Goal against the Legislator in the Game against Crime | Channel Criminal Sciences
In World Cup year, the favorite subject is football. In Brazil, there is a game that is not limited to 90 minutes: it is the match between law and crime. The lawmaker is scaled up in the attack for this important confrontation, but has just scored a goal against. Thus, crime continues to grow in rankings .
This departure illustrates a recent legislative reversal that occurred recently, with the entry into force of Law No. 13,654 / 18, which sponsored important changes in the Penal Code, dealing with robbery and robbery involving the use of explosives, robbery using gun, and even bodily injury in the crime of robbery.
Goal of the legislator
In trying to be more rigorous in punishing the practice of robbery with the use of a weapon, the aforementioned law foresaw a greater penalty increase than previously fixed and ended up benefiting future authors and those already convicted of committing robbery crimes with the employment of any weapons other than those of fire, that is to say, crimes committed with a white weapon will have a more benevolent treatment.
The law, in the case of the crime of theft, introduced new qualifiers, provided for in paragraphs 4a and 7, establishing a penalty of imprisonment from 4 (four) to 10 (ten) years and a fine, ” if there is an explosive or similar artifact which causes a common hazard “, or” if the subtraction is of explosive substances or of accessories which, jointly or individually, enable it to be manufactured, assembled or used “, respectively.
In crimes of robbery, there is also a provision for an increase in sentence, in section VI of § 2, according to which the penalty is increased from 1/3 (one-third) to half ” if the subtraction is of explosive substances or accessories that , jointly or in isolation, enable their manufacture, assembly or employment ” and section II of § 2-A, provides that the penalty is increased by 2/3″ if there is destruction or breakage of obstacle by the use of explosive or similar artifact which causes common danger “.
According to the new law, the sentence is also aggravated for crimes of robbery, in which ” violence results in serious bodily injury “, since the predicted punishment was from 7 to 15 years and passed to 7 to 18 years of imprisonment.
Thus, based on the (questionable) premise that hardening sentences results in the fight against violence, the law has brought about important changes. However, the so-called “ball out” of the legislature was the change in the increase of penalty for theft with the use of a weapon, since, despite this increase, the law no longer foresees the increase for the use of other weapons (such as knives, stilettos, saws, etc.).
This was because there was a legal provision to increase the penalty for robbery from 1/3 to 1/2 if the violence or threat was carried out with the use of a weapon , but the new law revoked this and started to anticipate an increase of 2 / 3 only ” if the violence or threat is carried out with the use of firearms “, thereby excluding all other weapons. The new law, at this point, is more lenient, and is called novatio legis in mellius .
Thus, from now on, by Law 13654/18, the use of a white weapon no longer increases the penalty of the crime of robbery, and should be considered simple theft, with a penalty of 4 to 10 years of imprisonment.
Because it is a more beneficial law, there will be effects even for those already convicted, since the criminal law must always retroact if it benefits the defendant. Numerous Criminal Reviews can be expected to reduce sentences and possibly modify the penalty regime of those already convicted.
In an attempt to correct this goal against (as this clearly was not the intention of the legislator) to the Court, the 4th Criminal Chamber of the Court of Justice of São Paulo has recognized the formal defect of the legal text, since the norm did not have the proper approval by Congress, and that the law illegally and improperly suppressed the use of other weapons.
Therefore, once again, the need for care by the legislator in drafting laws is demonstrated, especially since the consequences of the deletion of a single word or the placement of a comma can change the entire scope of the norm, including deforming its real intention and generating consequences for society as a whole.