumstances, the court mistakenly justified the non-application of an alternative type of punishment by lack of citizenship of the Republic of Kazakhstan and permanent residence. The Judicial Board, taking into account the totality of circumstances mitigating criminal liability and punishment, data on the identity of the convicts, considers it possible to apply Article 63 of the Criminal Code to the remaining unserved sentence of 2 years, 4 months, 17 days, with the establishment of probation control for the specified period and the imposition of duties on the convicts provided for in part 2 of Article 44 of the Criminal Code. The additional penalty in the form of confiscation of property is subject to cancellation as not applicable in the case of a suspended sentence. As a result of the above, the judicial Board for criminal Cases of the Supreme Court changed the judicial acts of local courts in relation to T. and P. On the basis of Article 63 of the Criminal Code, the remaining sentence of 2 years, 4 months, 17 days was suspended for each convicted person. Probation control has been established for both convicts for the entire specified period. The duties are assigned to T., P. not to change their place of residence at the address: Aktobe, ul. Paris Commune, 17, works without notifying the authorized state body responsible for monitoring the behavior of convicts, not to visit entertainment establishments: cafes, bars, restaurants at night. The additional penalty of confiscation of property was lifted. T., P. were released from custody immediately. The rest of the judicial acts remained unchanged. The petition of lawyer J. in the interests of the convicted T., P. satisfied.
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