Embargos Infringentes E De Nulidade Nº 0005890-22.2010.4.03.6119/sp

Penal - tráfico internacional de drogas - 1.213,7g (mil duzentos e treze gramas e sete decigramas) de cocaína - transporte por “mula“ do tráfico - dosimetria da pena - reconhecimento da causa de diminuição prevista pelo artigo 33, §4º, da lei n.º 11.343/06, no patamar de 1/6 (um sexto) - pena definitiva proporcional e adequada ao caso dos autos - provimento dos embargos infringentes. 1. Cinge-se a controvérsia posta nos embargos ao exame da dosimetria da pena, mais precisamente sobre a aplicação da causa de diminuição de pena prevista pelo §4º do artigo 33 da Lei n.º 11.343/06. 2. No que diz respeito à causa de diminuição em análise, não compartilho do entendimento no sentido de que referida causa não se aplicaria às chamadas “mulas“. Tenho por certa a interpretação casuística a ser dada no trato da matéria, tendo cada situação suas peculiaridades, que merecem reflexão e sopesamento quando da dosimetria da pena. 3. Nesse passo, compartilho do entendimento do voto vencido no sentido de que, em tese, a “mula“ não integra, em caráter estável e permanente, a organização criminosa, podendo ocorrer caso único e isolado de envolvimento com o tráfico. 4. No caso dos autos, o réu é primário, não ostenta maus antecedentes e não há prova de que se dedique a atividades ilícitas, nem elementos para concluir que integre organização criminosa, apesar de encarregado do transporte da droga, razão pela qual deve ser aplicada a minorante prevista pelo artigo 33, §4º, da Lei n.º 11.343/06, porém no patamar mínimo legal de 1/6 (um sexto), resultando a apenação, a meu ver, em reprimenda justa, proporcional e adequada aos fins da pena. 5. Embargos infringentes providos.

Rel. Des. Luiz Stefanini

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