defend
Dear presiding judge and judge,
Lawyer _ _ _ was appointed by the District People's Court and _ _ _ Law Firm as the first-instance defender of the case of the defendant _ _ _ suspected of robbery. The following defense opinions are put forward according to relevant laws and facts, and we urge the court to fully consider and adopt them.
Defenders generally believe that although the defendant constitutes robbery, it has statutory and discretionary mitigating circumstances. According to the actual situation of this case, according to the sentencing guidance of the Supreme People's Court and the criminal policy of combining leniency with severity, the collegial panel is requested to sentence the defendant to a mitigated punishment of less than three years and declare a suspended sentence.
1. The defendant in this case has discretionary and statutory mitigating circumstances.
(1) The defendant has the following discretionary mitigating circumstances.
1, the defendant is a first-time offender.
The defendant has no criminal record and has not received any administrative punishment (such as public security detention and reeducation through labor).
2. The defendant has a good attitude of pleading guilty and shows repentance.
From the investigation stage to today's trial, the defendant confessed his crime truthfully, and his attitude of pleading guilty was very good, and he regretted his criminal behavior.
3. The defendant has less subjective malignancy.
Specifically reflected in:
(1) From the reason of committing the crime, it is because my father is ill and has no money for treatment, and he is forced by his livelihood, which is very different from being used for luxury;
(2) From the implementation process of the crime, it is not a premeditated crime that has been carefully prepared, and its subjective desire is that it is unwilling to aggravate the harm to the victim when hurting the victim;
(3) Judging from the pursuit of criminal results, the criminal will is not firm.
4. The plot and consequences are not serious.
The violence in this case is much lighter than that in ordinary robbery. The tools used were not deadly weapons, such as guns and knives, but only caused skin injuries to the defendant.
5. Based on the defendant's family situation, personal situation and growth experience, compared with ordinary crimes, the leniency of the criminal policy of combining leniency with severity should be implemented.
The defendant's mother was abducted at the age of two, and her whereabouts are still unknown. 14 dropped out of school and became the economic pillar of the family. Now my father is paralyzed in bed and has no money to treat diseases. Although 19 is legally a person with full capacity, most of his peers at this time are still students, and his ability to control and distinguish right from wrong is far from that of a fully mature person.
It should be noted that although the defendant has no actual behavior of compensation, his father and himself have a positive attitude towards compensation. At the same time, the defendant did not pay the compensation because his family was really poor and could not pay the compensation, which was essentially different from the kind of money that did not pay the compensation.
(2) The defendant has statutory mitigating circumstances.
If the defendant attempted to commit a crime, he may be given a lighter or mitigated punishment in accordance with the provisions of the second paragraph of Article 23 of the Criminal Law.
Second, the determination of the starting point of sentencing in this case.
The Supreme People's Court's sentencing guidance stipulates the starting point of sentencing for robbery as follows: if a person robs once, the starting point of sentencing can be determined within the range of fixed-term imprisonment of more than three years and less than five years, so the starting point of sentencing in this case should be fixed-term imprisonment of more than three years and less than five years. The defense believes that the collegial panel should give the defendant a minimum starting penalty of three years according to the actual situation of the case. The reason for this is the following：
The starting penalty of sentencing mainly determines the starting penalty range of sentencing defendant from the aspects of consequences, means, amount, frequency, whether it is possible to aggravate the circumstances and whether it is lighter. As mentioned above, the defendant in this case has many mitigating circumstances and no aggravating circumstances, and his behavior is one of the lightest manifestations in robbery, so the minimum sentencing starting point should be given.
Third, the determination of the defendant's benchmark punishment.
In this case, the benchmark penalty for the defendant's aggravated punishment is the amount of the defendant's robbery of the victim's property. The property robbed by the defendant was equivalent to more than 3,900 yuan. According to the guidance of the Provincial High Court, for every increase of 1000 yuan, the sentencing range is 6 months to 8 months. The defense believes that combined with the actual situation of this case, it is recommended that the defendant's sentencing range be 6 months. The specific reasons are the same as above.
Fourth, the judgment pronounced in this case.
(1) The circumstances of adjusting the benchmark penalty in this case are as follows
1, the defendant is an attempt.
Paragraph 2 of Article 3 of the Supreme People's Court's Sentencing Guidance stipulates that the benchmark punishment can be reduced by 50% compared with the accomplished crime, considering the degree of criminal behavior, the size of damage and the reasons for the attempted crime.
The defense believes that in combination with the actual situation of this case, the defendant in this case should be treated leniently by nearly 50%. The reason for this is the following：
(1) Judging from the results of this case, the actual result of this case is that the victims are only skin injuries, which are very harmful in the robbery.
(2) Put the attempted plot into the overall consideration of all the plots of the case.
When deciding on sentencing the attempted offender, the attempted plot should be put into all the plots of the case to investigate its significance. If the plot of attempted crime plays an important role in all the plots, thus affecting or even significantly affecting the degree of social harm of the case, it may be decided to reduce the punishment for attempted crime.
(3) from the determination of the defendant's criminal will
Attempted crime means that the perpetrator's criminal will is suppressed and the criminal intention is not realized. If the criminal will is average or weak, the subjective malignancy will be less, and the punishment can be lighter or mitigated, and the range can be relatively larger.
2. The defendant pleaded guilty voluntarily in court.
Paragraph 7 of Article 3 of the Supreme People's Court's Sentencing Guidance stipulates that the benchmark penalty can be reduced to below 10% according to the nature of the crime, the seriousness of the crime, the degree of confession and the performance of repentance.
(2) Factors that should be considered when sentencing this case.
1, the defendant's family situation is special.
The special circumstances of the defendant's family have been introduced above, so I won't go into details here.
2, the same case with the principle of judgment
According to cases collected by defenders:
To sum up, we think it is more appropriate to sentence the defendant to fixed-term imprisonment of not more than three years.
Fourth, it is more appropriate to sentence the defendant to probation in this case.
1, the defendant meets the conditions of probation.
If he is sentenced to fixed-term imprisonment of not more than three years or criminal detention and meets the applicable conditions for probation, he may be sentenced to probation according to law; If the circumstances of the crime are minor and there is no need to be sentenced to punishment, criminal punishment may be exempted.
2, sentenced to probation in line with the criminal policy of combining leniency with severity, is the embodiment of judicial humanization.
The criminal policy of combining leniency with severity is the basic criminal policy in China at this stage, which clearly requires that "leniency" be accurately grasped and correctly applied according to law. The "leniency" in the criminal policy of combining leniency with severity mainly refers to the fact that the defendant's criminal circumstances are minor and less harmful to society, or the criminal circumstances are serious, but there are statutory and discretionary lenient punishment circumstances, and the subjective malignancy is relatively small and the personal danger is not great, and the punishment can be lightened, mitigated or exempted according to law; Acts that have certain social harm, but the circumstances are obvious and the harm is slight, are not treated as crimes; For those who cannot be imprisoned according to law, non-custodial sentences such as probation, public surveillance and single penalty shall be applied as far as possible.
The defendant is the only worker in the family. If the defendant is severely punished, not only will the defendant's elderly and paralyzed father be left unattended, but the elderly will also face the loss of the only financial support for their livelihood and medical treatment. In any case, this situation is a discordant note in a harmonious society.
To sum up, I implore the court to sentence the defendant to fixed-term imprisonment of not more than three years and suspended sentence.