Criminal law, Sanctions treatment, Calculation, Cassation, Fifth criminal section, Judgment n. 44676 of 11/24/2022

Passim

The method followed by the Territorial Court to calculate the penalty is in open contrast to the teaching of this Regulatory Court, according to which, in order to determine the penalty for an attempted aggravated offence, it is necessary:

a) preliminarily identify the statutory framework relating to the case in question, taking into account all the aggravating circumstances considered in the specific case;

b) determine, in relation to this, the statutory framework of the attempted detailed crime, applying art. 56 code pen.;

c) commensurate, within this last statutory framework, the penalty to be imposed concretely, specifying the base penalty and the increases applied for each aggravating circumstance (Sect. 1, n. 7557 of 02/25/2021; Section 4, n. 1611 of 06/21/1996).

In the case in question, however, the Territorial Court first calculated the penalty for the attempted crime, then proceeding to increase it for the aggravating circumstances.

And with reference to the increase of the penalty for recidivism, the violation of the provision pursuant to art. 63, paragraph 4, of the Italian Code pen., given that the calculation of the sentence did not consider that the recidivism is an aggravating circumstance with a special effect, with consequent application of the mitigating criterion referred to in the fourth paragraph of the art. 63 code pen.

Source Supreme Court of Cassation