Apelação Criminal Nº 0001139-08.2008.4.01.3600/mt

Penal. Processo penal. Art. 334, caput, do código penal. Nulidade do laudo Pericial. Materialidade e autoria. Presença. Princípio da insignificância. Não aplicação. Dosimetria da pena. Confissão espontânea. Súmula 231 Do egrégio superior tribunal de justiça. Sentença mantida. Apelação Desprovida. 1. Não há que se cogitar da nulidade do Laudo de Exame Merceológico de fls. 0070/0072, pois não se obteve demonstrar no acima citado laudo a existência de mácula a ensejar a sua invalidação. Com efeito, quanto a essa questão, não há que se falar em violação ao princípio do contraditório pelo fato de o Laudo em comento ter sido produzido em sede inquisitiva, uma vez que, com o oferecimento da denúncia, foi dada à defesa oportunidade para apontar eventual nulidade, não se podendo, inclusive, ignorar haver o MM. Juízo Federal a quo, na v. sentença apelada, corretamente asseverado que “(...) Pondere-se que o laudo pericial foi minucioso, detalhando os valores unitários de cada mercadoria, bem como o valor total das mesmas, sendo totalmente desnecessária a realização de uma segunda perícia. Ressalto que o valor atribuído às mercadorias é bastante significativo de modo a caracterizar a tipicidade da conduta, isto porque tal montante é muito superior à cota de isenção de produtos importados, que podem ser trazidos do exterior para o território nacional sem o pagamento de tributos“ (fl. 155). 2. Verifica-se, no caso em comento, que tanto a materialidade quanto a autoria delitiva encontram- se presentes, no caso em comento, a teor do que se depreende do Auto de Apreensão de fl. 0009; do Laudo de Exame Merceológico (Avaliação Direta) de fls. 0070/0072; do Termo de Declarações do réu perante a autoridade policial (fls. 0010/0011), bem como do seu interrogatório judicial de fls. 93/94. 3. Da análise dos autos, verifica-se que consta do Laudo de Exame Merceológico (fls. 0070/0072) que as mercadorias apreendidas foram avaliadas no valor total de R$ 70.255,00 (setenta mil, duzentos e cinquenta e cinco reais), devendo se concluir, dessa forma, que o valor do tributo devido ultrapassa o limite de dez mil reais, o que conduz à não aplicação, na espécie, do princípio da insignificância. 4. Em relação à dosimetria da pena, também não merece reforma a v. sentença apelada, não havendo que se falar em aplicação da atenuante da confissão espontânea no caso em comento, considerando que incide, na espécie, do disposto na Súmula 231, do egrégio Superior Tribunal de Justiça. 5. Sentença mantida. Apelação desprovida.

Rel. Des. I''talo Fioravanti Sabo Mendes

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