Kuwait Court of Cassation principle number 55

Summary: - Refraining from pronouncing punishment. Not a sentence imposing a penalty. It is a determination that the perpetrator committed the offense charged against him, that his guilt was established, and that he would merit imprisonment if the court proceeded with the trial, but it considered it appropriate to stop the proceedings at that point because it found mitigating considerations. Art. 81, Penal Code. - Refraining from pronouncing punishment: its application requires the court to direct the accused to provide an undertaking, with or without security, committing himself to good conduct. If he breaches the undertaking's conditions, the court may, at the request of the prosecuting authority, the person supervising him, or the victim, proceed with the trial to impose the penalty prescribed for the offense he committed and of which his guilt is established. Example of a court ruling canceling a judgment deciding to refrain from pronouncing punishment and ruling anew to punish the appellant. This is not affected by the judgment having been issued while he was in a treatment facility for addiction pursuant to the judgment issued in the subsequent case. Rule: Article 81 of the Penal Code provides: "If a person is accused of an offense warranting imprisonment, the court may, if it finds in his character, past, age, the circumstances in which he committed his offense, or the triviality of that offense, grounds to believe that he will not return to criminality, decide to refrain from pronouncing punishment and direct the accused to provide an undertaking, with personal or real security or without security, committing himself to observing specified conditions and maintaining good conduct for the period it specifies, not exceeding two years. If the period specified by the court expires without the accused breaching the undertaking's conditions, the preceding trial proceedings shall be deemed never to have occurred. If, however, the accused breaches the undertaking's conditions, the court shall—at the request of the prosecuting authority, the person supervising him, or the victim—order that the trial proceed, sentence him to the penalty for the offense he committed, and confiscate the real security, if any." It follows from this provision that refraining from pronouncing punishment upon the accused is not a sentence imposing a penalty. Rather, it is in fact a determination by the court that the perpetrator committed the offense charged against him and that it has established his guilt, which would have required sentencing him to the imprisonment prescribed for that offense had the court proceeded with the trial. It nevertheless considered it appropriate to stop the proceedings at that point because it found the mitigating considerations mentioned in this article. Accordingly, as a condition for exercising the permission granted to the court in this regard, the article requires it to direct the accused to provide an undertaking, with or without security, committing himself to good conduct. If he breaches that undertaking's conditions, the court may, at the request of the prosecuting authority, the person supervising him, or the victim, proceed with the trial to impose the penalty prescribed for the offense he committed and of which his guilt was established. That being so, the appellant had previously been convicted in Case No. ... of 2010, Narcotics Felonies, and its Appeal No. ....... of 2010, J.M/7, of the two charges: first, possession of a narcotic substance, "hashish," with intent to consume; second, driving a motor vehicle under the influence of narcotic substances and intoxicating drinks. The court decided to refrain from pronouncing punishment upon him for these two charges and required him to provide a written undertaking accompanied by financial security of one hundred Kuwaiti dinars—which the appellant paid—committing himself to good conduct. The appellant breached the conditions of his undertaking before the period specified therein expired by committing the offenses of possessing a narcotic with intent to consume, being in a state of manifest drunkenness, and disturbing others' peace because of alcohol. He was convicted of those offenses in Case No. ....... of 2011, Narcotics Felonies, in which judgment was given placing him in a treatment facility for addiction, a final judgment not open to appeal. Accordingly, the challenged judgment's conclusion canceling Appellate Judgment No. ...... of 2010 insofar as it upheld First-instance Judgment No. ...... of 2010 deciding to refrain from pronouncing punishment upon the appellant, and ruling anew to sentence him to four years' imprisonment with labor, a fine of one thousand dinars, and withdrawal of his driving license for one year—a penalty within the range prescribed for the two aforementioned charges owing to the connection between them provided for in Article 84/1 of the Penal Code—accords with the correct law. This is not affected by the judgment having been issued while the appellant was in the treatment facility for addiction pursuant to the judgment issued in Case No. ..... of 2011, Narcotics Felonies. The appellant's objection to the judgment concerning the foregoing is therefore misplaced.