Kuwait Court of Cassation principle number 170

Summary: - Aggravation of punishment for a recidivist accused. Conditions for its application. Article 85 of the Penal Code. Discretionary for the trial court according to what is appropriate to the circumstances of each accused. - The reason for aggravation in recidivism. It relates to the offender’s person, not the act committed. Example. Rule: Under Article 85 of the Penal Code, the legislature regulated recidivism in committing offences, the fulfilment of whose conditions of application results in aggravation of the punishment prescribed by law for the felony or misdemeanour against the recidivist accused. The aforementioned Article provides: "A person previously sentenced to a felony punishment who is proved subsequently to have committed a felony or misdemeanour shall be deemed a recidivist. The court may sentence the recidivist to more than the maximum prescribed by law for the offence, provided that twice that maximum is not exceeded." The effect of this provision is that aggravation of punishment pursuant to it is discretionary for the trial court and subject to its choice, since the law does not oblige it to increase the punishment of the recidivist accused under it, but leaves this to its assessment according to the circumstances and particulars of each case. It may, if it wishes, impose the aggravated punishment provided therein, or, if it wishes, impose the punishment prescribed for the offence in ordinary circumstances where aggravating recidivism is absent. This was intended to enable the judge to impose the punishment he considers appropriate to the circumstances of each accused, particularly since the reason for aggravation relates to the offender’s person, not the act committed. Accordingly, if the trial court considers it sufficient in its judgment to impose the punishment originally prescribed for the offence proved to have been committed by the accused, stripped of the aggravating circumstance of recidivism, and applies to him Articles 83 of the Penal Code and 48 of Law No. 74 of 1983 concerning the Combating of Narcotics and the Regulation of Their Use and Trade, reducing the punishment to the minimum permitted by those two Articles, namely fixed-term imprisonment for fifteen years for the most serious of the offences which the judgment established against the respondent and of which it convicted him—the offence of cultivating the cannabis plant with intent to trade, provided for in Article 31/c of the latter aforementioned Law—as is the case in the present proceedings, the appellant’s complaint is unsound.