Processo nº 27/15. 8 PFSTB.E1
I – In view of the insensitivity expressed by the defendant to the repeated censorship judgments issued by the condemnatory sentences to which he was subjected and to the penalties imposed on him, which did not prevent him from practicing new criminal offenses during the period of suspension of the execution of the prison sentence. applied, and as the defendant has not yet evidenced in internalization the devaluation of the conducts he adopted, it does not seem possible to formulate a favorable prognosis judgment regarding his future behavior, all resulting in a clear impossibility for the defendant’s re-socialization to be able to do yet. in freedom.
They agreed, in a conference, in the Criminal Section of the Court of Appeal of Évora:
I – REPORT
1. 1. – Defendant Decision
In the singular common procedure with paragraph 27/15. 8 PFSTB of the Criminal Section of the Local Instance of Setúbal – J2 of the Judicial Court of the Setúbal District, the defendant JV, better identified in the case, on charges of the Public Prosecutor’s Office, was put to trial for the practice, in material authorship and in real contest, of a crime offending qualified physical integrity, p. and p. by articles 143, 145, paragraphs 1, point a), and 2, with reference to article 132, paragraph 2, point l), of the Penal Code, and a crime of disease spread, in the attempted form, p. and p. by articles 283, paragraph 1, point a), 22 and 23 of the Penal Code.
Conducted the trial, the decision that the final and moreover, decided as follows:
“For these reasons, I consider the accusation founded and consequently:
a) condemn the defendant JV for the practice of one offense of crime to physical integrity qualified , p. and p. by articles 143, no. 1 and 145, no. 1, al. a) and no. 2, with reference to article 132, no. 2, al. l), all of the Penal Code, which occurred on January 24, 2015, under the penalty of 8 (eight) months in prison;
b) I condemn the accused JV for the practice of a crime of spreading disease, in the attempted form, P. and p. by article 283, paragraph 1, point a), 22nd and 23rd of the Penal Code, which occurred on January 24, 2015, under the penalty of 2 (two) years in prison;
c) In addition to those applied in subparagraphs a) and b), I condemn defendant JV to a single sentence of 2 (two) years and 4 (four) months in prison ;
(…) »
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1. 2. – Resource
1.2.1. – Unhappy with this decision, the defendant appealed from it, arguing for the suspension of the execution of the single prison sentence that was applied to him, with the obligation of the defendant to prove his internment in a rehabilitation clinic, ending his motivation with the following conclusions:
«I. The purpose of this appeal is the matter of the law of the sentence handed down in the present case, which sentenced the defendant, on a legal basis, to a single sentence of 2 (two) years and 4 (four) months in prison, for practice, in authorship material and in the consummated form, of a crime of offense to qualified physical integrity provided for and punished by articles 143, no. 1 and 145, no. 1 , al.a) and no. 2, with reference to article 132 2, paragraph 2 al. l) all of the Penal Code and, of a crime of spreading disease, in the attempted form, foreseen and punished by article 283, paragraph 1, al.a), 22 and 23 of the Penal Code.
III. The “a quo” court gave the defendant a two-year prison term and four months in prison.
IV. Now, while it is true that the defendant has had several previous convictions, it is also true that for some months he was trying to rehabilitate himself, trying to restore his professional life.
V. Taking advantage of all the “odd jobs” you can provide for the sustenance of your home, specifically and especially, at weekends.
SAW. Compliance with the sentence imposed on you will certainly prevent you from fulfilling your obligations, as you will be deprived of work and without money to cover your expenses.
VII. In addition, the defendant is a consumer of narcotic products and drinks alcohol in excess, and has not been able to rehabilitate himself, always with a very deficient immune system.
VIII. Compliance with the prison sentence applied will lead the defendant to confront and stay with a means that will negatively affect him,
IX. The penalty applied to the defendant should be suspended in his execution with the obligation for the defendant to prove that he is interned in a rehabilitation clinic.
X. The fulfillment of the prison sentence applied will lead the defendant to confront and stay with a means whose memories may adversely affect him, putting at risk everything that has been achieved in terms of rehabilitation.
XI. In the certainty that hospitalization, in addition to enabling the defendant’s rehabilitation, will not fail to operate as a form of general and special prevention, in order to avoid the practice of identical facts in the future.
XII. For this reason, the Tribunal a quo violated, among others, the Arts. 40, paragraphs 2 and 43, 58 and 71, all of the Penal Code.
IN THESE TERMS, AND IN OTHER LAWS, THIS APPEAL MUST BE JUDGED PROCEEDING AND, CONSEQUENTLY:
BE THE PRISON PENALTY APPLIED SUSPENDED IN ITS EXECUTION WITH THE OBLIGATION TO PROVIDE INTERNATION IN A REHABILITATION CLINIC.
THEREFORE MAKING HABITUAL AND NECESSARY JUSTICE ».
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1.2.2. – The Public Ministry responded, claiming that the appeal should be rejected due to a lack of indication of the violated legal rules and, if this is not understood, defending the appeal as unfounded and maintaining the contested decision.
He drew the following conclusions:
‘1) The appellant did not take a position on the sense in which the court under appeal interpreted each rule or with which it applied it, nor the sense in which it should have been interpreted or with which it should have been applied; nor did it give rise to any error in determining the applicable standard.
2) He only mentioned rules that, in his opinion, have been violated, which appear to be out of context with the content of the appeal, so there seems to be a lapse in this part, namely:
– Arts. 40, paragraph 2 (“in no case can the penalty exceed the measure of guilt”), and 71, CP (“determination of the measure of the penalty”). However, he did not react against the concrete measure of the penalty ;
– art. 43, of the CP, which regulates the substitution of the prison sentence applied to a measure not exceeding 1 year, which is not subject to discussion in the present case, since the single sentence of 2 (two) years was applied and 4 (four) months of effective imprisonment and the appellant did not react against the concrete measure of the sentence; and
– art. 58, of the CP, which concerns the penalty of substituting work in favor of the community, in case of imprisonment applied to a measure not exceeding 2 years, which is also not under discussion in the case under consideration for the same reasons.
3) Thus, the accused did not fulfill the due legal formalities for the appeal in matters of Law, as he violated the provisions of art. 412, no. 2, als. a) -c), of the CPP, so the appeal filed by it must be rejected, in accordance with the provisions of article 420, paragraph 1, al. c), of the CPP.
If this is not understood, and without giving up, the Public Prosecutor’s Office understands that the appellant is not right, and the appeal should be dismissed and, consequently, the Doubt Judgment appealed should be confirmed, for the reasons explained below.
4) Regarding the suspension of the execution of the prison sentence, the author HH Jescheck clarifies in the following terms: “the defendant’s favorable social prognosis consists in the hope that the convict will feel the conviction as a warning and that he will not commit any crime in the future. For this reason, the prospect of an “orderly and lawful life is no longer required, (…) since for the preventive purpose of the suspension it is enough that it does not delineate again in the future. Hope that does not mean certainty (… The court must be willing to take a prudent risk, but if there are serious doubts about the convict’s ability to understand the opportunity for resocialization offered to him, the prognosis must be negative (…).
The prognosis requires a full assessment of all the circumstances that make possible a conclusion on the defendant’s future conduct. These circumstances are your personality (eg, intelligence and character), your previous life (for example, other offenses previously committed of the same or another nature), the circumstances of the offense (for example motivations and purposes), your behavior after having committed the crime (for example, reparation for the damage, regret), the circumstances of your life (for example, profession, marriage and family) and the expected effects of the suspension “.
5) The Public Prosecutor does not understand how it can be predicted that the mere threat of imprisonment is sufficient to prevent the accused from committing new criminal offenses.
6) From the outset, nothing in the file allows us to believe that the suspension of the execution of the prison sentence is sufficient for the accused to be willing to change his behavior, which has been contrary to the law.
7) In fact, the personality of the accused manifested in the criminal offenses he committed, offending qualified physical integrity, in the consummated form, and spreading the disease, in the attempted form, in an effective contest, as stated in the factuality given as proven, in In particular, remove it with your hands, the bandage that you had placed around your head to cover your wound and rub it, bloody, on the face of DG DG’s right side, next to his ear and neck, at the same time. which said: “take care that I have HIV”, reveals high perversity and danger, and total alienation and indifference towards personal legal assets that are alien to others, namely the nurse’s life.
8) As for the “conditions of his life”, the applicant argued that “for a few months he had been trying to rehabilitate himself, trying to reestablish his professional life”, not giving him reason.
9) As you understood, and rightly, Mma. Law judge, who formed his conviction, in this part, in the social report on pages 101-107, the accused has revealed an inconsistent adherence to specialized treatment in relation to the addictive problem (drug addiction and alcoholism), showing difficulty in adhering to the programs therapeutic options that have been proposed, which has not contributed to a behavioral stabilization, with a reduced motivation to invert their way of life.
10) The defendant himself acknowledged, in the appeal he filed, that he did not have the capacity to rehabilitate himself.
11) Regarding the conduct prior to the crime, we have already had three previous occasions, the defendant benefited from the application of the suspension of the execution of the prison sentence:
i) in Proc. n. ° — / 08.3PBSTB, of the 3rd Criminal Court of the Judicial Court of Setúbal, by decision of 12.02.2010, rendered final on 17.03.2010, for facts reported on 12.21.2008, was the defendant convicted of the practice of a crime of domestic violence, with a sentence of two years in prison, suspended in its execution for an equal period of time, subject to measures to deter drug use and excessive alcohol consumption ”;
ii) in Proc. n, ° —- / 09.7PBSTB, of the 2nd Criminal Court of the Judicial Court of Setúbal, by decision of 17.10.2011, rendered final on 30.01.2012, for facts reported on 7/24/2009, the defendant was condemned for committing a crime of harm with violence, p. and p. by Articles 212 and 214, paragraph 1, al. a) of the Penal Code, in the sentence of five years in prison, suspended in its execution for an equal period of time, subject to a trial regime and condition to undergo medical treatment / follow-up by the CAT of Setúbal / Hospital de S. Bernardo , with DGRS monitoring as to alcohol dependence , as well as not approaching the Cervejaria P. establishment, nor contacting the owners or employees of that establishment;
iii) in Proc. nº — / 14.1PBSTB, of the Local Criminal Court of the Judicial Court of Setúbal – Judge 5, by decision of 11.19.2015, which became final on 12.21.2015, for facts reported on 7/29/2014, was the defendant condemned for the practice of a crime of domestic violence, in the sentence of four years in prison, suspended in its execution for an equal period of time, subject to a regime of proof, and in the accessory penalty of prohibition of contact with the victim.
12) I underline that in the course of the period of suspension of the execution of the prison sentence applied in the context of the procedure referred to in ii), the accused committed the criminal offense referred to in iii), which demonstrates that the threat of arrest, already in the time of conviction under the proceeding, referred to in ii), was not adequate or sufficient.
13) The defendant continued with his criminal course, with the practice of the facts for which he was tried and convicted in the present case, on January 24, 2015, in the middle of the periods of suspension of the execution of the prison sentences applied within the scope of of the processes referred to in ii) and iii), which proves, in short, that the suspension of the execution of the prison sentence would not be adequate, fair or sufficient.
14) The defendant expresses total detachment and indifference to the rules of life in society, because he completely ignored the previous sanctions that were imposed on him and that proved to be inadequate to keep him from crime.
15) In short, not only does the community’s security impose the deprivation of the defendant’s freedom, preserving the “minimum limit of general prevention constituted by the inalienable defense of the legal system”, but it also exposes high needs for resocialization that are not able to be overcome in community.
16) It is not possible to issue a judgment of prognosis favorable to the reinsertion of the accused in society, proving to be unfair, insufficient and inadequate the application of the substitution penalty invoked by the appellant (suspension of the execution of the prison sentence) to fulfill the purposes of the punishment .
17) In effect, the substitution of the prison sentence should be prohibited in the present case, since only with the application of the effective prison sentence will pernicious feelings of insecurity be avoided – a possible substitution would translate into an incomprehensible indulgence, affecting the confidence of the community. in the validity of the Law and in the administration of Justice.
18) Thus, in view of the urgent demands for general and special prevention that are felt in the present case, the Public Ministry understands that the Doubt Judgment appealed applied the Law correctly, so it should be kept in its files. precise terms, and the accused serving a single sentence of 2 (two) years and 4 (four) months of effective imprisonment.
Terms in which, and no more than you. supply, the Doubt Judgment subject to appeal must be kept in full.
V. Exas. they will do the usual Justice! ».
1.2.3. – When the case was brought to this Court of Appeal, the Honorable Deputy Attorney General, in the intervention referred to in article 416 of the CPP, endorsing the position defended by the Public Prosecutor in the 1st Instance, pronounced in the sense the groundless appeal and maintenance of the contested decision.
1.2.4. – In compliance with the provisions of article 417, paragraph 2, of the CPP, without a response, a preliminary examination was carried out, after which, having collected the visas, the proceedings were the conference, in accordance with the provisions of art. 419, no. 3, of the same CPP.
II – GROUNDS
2. 1. – Previous Question
The Public Prosecutor maintains that the appeal must be rejected under the terms of article 420, paragraph 1, paragraph c), of the CPP for non-compliance with the provisions of article 412, paragraph 2, subparagraphs a) -c), of the CPP, since the appellant did not indicate the legal rules violated by the contested decision, nor did he explain the meaning in which the rules applied by the Tribunal a quo should have been interpreted.
We think there is no reason for him.
Indeed, the appellant claims that the Tribunal a quo violated, among others, Articles 40, paragraph 2, 43, 58 and 71 of the Penal Code.
It is true that articles 43 and 58 do not correspond to the suspension of the execution of the single prison sentence required by the defendant, which is probably due to a lapse in writing – a lapse that the Public Prosecutor’s Office also admitted to verifying. if – but he does not fail to clearly indicate the meaning of his appeal and the penalty he believes should be applied (prison sentence with suspended execution subject to obligation).
On the other hand, in the case of an appeal that calls into question the concrete penalty applied – the penalty of effective imprisonment – the reference to Articles 40 and 71 is not inappropriate.
In these terms, considering that there is no doubt as to the object of the appeal and that the lapse in the indication of the violated legal norms does not include any of the situations of appeal rejection provided for in paragraph 1 of article 420 of the CPP, you will know about the appeal.
2. 2. – Object of the Appeal
Article 412 (1) of the CPP provides that the motivation specifically specifies the grounds for the appeal and ends with the formulation of conclusions drawn by articles, in which the applicant summarizes the reasons for the request .
And in paragraph 2 of the same legal provision, it is also determined that regarding matters of law, the conclusions also indicate:
a) The violated legal rules;
b) The sense in which, in the appellant’s view, the defendant court interpreted each rule or with which it applied it and the sense in which it should have been interpreted or with which it should have been applied; and
c) In the event of an error in determining the applicable standard, the legal standard that, in the applicant’s understanding, should be applied.
It is a peaceful understanding that the scope of the appeals is defined by the conclusions drawn by the appellant from the respective motivation, which delimit the issues that the court ad whom it has to consider, without prejudice to those that are unofficially known (cf. Germano Marques da Silva in Curso de Criminal Procedure, vol. III, 2nd ed., Page 335 , Simas Santos and Leal Henriques,in Resources in Criminal Procedure, 6th ed., 2007, p. 103, and, among many others, Ac. of the STJ of 12/05/2007, Procº 3178/07, 3rd Section, in www.stj.pt ).
With regard to the defects provided for in paragraph 2 of article 410 of the CPP, of unofficial knowledge, in this case, neither the applicant invokes their existence, nor, ex officio , if the verification of any of them is envisaged.
On the other hand, since the appellant’s dissent is centered on what has been judged in matters of law, thus demarcating the object of the appeal, the decision of the 1st Instance on the matter of fact is finally made.
In view of the conclusions presented, which reflect the reasons for divergence from the contested decision, the question to be examined and decided on is whether the single prison sentence that was applied should be suspended in its execution.
2. 3. – The Appealed Decision
In the sentence handed down by the 1st Instance, the following facts were proved and not proved:
« 2.1 Facts proved
The cause was discussed and the evidence was produced, the following facts were established, with interest for the decision:
a) On January 24, 2015, at a time not specifically determined, but around 9:30 pm, the defendant went to the Hospital de São Bernardo, in Setúbal, belonging to the Centro Hospitalar de Setúbal, EPE, located at Rua Camilo Castelo Branco , in Setúbal, to receive medical assistance due to a head injury.
b) There, he was attended by nurse M who accompanied him to the small surgery room, indicating that there he should wait for a doctor to arrive to suture the wound.
c) When Nurse M held the defendant’s arm to help him sit in an existing chair, the latter in a continuous act and without anything foreseeing he punched him in the face on the left side, at the same time saying “you you don’t touch me that I have dog meat ”, just not continuing the aggressions for having been insured by a relative of a user who was there.
d) As a result of the defendant’s conduct, M felt pain in the affected body part.
e) At that moment, the nurse DG, who passed by the small surgery room, upon hearing his colleague Marisa screaming for help, was immediately at his aid.
f) He immediately went to the defendant who was trying to grab Nurse M and held him up by sitting on the chair.
g) At that moment, the defendant removed with his hands the bandage that he had placed around his head to cover the wound and rubbed the bloody bandage on the face of DG DG’s right side, next to his ear and neck, at the same time he said “Take care that I have HIV”.
h) Due to the defendant having removed the bandage from his head, where he had an injury, he started bleeding profusely, with blood running down his neck and arms, which also reached the arms of the DG nurse who continued to hold the defendant, until the arrival of the defendants. Hospital security elements.
i) The accused has the HIV1 and HCC virus (genotype 1a), an infectious and contagious disease, which he knew.
j) On 26.01.2015 DG took antiretroviral medication, having been followed in the infectious disease unit, during the period of 6 months, with the results of the analyzes being negative.
k) In acting in the manner described above, the accused predicted and wanted to molest M’s body and health, which he did, motivated by the fact that she was a Nurse at the Centro Hospitalar de Setúbal and because of the functions performed by her.
l) With his conduct, the defendant wanted to contaminate the DG nurse with the HIV virus of which he is a carrier and who knew well, which he did not achieve for reasons beyond his control.
m) I knew that HIV / AIDS has no cure for the time being and if the offended DG were contaminated he would be in danger of life and could die.
n) He always acted free, deliberately and consciously, knowing that his conduct was prohibited and punished by law.
More has been proven
o) The defendant started the use of narcotic substances at the age of 17, having at the age of 30 made the first attempt to treat drug addiction.
p) The defendant made several attempts to treat drug addiction, having revealed great difficulty in adapting to the rules inherent in the treatment programs of the communities he passed through, abandoning them without completing the respective programs.
q) From the age of 40, the accused began to drink alcohol in excess, a substance that facilitated the adoption of violent and unbalanced behavior by the defendant, which he knew.
r) In 1998, the defendant became aware that he had an irreversible infectious disease, which led him to two hospitalizations, one in 2004 (for 6 weeks) and another in 2007 (for 1 month).
s) The defendant has been accompanied by the DGRSP since 08.04.2010, having been initially referred by this entity to the therapeutic community “Vale D´Acor”, where he entered on 03.05.2010, leaving the accused to that community 15 days after admission, for not adapting to the rules and treatment program of the same, returning to the mother’s house.
t) Subsequently, still within that scope, the defendant joined outpatient follow-up at the Lisbon Alcoholology Unit of the Instituto da Droga e Toxicodependência (former CRAL) as a way of trying to recover from the addictive problem, which was transferred in March of 2011, for the Setúbal Treatment Team of the Institute of Drugs and Drug Addiction, at the request of the defendant.
u) The defendant shows marked apathy in relation to initiatives that promote his social reintegration, also showing difficulty in abandoning the abusive consumption of alcoholic beverages, which enhances his behavioral lack of control.
v) The defendant shows a depressed state, low self-esteem and a passive posture that conforms to his condition, remaining unoccupied and in most of his daily life remains at the home of his (deceased) parent, where he no longer has electricity and gas supply.
w) The defendant has shown inconsistent adherence to specialized treatment in relation to the addictive problem, showing difficulty in adhering to the therapeutic programs that have been proposed to him, which has not contributed to a behavioral stabilization, and there is little motivation to reverse his way of life.
x) The accused has a sister, with whom he does not deprive or live.
y) The defendant benefits from the allocation of € 180 per month of social insertion income and has received support at the food level through “CATI”.
z) The accused has a criminal record:
– in Proc. nº — / 08.3PBSTB, of the 3rd Criminal Court of the Judicial Court of Setúbal, by decision of 12.02.2010, which became final on 17.03.2010, for facts reported on 12.21.2008, the defendant was convicted of the commission of a crime domestic violence, in the sentence of two years in prison , suspended in its execution for an equal period of time, subject to measures to deter drug use and excessive alcohol consumption;
– in Proc. nº — / 09.7PBSTB, of the 2nd Criminal Court of the Judicial Court of Setúbal, by decision of 17.10.2011, rendered final on 30.01.2012, for facts reported on 7/24/2009, the defendant was condemned for the practice of a crime damage with violence, p. and p. by articles 212 and 214, no. 1, al. a) of the Penal Code, in the sentence of five years in prison, suspended in its execution for an equal period of time, subject to a trial regime and condition to undergo medical treatment / follow-up by the CAT of Setúbal / Hospital de S. Bernardo , with DGRS monitoring as to alcohol dependence, as well as not approaching the Cervejaria P. establishment, nor contacting the owners or employees of that establishment;
– in Proc. nº —- / 14.1PBSTB, of the Local Criminal Court of the Judicial Court of Setúbal – Judge 5, by decision of 11.19.2015, which became final on 12.21.2015, for facts reported on 7/29/2014, was the defendant convicted by practice of a crime of domestic violence, in the sentence of four years in prison, suspended in its execution for an equal period of time, subject to a regime of proof, and in the accessory penalty of prohibition of contact with the victim.
2.2 Unproven facts
With no relevance to the decision of the case, no fact has yet to be proved. ».
2. 4. – Appreciating and deciding
Fighting for the suspension of the execution of the single prison sentence that was set for him, the applicant essentially maintains that the fulfillment of the prison sentence applied will lead the defendant to confront and stay with a medium whose memories may negatively affect him, putting at risk everything that was achieved in terms of rehabilitation, and the hospitalization for the treatment of his toxic dependencies, in addition to enabling the defendant’s rehabilitation, will not fail to operate as a form of general and special prevention, in order to avoid the practice of facts identical in the future.
In response, the Public Prosecutor argued that, given the defendant’s previous convictions in prison sentences whose execution was suspended and the crimes in question committed in these records in full periods of suspension of those sentences, it is not possible to make any favorable prognosis judgment regarding the the defendant’s reintegration into society, proving to be unfair, insufficient and inadequate the application of the substitution penalty invoked by the appellant (suspension of the execution of the prison sentence) to fulfill the purposes of the punishment, concluding by maintaining the effective prison sentence that was imposed on him applied.
Let’s see.
The Tribunal a quo based the determination of the measure of the penalty in the following terms:
“ 2.5 Determination of the measure of the penalty
The facts are legally qualified and their subsumption to the incriminating legal precepts has been made, it is now necessary to determine the extent of the sentence.
The crime of offense to qualified physical integrity, p. and p. by articles 41, no. 1, 143, no. 1 and 145, no. 1, al. a) and no. 2, with reference to article 132, no. 2, al. l), all of the Penal Code, are punished with imprisonment from one month to four years, and the crime of spreading the disease, in the attempted form, p. and p. by articles 22, 23, 41, paragraph 1, 73, paragraph 1, als. a) and b) and 283º, no. 1, a), of the Penal Code, is punished with imprisonment from one month to five years and four months.
The application of a penalty aims at the protection of legal assets (positive general prevention) and the reintegration of the agent into society (special prevention).
In determining the concrete measure of the penalty, within the abstract limits defined in the law, it is necessary to consider all the circumstances that, not being part of the type of crime, put in favor or against the accused, that penalty being limited by his fault, revealed in the facts, and having the same to prove adequate to ensure the requirements of general and special prevention (cf. articles 40º, nºs 1 and 2 e 71º of the Penal Code).
In the case of the case records, it is necessary to assess the special prevention requirements to be taken into account (which are at a high level, given the existence of criminal records and the absence of demonstration of internalization of the devaluation of their conduct) and the general prevention requirements (which intense, given the nature of the protected legal assets).
Once the prevention framework has been defined, it is important to determine the guilt framework.
Thus, and in accordance with the provisions of article 71, paragraph 2 of the Penal Code, in determining the measure of the penalty, it is necessary to consider several factors, which are considered below.
The defendant’s guile takes the form of direct guile, having wanted to act in the same way as proven and aware of the illegality of his behavior.
As for the degree of illegality, it is necessary to consider the defendant’s mode of action (who punched M in the face), the areas of the body that were harassed (the face); the nature of the injuries (pain in the affected area), with no known disability.
With regard to the offended DG, the way the accused acted (rubbing the bloody bandage on his face), the contagious infectious disease that the accused has – HIV1 and HCC viruses (genotype 1 a) – a disease that has no cure, which attacks the immune system, destroying the body’s defending cells, permeable to other diseases, susceptible of leading to its decay.
In the present case, the nature of the profession of the offended DG, a nurse, whose function is to provide assistance and care to third parties in the health field, cannot be forgotten, and it was precisely in the exercise of his profession that the accused, while the user, in need of health care, acted on the victim, putting his health at risk, a result that he did not achieve for reasons totally beyond his control.
It is further considered that the offended DG, in addition to taking antiretroviral medication, was followed up in the infectious disease unit for a period of 6 months (with the necessary anguish of not knowing whether he had been infected with the HIV virus during this period).
It is also important to determine the measure of the sentence, the conduct before and after the practice of the facts contained in the present case, and the defendant has shown a behavior deviating from the Law, as he has already been tried and convicted for three crimes, two of which of domestic violence and one of damage with violence – that is, all of them practiced against the physical integrity of people, and for facts reported before the time being discussed here – in Proc. nº — / 08.3PBSTB, of the 3rd Criminal Court of the Judicial Court of Setúbal, by decision of 12.02.2010, which became final on 17.03.2010, for facts reported on 12.21.2008; in Proc. nº — / 09.7PBSTB, of the 2nd Criminal Court of the Judicial Court of Setúbal, by decision of 17.10.2011, final and unappealable on 01/30/2012, for facts reported on 07/24/2009; and in Proc. nº —- / 14.
It is clear that the crime verified here was not an isolated episode in the life of the defendant, because not only had he committed crimes (in number of three) before he had done these facts, but he revealed with his conduct not to internalization of the devaluation of its shares.
The accused does not appear to be professional or familiar, showing a depressed state, low self-esteem and a passive posture, conforming to his condition, remaining unoccupied and in most of his daily life he remains at the home of his (deceased) parent, where it no longer has electricity and gas supply.
The defendant reveals marked apathy towards initiatives that promote his social reintegration, also showing difficulty in abandoning the abusive consumption of alcoholic beverages, which enhances his behavioral lack of control.
Everything seen and considered, and in view of the aforementioned criteria, it is considered appropriate:
– the penalty of eight months in prison, for the crime of offense to qualified physical integrity; and
– the penalty of two years in prison, for committing the crime of spreading the disease, in the attempted form.
2.6 Legal cumulation
Article 77 (1) of the Penal Code provides that when someone has committed several crimes before making the conviction for any of them judged in a single sentence, the facts and the personality of the agent must be considered together.
And its number 3 adds that if the penalties applied to the crimes in competition are some of imprisonment and others of fine, the different nature of these remains in the single penalty resulting from the application of the criteria established in the previous numbers.
Now, given that the crimes committed by the accused, and under consideration in the present case, are in a competitive relationship, the respective presuppositions for the legal cumulation of the penalties are verified.
In the present case, the abstract frame has a maximum limit of 2 years and 8 months in prison – corresponding to the sum of the penalties concretely applied to the various crimes – and the minimum limit of 2 years in prison – corresponding to the highest of the penalties concretely applied to the various crimes.
Thus, considering the facts practiced by the defendant as a whole, combined with the personality of the accused, revealed in those same facts, denoting a deviant personality, oblivious to the legal and social rules that govern us, with a propensity to achieve physical integrity / health and even the lives of third parties, the number of victims affected, the legal penalties imposed on the defendant in the present case are added to the law and a single sentence of 2 years and 4 months in prison is determined.
2.6 Substitution of the prison sentence
Having the defendant been sentenced to a prison sentence of 2 years and 4 months in prison, it is necessary to consider the substitute prison sentences legally provided for and susceptible of being applied to the present case.
In the words of Prof. Fernanda Palma, “The protection of legal assets implies the use of the penalty to deter citizens from committing crimes (general negative prevention), to encourage the conviction that criminal rules are valid and effective and to deepen the awareness of legal values by citizens (positive general prevention). The protection of legal assets also means special prevention as a deterrent to the potential offender himself. On the other hand, the reintegration of the agent means special prevention in the choice of sentence or in the execution of the sentence. And, finally, retribution is not necessarily required for the protection of legal assets. Penalty as a censure of the will or of the decision against the law may be unnecessary, according to special preventive criteria, or ineffective to carry out general prevention ”-“ The Reforming Amendments to the General Part of the Penal Code in the 1995 Review: Dismantling, Strengthening and Paralysis of the Punitive Society ”, in Journeys on the Review of the Penal Code (1998), AAFDL, pp. . 25-51, and in Cases and Materials of Criminal Law (2000), Almedina, pp. 31-51 (32/33).
Suspension of the execution of the sentence
It is clear from the provisions of article 50 of the Penal Code, that the Court may suspend the execution of the prison sentence applied to a measure not exceeding 5 years if, taking into account the personality of the agent, the conditions of his life, the their conduct before and after the crime and the circumstances of it, conclude that the simple censorship of the fact and the threat of imprisonment adequately and sufficiently fulfill the purposes of the punishment, and the period of suspension should be fixed at the same term of the penalty applied, never lower to a year.
In order for the Court to decide to suspend the execution of the sentence, it is important that in view of the evidence resulting from the case file, and taking into account the personality of the agent and the circumstances of the fact, it concludes with a favorable prognosis regarding his behavior and convinces himself that the simple censorship of the fact and the threat of imprisonment, accompanied or not by the imposition of duties, will be enough to bring you closer to compliance with the rule.
In the present case, it cannot be forgotten that the defendant benefited from the suspension of the execution of the prison sentence, in the scope of cases nº — / 08.3PBSTB, of the 3rd Criminal Court of the Judicial Court of Setúbal, and nº — / 09.7PBSTB, of the 2nd Criminal Court of the Judicial Court of Setúbal, passed on res judicata, on 03/17/2010 and 01/30/2012 – where he was convicted of the practice of a crime of domestic violence, in the sentence of two years in prison, suspended in the his execution for an equal period of time, and subsequently convicted of committing a crime of violence with violence, with a sentence of five years in prison, suspended in his execution for an equal period of time, subject to a trial regime and condition of being subject to medical treatment / follow-up by CAT of Setúbal / Hospital de S. Bernardo, with DGRS follow-up regarding alcohol dependence,as well as not approaching the Cervejaria P. establishment, nor contacting the owners or employees of that establishment.
However, despite such a threat of imprisonment, the defendant came to commit, in the middle of the suspension of the execution of the prison sentence under the aforementioned case no. – the facts under consideration here (on 01/24/2015), as well as on 07/29/2014, the crime of domestic violence, where it came to be tried and convicted in Proc. nº —- / 14.1PBSTB, of the Local Criminal Court of the Setúbal Judicial Court – Judge 5.
In spite of the favorable prognosis judgments that have been successively formulated, the accused recurs in the criminal activity, committing the known illegal acts.
It appears to us that the threat of imprisonment did not have, nor does it have, any deterrent effect, returning the accused to delinquency and even during the respective period of suspension, revealing that the purposes of reprobation and prevention that have been underlying the suspensions the execution of prison sentences could not, through them, be satisfied.
In addition, it was proved that the defendant started using narcotic substances at the age of 17, having made his first attempt at drug addiction at the age of 30. The defendant made several attempts to treat drug addiction, having revealed great difficulty in adapting to the rules inherent in the treatment programs of the communities he passed through, abandoning them without completing the respective programs. From the age of 40, the accused began to drink alcohol in excess, a substance that facilitated the adoption of violent and unbalanced behavior by the accused, which he knew.
The defendant has been accompanied by the DGRSP since 08.04.2010, having been initially referred by this entity to the therapeutic community “Vale D´Acor”, where he entered on 03.05.2010, leaving the defendant in the said community 15 days after admission, for not adapting to the rules and treatment program of the same, returning to the mother’s house. Subsequently, still within that scope, the defendant joined outpatient follow-up at the Lisbon Alcoholology Unit of the Instituto da Droga e Toxicodependência (former CRAL) as a way to try to recover from the addictive problem, which was transferred in March 2011 , for the Setúbal Treatment Team of the Institute of Drugs and Drug Addiction, at the request of the accused.
The defendant reveals marked apathy towards initiatives that promote his social reintegration, also showing difficulty in abandoning the abusive consumption of alcoholic beverages, which enhances his behavioral lack of control.
The defendant shows a depressed state, low self-esteem and a passive posture that conforms to his condition, remaining unemployed and in most of his daily life he stays at the home of his (deceased) parent, where he no longer has electricity and electricity. gas supply.
The defendant has shown an inconsistent adherence to specialized treatment in relation to the addictive problem, showing difficulty in adhering to the therapeutic programs that have been proposed to him, which has not contributed to a behavioral stabilization, with a reduced motivation to invert his way of life .
It is understood that there is no element in the process that demonstrates that the defendant, in an effective way, internalized the devaluation of his actions, so that the Court was able to formulate a positive prognosis judgment, quite the contrary.
Without forgetting that in the social report prepared by DGRP, on 15.03.2017, the conclusion was drawn that “At this moment and after the recent death of the parent [02.02.2017], we consider that the JV is facing greater difficulties of subsistence and adjustment social and that the apathetic and disbelieving stance in his capacity for change was accentuated, a position that could aggravate the problem of alcohol abuse, being very difficult to motivate him to change in other axes while this is not properly balanced / overcome, being that doubts remain about whether the necessary rehabilitation will be successful in the community ”(pages 107).
The defendant’s previous relapsing behaviors and the antisocial manifestations of his current conduct reveal a clear lack of preparation of his personality, associated with his excessive consumption of alcoholic beverages, to behave lawfully, in society and in freedom.
It seems to us that the simple censorship of the fact and the threat of imprisonment will not be enough to bring the defendant closer to compliance with the rule.
For the foregoing, it is understood that a (new) suspension of the execution of the sentence does not satisfy the needs of reprobation and prevention, but the need to effectively serve the prison sentence is justified. »
In view of the content of the excerpt transcribed, it is clear that no censure deserves the contested decision either with regard to the measure of the sentence, or in the removal of the suspension of the execution of the sentence of imprisonment applied to the defendant, now appellant.
In fact, the defendant’s criminal past, for crimes against people, as well as the failure to take advantage of the replacement penalties imposed on him (suspension of the execution of prison sentences) are indicative of enormous indifference on the part of the defendant both in terms of rules both in terms of the penalties he has already suffered, as a result of the fact that the warnings resulting from the convictions against which he was subjected and the threat of imprisonment that were imposed on him did not constitute any counter-stimulus for the accused to continue in the criminal practice, having managed to prevent him from committing new criminal offenses.
On the other hand, the stance adopted by the defendant on trial, taking refuge in an alleged lack of knowledge about what actually happened and justifying his behaviors with a supposed ingestion of an unknown substance in circumstances that he does not even rigorously materialize, also shows that the defendant did not internalized the gravity and devaluation of his behaviors, revealing a high incapacity for self-censorship and, consequently, the lack of internal mechanisms that curb his impulses and prevent him from adopting conduct that violates the rights of third parties, namely the health and physical integrity of people who contact him.
The way the defendant has faced his problem of drug addiction, initiating several treatments in which he revealed great difficulty in adapting to the respective rules, coming to abandon such programs without completing them, and further aggravating his addictive problem when, from the age of 40 of age, began to drink alcoholic beverages in excess, substances that facilitated the adoption of violent and unbalanced behavior by the defendant, also shows that he has not shown any commitment to initiatives aimed at promoting his social reintegration, taking advantage of the opportunities that were granted to him, reflecting a passive posture and conformed to his condition, with enormous difficulty in abandoning the abusive consumption of substances that enhance his behavioral lack of control, which he is not unaware of.
However, under the terms of paragraph 1 of article 50 of the CPP, the court suspends the execution of the prison sentence applied to a measure not exceeding 5 years if, taking into account the personality of the agent, the conditions of his life , its conduct before and after the crime and the circumstances of it, conclude that the simple censorship of the fact and the threat of imprisonment adequately and sufficiently fulfill the purposes of the punishment, being that, in accordance with the provisions of paragraph 5 of the same legal provision, the period of suspension has the same duration as the prison sentence determined in the sentence, but never less than one year, counting from the transit of the decision.
The suspension of the execution of the sentence does not, therefore, depend on any model of discretion, but, rather, on the exercise of a linked power-duty, and should be decreed, in the manner that is considered most convenient, whenever the respective assumptions are verified. cool.
On the other hand, the suspension of the execution of the prison sentence cannot fail to be understood as a pedagogical and reeducative measure, with a view to adequately carrying out the purposes of punishment, that is, the protection of legal assets and the reintegration of the agent in society (art. 40, no. 1, of the Penal Code), which must be decreed if it proves adequate to remove the offender from the practice of criminality, even though he has previously been convicted in imprisonment (cf. Ac from the Supreme Court of 30.09.1999, Proc No 578/99 -… 5th, SASTJ, www.stj.pt )
And, as mentioned in Ac. of the STJ of 10.11.1999, Proc. nº 823/99, 3rd, in SASTJ, www.stj.pt:
«It is not guilt considerations that interfere in the decision on the execution of the sentence, but only reasons linked to the preventive purposes of the punishment, whether those of general positive prevention or integration, or those of special prevention of socialization, these are strongly taken into account in the suspension institute, provided that the requirements of general prevention are met, linked to the need to meet the expectations of the community in maintaining the validity of violated norms ».
Underlying the suspension is thus the possibility of formulating a favorable prognosis judgment regarding the future behavior of the defendant in order to understand that the conviction in question constitutes for him a serious warning and a strong warning that he will not delineate again, believing himself that, in the concrete conditions in which it finds itself, it is reasonably to believe that its re-socialization can still be done in freedom.
Finally, it is important to note that, in the case of a prognosis judgment, such a judgment does not necessarily have to be based on a “certainty”, just a well-founded “expectation” that the simple threat of punishment is sufficient to accomplish the purposes of the sentence. punishment and, consequently, the defendant’s re-socialization in freedom (cf., in this sense, Judgment of the Supreme Court of Justice of June 25, 2003, in CAJ of the STJ, year XXI, tome II, 2003, p. 221).
As LEAL-HENRIQUES AND SIMAS SANTOS refer, in Annotated Penal Code, I, p. 444, the Court should take a prudent risk, since hope is certainly not certainty.
In fact, since there can never be any assurance that a defendant, who has been suspended from executing a prison sentence, will not commit a new crime, there will always be some risk, albeit a calculated risk, with the that there are bases capable of supporting such a judgment with some firmness (cfr. Ac. STJ, 14.12.2000, Proc. No. 2769/00, 5th, in SASTJ, www.stj.pt ).
To this end, the Court must consider the elements referred to in the aforementioned article 50, paragraph 1, of the Penal Code, that is, the personality of the agent, his living conditions, the conduct before and after the crime and the circumstances of this, being that, considering all these circumstances, conclude favorably on the future behavior of the accused in the sense of admitting as very likely that the simple censorship of the fact and the threat of imprisonment will be enough to remove him from the practice of crime and to satisfy the other purposes of punishment (protection of legal assets), in such a case, he must suspend the execution of the penalty applied.
The prognosis judgment to be carried out by the court will therefore start from the combined analysis of the circumstances of the specific case, the living conditions of the accused, the conduct before and after the crime adopted by him and his revealed personality, an analysis that will allow to conclude, or not, for the viability of their socialization to be done in freedom.
In the sub judice case, the factual framework referred to above shows how high the special prevention needs are, and it is clear that the accused reveals a profound disrespect for previous convictions, which in no way impelled him to change his deviant behavior, without having the suspensions of execution of the prison sentences that were applied to him prevented him from returning to crime, and he came to commit the present facts precisely during the period of suspension of the execution of one of those penalties.
And from what was found in relation to the personal conditions of the appellant, there is no mention of any fact that would allow the conclusion that the defendant will feel the present sentence as a solemn warning, his possible recurrence being prevented by the simple threat of arrest.
Thus, it should be noted the insensitivity expressed by the appellant to the repeated censorship judgments issued by the sentencing sentences he was subjected to and to the penalties that were imposed on him, which did not prevent him from practicing the present criminal offenses during the period of suspension of the execution of the sentence. imprisonment penalty, although the defendant has not yet evidenced in internalization the devaluation of the conducts he adopted, it does not seem possible to formulate a favorable prognosis judgment regarding his future behavior, all resulting in a clear impossibility for the defendant’s re-socialization to be possible. do still at liberty.
And it would not be the imposition of an obligation for the accused to be subjected to internment in a rehabilitation clinic – an obligation that would always require his consent, pursuant to article 52, paragraph 3, of the Penal Code – that the it would prevent him from delineating again, since the various treatments he initiated with a view to treating his addictive problems came to be repeatedly breached and abandoned by him.
Thus, there are no facts that, with any firmness, support a favorable prognosis judgment regarding the future behavior of the accused and the possibility that his or her re-socialization can still be done in freedom.
In these terms, the determination of the concrete penalty is duly substantiated, a penalty that appears fair and balanced and borne by the defendant’s guilt, without any violation of the principle of proportionality or the prohibition of excess, as well as correctly ruled out the possibility of suspension of the sentence. execution of the prison sentence applied, since the simple censorship of the fact and the threat of serving the prison sentence are not enough to keep the defendant from the practice of criminality, no censorship deserves the contested decision.
Therefore, the appeal filed by the defendant must be dismissed.
2. 5. – Costs
As for the liability for the defendant’s costs, paragraph 1 of article 513 of the CPP establishes that the payment of the fee only takes place when there is a conviction in the first instance and total decay in any appeal.
Thus, having completely declined, the applicant is responsible for paying the respective costs, imposing himself therefore for his condemnation in the payment of those costs, with a justice fee fixed at 4 UCs (art. 8, no. 9 , the Procedural Costs Regulation and Table III thereto).
III – DECISION
Under the terms and for the reasons set out above, the judges of the Criminal Section of the Court of Appeal of Évora agree to dismiss the appeal filed by the accused JV as unfounded , fully confirming the contested sentence.
Costs by the appellant, with a justice fee set at 4 UCs (four units of account) – (article 513, paragraph 1, of the CPP and article 8, paragraph 9, of CPR and Table III attached thereto).
*
Prepared on a computer and fully revised by the rapporteur (article 94, paragraph 2, CPP)
Évora, 10 October 2017
Maria Leonor Botelho
Gilberto da Cunha
