Previously deprived of the right to drive a vehicle, he again drove a vehicle while intoxicated.
By the verdict of the Petropavlovsk City Court of the North Kazakhstan region dated November 27, 2018: S., who had no previous criminal record, was sentenced under part 1 of Article 346 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code) to 180 hours of community service with deprivation of the right to drive vehicles for a period of 3 years. By the verdict of the Court of S. He was found guilty of being a person who had previously been deprived of the right to drive a vehicle, and on August 28, 2018, he again drove a vehicle while intoxicated. The criminal case was not considered on appeal. The Prosecutor General's protest was submitted to change the verdict due to the incorrect application of the norms of the General Part of the Criminal Code. The court's conclusions on the guilt of S. the commission of the imputed act is based on the totality of the evidence collected, his actions are qualified correctly, the main punishment is imposed within the sanction of the article for which he was found guilty, and the protest is not disputed. At the same time, when imposing additional punishment, which, in accordance with part 9 of Article 494, paragraph 4) of Article 433 of the Criminal Procedure Code of the Republic of Kazakhstan, is the basis for changing the sentence in cassation, the court did not sufficiently take into account the norms of the General Part of the Criminal Code. It has been reliably established that Sh. Earlier, by a court verdict of September 22, 2016, he was found guilty under part 1 of Article 346 of the Criminal Code to 150 hours of community service, with deprivation of the right to drive a vehicle for a period of 3 years. Having not fully served the additional punishment imposed in the form of deprivation of the right to drive vehicles, S. was intoxicated again on August 28, 2018, and committed a criminal offense under part 1 of Article 346 of the Criminal Code. In accordance with part 5 of Article 60 of the Criminal Code, the addition of additional types of punishments when sentencing based on a set of sentences is carried out according to the rules for sentencing based on a set of criminal offenses.
Previously deprived of the right to drive a vehicle, he again drove a vehicle while intoxicated.
According to parts 2.5 of Article 58 of the Criminal Code, if the totality of criminal offenses includes only criminal offenses, then the final punishment is imposed by absorbing a less severe punishment with a more severe one, or by partially or completely adding punishments. Additional punishments may be added to the main punishment imposed for the totality of criminal offenses, which form their totality. The final additional punishment in case of partial or complete addition may not exceed the maximum term or amount established for this type of punishment by the General Part of the Criminal Code. In accordance with the clarifications of paragraph 17 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 25, 2015 No. 4 "On certain issues of the imposition of criminal punishment", the additional punishment not served under the previous sentence is fully or partially attached to the final basic punishment or fully or partially combined with the additional punishment of the same type imposed under the new sentence. Unbroken Gold. According to the previous sentence, the additional penalty is 2 years and 19 days. The court did not discuss the application of the above-mentioned norms of current legislation in relation to S., did not take into account the purpose of the punishment and did not take into account the content of the disposition of the article according to which S. was found guilty, providing for the existence of legal consequences of additional punishment for committing a previous offense. Guided by Article 39 of the Criminal Code on the application of punishment in order to restore social justice, correct and prevent the commission of new criminal offenses, the judicial board of the Supreme Court agreed with the arguments of the protest about the need, on the basis of part 5 of Article 60, parts 2, 5 of Article 58 of the Criminal Code, for an additional type of punishment in the form of deprivation of the right to drive vehicles, imposed by the sentence of November 27, 2018, partially add the unserved term of a similar additional type of punishment under the sentence of September 22, 2016. Based on the above, the Judicial Board for Criminal Cases of the Supreme Court changed the verdict of the court of first instance: - on the basis of part 5 of Article 60, parts 2, 5 of Article 58 of the Criminal Code, to partially attach the additional sentence of deprivation of the right to drive vehicles for a period of 3 (three) years, unserved by the verdict of September 22, 2016 a penalty in the form of deprivation of the right to drive vehicles and finally impose an additional penalty in the form of deprivation of the right to drive vehicles for a period of 3 years and 6 months. The rest of the verdict was left unchanged. The protest of the Prosecutor General of the Republic of Kazakhstan is satisfied.
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