Sei sulla pagina 1di 3

TITLE V.

CRIMES RELATIVE TO OPIUM AND OTHER robbery or theft is considered a “fence” and incurs criminal liability
PROHIBITED DRUGS for “fencing” under said decree. The penalty is higher than that of a
mere accessory to the crime of robbery or theft.

Likewise, the participation of one who conceals the effects of


Articles 190, 191, 192, 193 and194 of the Revised Penal Code robbery or theft gives rise to criminal liability for “fencing”, not
have been repealed by Republic Act No. 6425 (The Dangerous simply of an accessory under paragraph 2 of Article 19 of the Code.
Drugs Act of 1972), as amended by Presidential Decree No. 1683 Mere possession of any article of value which has been the subject
and further amended by Republic Act No. 7659. of robbery or theft brings about the presumption of “fencing”.

Presidential Decree No. 1612 has, therefore, modified Article 19 of


the Revised Penal Code.
Acts punished by the Republic Act No. 6425

Questions & Answers


1. Importation of prohibited drugs;
1. May one who profited out of the proceeds of estafa or
2. Sale, administration, delivery, distribution and transportation
malversation be prosecuted underthe Anti-Fencing Law?
of prohibited drugs;

3. Maintenance of a den, dive or resort for prohibited drug users;


No. There is only a fence when the crime is theft or robbery. If the
4. Being employees and visitors of prohibited drug den;
crime is embezzlement or estafa, still an accessory to the crime of
5. Manufacture of prohibited drugs; estafa, not a fence.

6. Possession or use of prohibited drugs;

7. Cultivation of plants which are sources of prohibited drugs; 2. If principal committed robbery by snatching a wristwatch and
gave it to his wife to sell, is the wife criminally liable? Can she be
8. Failure to comply with the provisions of the Act relative to the prosecuted as an accessory and as a fence?
keeping of records of prescriptions, sales, purchases,
acquisitions and/or deliveries of prohibited drugs;

9. Unlawful prescription of prohibited drugs; The liability of the wife is based on her assisting the principal to
profit and that act is punishable as fencing. She will no longer be
10. Unnecessary prescription of prohibited drugs; liable as an accessory to the crime of robbery.

11. Possession of opium pipe and other paraphernalia for


prohibited drugs;
In both laws, Presidential Decree No. 1612 and the Revised Penal
12. Unauthorized importation, manufacture, sale administration, Code, the same act is the basis of liability and you cannot punish a
dispensation, delivery, transportation, distribution, person twice for the same act as that would go against double
possession or use of regulated drugs, failure to comply with jeopardy.
the provisions of the Act relative to the keeping of records of
prescriptions, sales, purchases, acquisitions and/or
deliveries, unlawful prescription, unnecessary prescription of
Indeterminate Sentence Law (ISLAW): How to
regulated drugs, and maintenance of a den, dive or resort for
determine maximum and minimum penalties
regulated drug users.
(Act no 4103 as amended)

The Indeterminate Sentence Law is mandatory in all cases,


EXCEPT if the accused will fall in any of the following exceptions:

ACCESSORY AS A FENCE 1. if sentenced with a penalty of death or life imprisonment


2. if convicted of treason, conspiracy, proposal to commit treason
The Revised Penal Code defines what manners of participation 3. if convicted of misprision of treason, sedition, rebellion or
shall render an offender liable as an accessory. Among the espionage
enumeration is “by profiting themselves or by assisting the offender 4. if convicted of piracy
to profit by the effects of the crime”. So the accessory shall be liable 5. if the offender is a habitual delinquent
for the same felony committed by the principal. However, where the 6. those who escaped from prison or evaded sentence
7. those who violated the terms of conditional pardon of the chief
crime committed by the principal was robbery or theft, such
executive
participation of an accessory brings about criminal liability under 8. where the maximum term of imprisonment does not exceed 1
Presidential Decree No. 1612 (Anti-Fencing Law). One who year (important!)
knowingly profits or assists the principal to profit by the effects of 9. if convicted by final judgement at the time of the effectivity of Act
robbery or theft is not just an accessory to the crime, but principally No. 4103
liable for fencing under Presidential Decree No. 1612. 10. if penalized with suspension or distierro

If accused fall in any of the foregoing exceptions. DO NOT APPLY


ISLAW!
Any person who, with intent to gain, acquires and/or sell,
possesses, keeps or in any manner deals with any article of value ISLAW applies to offenses punished by Special Law and Revised
which he knows or should be known to him to be the proceeds of Penal Code.
proven. What is now the maximum penalty?
Why is ISLAW mandatory? It would still be reclusion temporal, but it shall be placed in the
maximum period because of the presence of 1 aggravating
In the application of the Indeterminate Sentence Law the judge will circumstance.
get the maximum penalty and likewise the minimum penalty. If the
accused was already able to serve the minimum term of his How about the minimum penalty?
indeterminate sentence and upon the approval of the Board, the
It would still be 1 degree lower from reclusion temporal, which is
accused now becomes eligible for parole. ISLAW is favorable to
prision mayor. In which period? It shall be discretionary upon the
the accused.
court.

If the accused was granted parole and violated some (More examples)
conditions of the parole, What will happen?
1 mitigating but NO aggravating
A warrant of arrest will be issued by the court and the accused will maximum penalty: reclusion temporal in the minimum period
be made to serve the rest of the remaining or unexpired portion of minimum penalty: prision mayor in any period
his sentence. (But in probation you go back to number 1, serving of
sentence will be from the beginning) 2 mitigating, NO aggravating (privileged mitigating)
maximum penalty: prision mayor in the medium period
minimum penalty: prision correctional any period
Application of ISLAW:
The preceding example is an exception to the rule. If there is a
How to get maximum and minimum penalty in Special Law: privileged mitigating circumstance, we take it into account first in
1. The maximum penalty should NOT exceed the maximum order to obtain the proper maximum penalty. Then, from that
provided for by that law. maximum penalty, we obtain the proper minimum penalty by
2. The minimum penalty should NOT fall below the minimum getting the penalty 1 degree lower. Same rule applies as to the
provided by the law. period of the minimum penalty.

How to get maximum and minimum penalty in Revised Penal Code:


Example: In the crime of homicide, under the Revised Penal Code, Remember: It will never become a privileged mitigating
the offender is sentenced to reclusion temporal. circumstance if there is an aggravating circumstance present. 8
mitigating and 1 aggravating will never become privileged
The maximum penalty under the Indeterminate Sentence Law is mitigating circumstance.
reclusion temporal. But reclusion temporal is a divisible penalty
consisting of maximum, medium and minimum periods. Which 3 mitigating, NO aggravating
period will we place the maximum term of the Indeterminate maximum penalty: prision mayor in the minimum period
Sentence? minimum penalty: prision correctional any period

In the preceding example, there are 3 mitigating circumstance


Guide for determining the maximum penalty: present and no aggravating circumstance. The first two mitigating
1. Determine the entire range of the penalty circumstance shall be a privileged mitigating circumstance. Thus,
2. Determine if there is mitigating or aggravating circumstance the penalty will be reduced by 1 degree from reclusion temporal to
prision mayor. The 3rd mitigating circumstance shall place the
Which period will the maximum penalty be placed? penalty in the minimum period.

In pursuant to art 64, when there is no mitigating and no


aggravating circumstance, it should be placed at the medium 4 mitigating, NO aggravating
period. Thus, the maximum penalty for the example above is maximum penalty: prision correctional in the medium period (2
reclusion temporal in the medium period. privileged circumstance. Thus we lower by 2 degrees)
minimum penalty: arresto mayor any period
What is the minimum penalty now?
5 mitigating, NO aggravating
In getting the minimum penalty, the rule is to simply get the penalty maximum penalty: prision correctional in the minimum period
one (1) degree lower from the maximum penalty without taking into minimum penalty: arresto mayor any period
account the mitigating and aggravating circumstance. Thus, the
penalty one degree lower from reclusion temporal, without taking At most we can only lower by 2 degrees. Thus, if there are 6
into account any mitigating or aggravating circumstance, is prision mitigating circumstance and NO aggravating:
mayor. Prision mayor is now the minimum penalty for our example. maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

Important: If your maximum penalty is wrong, it follows that the How is Indeterminate Sentence Law applied in complex
minimum penalty will also be wrong. crimes (Article 48)?
A complex crime is punished by the most serious offense and shall
Again, prision mayor is a divisible penalty. Which period can it be be imposed in its maximum period.
placed?
Under the Indeterminate Sentence Law, it would depend upon the Example: Estafa through falsification of public documents.
discretion of the court on which period to place it. Thus, the
minimum penalty is prision mayor in any of its period.
Under the Revised Penal Code, falsification of public documents
(Article 171) is a more serious offense punished by prision mayor
Factors that could affect the imposition of minimum penalty: than estafa (Article 315), punished only by prision correctional.
1. Age
2. Conduct during trial
3. Mental or physical condition
Thus, applying the Indeterminate Sentence Law, the maximum
Suppose in the example above, 1 aggravating circumstance was penalty for estafa through falsification of public documents shall be
prision mayor in the maximum period. Minimum penalty shall be
prision correctional, any period.

Suppose there was 1 mitigating circumstance proven. Maximum


penalty would still be prision mayor in the maximum period. In
pursuant to Article 48, even if there is a mitigating circumstance
present, it should still be imposed at the maximum period.

How about if there are 2 mitigating circumstance and no


aggravating?
The rule is, if it is a privileged mitigating circumstance, we lower by
the penalty by one degree but still place it at the maximum period.
Thus, the maximum penalty shall be prision correctional in the
maximum period.

4 mitigating, NO aggravating
maximum penalty: arresto mayor in its maximum period