Sincere remorse is not a formal indication of admitting one's guilt, but an appropriate attitude towards what has been committed, which involves a proper critical assessment by the guilty of their illegal behavior, their condemnation and the desire to settle the guilt, which must be confirmed by concrete actions aimed at correcting the situation caused by the criminal offense. The fact of a person's sincere remorse for committing a crime must be reflected in the materials of the criminal proceedings. This conclusion was reached by the Supreme Court by the panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation when considering case No. 199/6365/19 .
According to Articles 50 and 65 of the Criminal Code, a person who has committed a crime must be given a punishment that is necessary and sufficient for his correction and prevention of new crimes. Based on the specified goal and principles of justice, proportionality and individualization, the punishment should be proportionate to the nature of the committed actions, their dangerousness and the identity of the perpetrator.
According to the provisions of Art. 75 of the Criminal Code, if the court, except in cases of conviction for a corruption crime, when imposing a punishment in the form of correctional labor, service restriction for military personnel, restriction of freedom, as well as imprisonment for a term of not more than 5 years, taking into account the gravity of the crime, the identity of the culprit and other circumstances of the case , will come to a conclusion about the possibility of correction of the convict without serving the sentence, he can make a decision on release from serving the sentence with probation.
When making a decision on release from serving a probationary sentence, the appellate court took into account PERSON_1's compensation for damage to the victim and his admission of guilt, positive data about the convict's identity, as well as the fact that he has a minor child. The court also took into account the position of the victim, who asked to impose a punishment of PERSON_1, not related to deprivation of liberty, and showed that he has no property and/or other claims against the convicted person. Therefore, the court included sincere remorse and voluntary compensation of damage to the mitigating circumstances, and committing the crime while intoxicated to the aggravating circumstances.
However, the panel of judges believes that the appellate court did not sufficiently take into account the circumstances of the crime, namely the nature of the requirements of the traffic rules, because the convicted person deliberately got behind the wheel of a vehicle in a state of alcohol intoxication, moved in a populated area, which could cause more serious consequences, but the convicted person violated was indifferent to it. In particular, as can be seen from the factual circumstances established by the courts, PERSON_1 drove onto the sidewalk, where pedestrians could be, and stopped only after hitting a pole. In addition, he immediately left the scene of the traffic accident, calling a taxi.
The Supreme Court has repeatedly noted that the commission of the crime provided for in Art. 286 of the Criminal Code, a driver who drives a vehicle under the influence of alcohol, usually excludes the application of the institution of exemption from serving a probationary sentence.
Under such circumstances, even a positive characteristic, the presence of an underage child and compensation for damage to the victim cannot be recognized as sufficient grounds for applying to PERSON_1 the provisions of Art. 75 of the Criminal Code and exemption from serving the prescribed punishment.
In addition, the appellate court did not take into account that the criminal offense committed by PERSON_1 belongs to socially dangerous crimes in the field of traffic safety and operation of transport, and therefore the position of the victim in the case regarding the punishment that the guilty person must bear for the crime committed, when deciding this issue by the court is not decisive.
Also, the panel of judges considers appropriate the reference of the prosecutor to the consistent practice of the Supreme Court, according to which repentance implies, in addition to admitting the fact of committing a crime, also a real, frank, and not imaginary recognition of one's guilt in the committed crime, sincere regret about it and condemnation of one's behavior, which should first of all be expressed in the person's effort to compensate for the damages caused by the crime, the desire to correct the consequences of the crime, and the willingness to bear the punishment.
In connection with the above, it can be concluded that sincere remorse is a certain mental state of the guilty person, when he condemns his behavior, seeks to eliminate the damage caused and decides not to commit crimes again, and this is objectively confirmed by the person's recognition of his guilt, disclosure of all the circumstances of the case, taking actions aimed at helping to solve the crime or compensation for the damage caused or elimination of the damage caused.
However, from the materials of the criminal proceedings, it can be seen that PERSON_1 did not admit all the circumstances of the criminal offense, in particular, he appealed the verdict of the local court and asked to close the criminal proceedings, referring, among other things, to inadmissible evidence collected during the pre-trial investigation and false statements of certain witnesses about the event of the crime, that is, he did not give a critical assessment of his illegal behavior, formally indicating the recognition of his guilt, which is not consistent with the above-mentioned motives regarding the definition of sincere remorse (vol. 3, para. 155-164).
Thus, the court's conclusions on the dismissal of PERSON_1 on the basis of Art. 75 of the Criminal Code from serving the main punishment is an incorrect application of the law of Ukraine on criminal liability, since the release does not contribute to the purpose of punishment – the correction of the convicted and the prevention of new crimes and is an unreasonably soft measure of coercion, which cannot be considered fair, proportional and commensurate with the degree of gravity of the committed criminal offense offense and the person of the culprit.
Taking into account the above, the cassation appeal of the prosecutor is subject to satisfaction, and the decision of the court of appeals regarding PERSON_1 is to be annulled with the appointment of a new trial in the court of appeals on the basis of clauses 2, 3, part 1 of Article 438 of the Criminal Procedure Code, during which it is necessary to take into account that the application of the provisions of Art. 75 of the Criminal Code is an incorrect application of the law of Ukraine on criminal responsibility, which resulted in the inconsistency of the prescribed punishment with the degree of severity of the criminal offense and the person convicted due to leniency.