The Las Palmas Court has ordered the release of a prisoner sentenced in February 2011 to twelve years in prison for sexual assault with the mitigating circumstance of drug addiction, reducing his sentence to seven years as a result of the entry into force of the "Only yes is yes" Law.
The two provincial courts of the Canary Islands had already reduced the sentences of ten men convicted of sexual offenses as the punishment provided for in the legal reform was more beneficial to them, but to date this had not meant the release of any prisoner for this type of offense.
In this case, the sixth section of the Court examines the situation of a prisoner who was serving a sentence of fifteen and a half years in prison: twelve years for sexual assault, three for injuries and six months for attacking an agent of the authority.
The court recalls that the sexual crime for which this individual was convicted is punished after the reform of the Penal Code with sentences of seven to fifteen years, but also that, as occurs in this case, with a mitigating circumstance (drug addiction), the penalty would range from seven to eleven years, that is, in its lower half.
"If, according to the previous law, in view of the mitigating circumstance that exists, and that the accused did not consummate his action culminating in the sexual act, the minimum penalty was imposed on him, today there is no reason not to impose the minimum penalty, following the reasoning of the sentence," says the order that reviews the sentence.
The president of the Las Palmas Court, Emilio Moya, rapporteur of the resolution, explains it this way: "Regardless of whether we now agree or disagree with the resulting sentence of seven years, the Chamber considers that it cannot revalue the facts, their seriousness, as it would be equivalent to dictating a new sentence."
On the other hand, he adds, it only corresponds to him "to adhere to the application of the current penalty taking into account the reasoning contained in the sentence issued", so "the revision in the indicated sense is appropriate, that is: if before, punishing the crime of twelve to fifteen years, twelve was imposed, that is, the minimum penalty; today, after the new law, if the penalty ranges from seven to eleven, the minimum must also be imposed, that is, seven years."
The Court clarifies in the order that the Public Prosecutor's Office requested in this case that the revision leave the sentence at eleven years, reducing the original sentence by one year.
However, the court understands that, "if such a criterion were followed, the maximum allowed by law would be imposed on him, against the sentence issued which, we insist, has imposed the minimum allowed by law."
