Kuwait Court of Cassation principle number 56

Summary: - Refraining from pronouncing punishment. Not a punishment. Its nature: a determination by the court that the offender committed the offense attributed to him and his guilt was established, requiring his punishment if the court were to proceed with the trial, but it decided to halt the proceedings at that point because it found mitigating considerations to exist. The basis thereof: Article 81 of the Penal Code. - The court's exercise of the permission granted to it under this Article. Its condition: that it require the accused to submit an undertaking, with or without security, in which he undertakes to maintain good conduct. If he breaches the conditions of this undertaking, the court may, upon an application by the prosecuting authority, the person supervising him or the victim, proceed with the trial to impose on him the punishment prescribed for the offense which he committed and of which his guilt was established. An example of the Public Prosecution's application to the Court of Appeal to proceed with the case and punish the appellant under the charging Articles. - Proceeding with the trial procedures upon the application does not require a difference in the classification of the offense in the incident under consideration and the offense constituting the breach of the undertaking, or the finality of the judgment issued concerning it. The reason thereof. Rule: Article 81 of the Penal Code provides that "If a person is accused of an offense requiring a sentence of 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 for believing that he will not return to criminality, decide to refrain from pronouncing punishment and require the accused to submit an undertaking, with personal or real security or without security, in which he undertakes to observe certain conditions and maintain good conduct for the period it specifies, not exceeding 2 years. If the period specified by the court expires without the accused breaching the conditions of the undertaking, the previous trial proceedings shall be deemed never to have occurred. If, however, the accused breaches the conditions of the undertaking, the court shall order—upon an application by the prosecuting authority, the person supervising him or the victim—that the trial proceed, and shall impose upon him the punishment for the offense he committed and order forfeiture of the real security, if any. It follows from this provision that refraining from pronouncing punishment upon the accused is not a judgment imposing a punishment. Rather, it is in fact a determination by the court that the offender committed the offense attributed to him and that his guilt thereof was established before it, which would have required sentencing him to the imprisonment prescribed for that offense if the court had proceeded with the trial. However, it decided to halt the proceedings at that point because it found the mitigating considerations referred to in this Article to exist. Accordingly, as a condition for the court's exercise of the permission granted to it in this regard, the Article required that it require the accused to submit an undertaking, with or without security, in which he undertakes to maintain good conduct. If he breaches the conditions of this undertaking, the court may, upon an application by the prosecuting authority, the person supervising him or the victim, proceed with the trial to impose upon him the punishment prescribed for the offense which he committed and of which his guilt was established. That being so, and since the appellant had previously been convicted in the present case, registered as No. .../2009 Felonies - ..../2009 Mubarak Al-Kabeer, and its appeal No. .../2010 J.M/2, on the 2 charges of indecent assault by coercion and entering a dwelling without the consent of its possessor with intent to commit an offense, and the court of first instance ruled on 24/5/2010 to imprison him for 5 years with labor and immediate enforcement for what was attributed to him; and since the appellant appealed this judgment through the aforementioned appeal, the appellate court ruled on 14/10/2010 to admit the appeal as to form and, on the merits, to amend the appealed judgment insofar as it imposed imprisonment, to a decision to refrain from pronouncing punishment upon him, provided that he submit an undertaking with financial security of 500 dinars in which he undertakes to maintain good conduct for 2 years. In execution of this judgment, on 23/2/2011 the appellant paid the prescribed security amount. The appellant breached the conditions of the undertaking he submitted before the expiry of the period specified therein by committing, together with another, on 4/6/2011, an offense of theft by coercion, in respect of which Case No. 291/2011 Felonies - 17/2011 Sabah Al-Salem was registered. The Public Prosecution accordingly applied to the Court of Appeal requesting that it proceed with the case and punish the appellant under the charging Articles. The challenged judgment's conclusion upholding the first-instance judgment sentencing the appellant to 5 years' imprisonment for what was attributed to him and forfeiting the security—a punishment falling within the range of the punishment prescribed for the 2 aforementioned charges, owing to the connection between them pursuant to Article 84/1 of the Penal Code—therefore accords with the correct law. This is not affected by the difference in the classification of the offense in the incident under consideration and the other offense—constituting the breach of the undertaking—nor by the Public Prosecution's failure to submit proof of the finality of the judgment issued concerning it, which Article 81 of the aforementioned Law did not require. Accordingly, the appellant's criticism of the judgment concerning the foregoing is unfounded.