Defendant

The sentence of the lower court (ten months of imprisonment, three years of probation, community service order, and order to attend a lecture) is too unreasonable.

The Prosecutor’s sentence of the lower court is too unhued and unreasonable.

Judgment

Based on the statutory penalty, the sentencing is a discretionary judgment that takes into account the conditions of the sentencing prescribed in Article 51 of the Criminal Act within a reasonable and appropriate range.

However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness taken by our Criminal Procedure Act and the nature of the ex post facto review of the appellate court, it is reasonable to reverse the unfair judgment of the first instance court only in cases where it is deemed that the judgment of the first instance court exceeded the reasonable scope of discretion when comprehensively considering the conditions of sentencing in the course of the first instance sentencing review and the sentencing criteria, etc., or where it is deemed unfair to maintain the first instance sentencing as it is in full view of the materials newly discovered in the course of the appellate court’s sentencing review.

In the absence of such exceptional circumstances, it is desirable to respect the sentencing of the first instance court in the absence of such exceptional circumstances.

(see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). The circumstances alleged by the Defendant and the Prosecutor as an element of sentencing in the trial of the lower court were already revealed in the oral proceedings of the lower court. There was no change in the circumstances in the sentencing guidelines and the matters that are the conditions of sentencing after the lower judgment was sentenced.

In light of the various conditions of sentencing as shown in the records and pleadings of this case and the reasons for sentencing of the lower judgment, even if considering all the circumstances asserted by the Defendant and the prosecutor as the grounds for appeal, it cannot be deemed unfair since the Defendant’s punishment imposed by the lower court is too heavy or it is deemed that the Defendant exceeded the reasonable scope of discretion due to its so doing.

The defendant has already been suspended from performing official duties.