When imposing a penalty, circumstances mitigating and aggravating liability and punishment
By the verdict of the Almaly District Court of Almaty dated July 26, 2017, A. was previously convicted, sentenced to imprisonment for 3 years and 6 months with confiscation of property by paragraphs 1), 2), 3) of Part 2 of Article 191 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code). He is assigned to serve his sentence in a medium-safe institution of the Penal correction system. From the convicted A., the victims were charged 1,180,000 tenge in favor of M., 60,000 tenge in favor of E., 12,400 tenge in favor of the state. By the court verdict A. he was repeatedly found guilty of open embezzlement of other people's property by conspiring with a group of people, using force that is not dangerous to the life and health of the victim. By the resolution of the judicial board for criminal cases of the Almaty City Court of September 5, 2017, the part of the sentence related to the civil claim was changed: 1,180,000 tenge in favor of the victim M. from the convicted A., 60,000 tenge in favor of the victim and 12,400 tenge in favor of the state was reduced in connection with the recovery of damage caused. The rest of the sentence is left unchanged.
When imposing a penalty, circumstances mitigating and aggravating liability and punishment
The guilt of the convicted A. is summarized in the case and is comprehensively, fully, objectively assessed at the court session, confirmed by the studied evidence and not disputed in the petition. In accordance with the norms of Article 52 of the Criminal Code and the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "on some issues of the imposition of criminal punishment", the courts determine the nature and degree of danger to society of the criminal offense when imposing a penalty, the identity of the guilty person, including his behavior before and after the commission of the offense, mitigating and aggravating circumstances of liability and punishment, it is also necessary to take into account the impact of the imposed punishment on the correction of the convicted person and the living conditions of his family or his dependents. According to the data characterizing the convicted A., He was brought to criminal responsibility for the first time, was young and confessed to the crime and sincerely regretted his actions, as well as the damage caused by the criminal offense has now been fully compensated. In the materials of the criminal case, victims M. I registered the appeals of E. that the damage caused by the criminal act of convicted A. was fully recovered and there was no civil claim against the convicted. At the same time, the victims asked convicted A. to impose a punishment not related to deprivation of Liberty. In addition, circumstances aggravating the criminal liability and punishment of A. convicted in the case have not been established. Taking into account the totality of mitigating circumstances, the Cassation judicial board concluded that it is necessary to impose a punishment on convicted A. by applying Article 63 of the criminal code. In accordance with Part 4 of Article 63 of the criminal code, confiscation of property is not prescribed in the case of a conditional conviction. In this regard, an additional punishment in the form of confiscation of property assigned to the convicted person is subject to exclusion from the sentence. According to the verdict of the court, A. was arrested on July 26, 2016. Until February 27, 2018, he served 7 months and 1 day of 3 years and 6 months of imprisonment imposed by a court verdict. To date, the unserved part of the sentence is 2 years 10 months 29 days, that is, the convicted person must be established probation control for this period. 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 A., applying Article 63 of the Criminal Code to convicted A., Considering that the punishment imposed by paragraphs 1), 2), 3) of Part 2 of Article 191 of the criminal code is conditional, and established probation control for 2 years 10 months 29 days. An additional punishment imposed by a court verdict - confiscation of property-is excluded.
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