성폭력범죄의처벌등에관한특례법위반(특수강도강간등)
The defendant's appeal is dismissed.
1. Summary of grounds for appeal by the defendant;
A. At the time of committing the crime, the Defendant was under the influence of alcohol and had no or weak ability to discern things or make decisions.
B. The lower court’s sentence (five years of imprisonment, 80 hours of order, disclosure and notification for five years) imposed on the Defendant is too unreasonable.
2. Determination
A. According to the evidence on the assertion of mental and physical disorder, even though the Defendant was aware that he had drinking alcohol at the time of committing the instant crime, the Defendant committed an indecent act by force after taking the victim’s cash, etc. before and after committing the instant crime. In light of the following: (a) the Defendant took the victim as a convenience store and made the victim withdraw cash; and (b) took the victim’s cash, it is not deemed that the Defendant did not change things or did not have the ability to make a decision at the time of committing the instant crime; and (c) therefore, the Defendant’s above assertion is without merit.
B. The Defendant’s judgment on the assertion of unfair sentencing does not have favorable conditions to the Defendant, such as the fact that he/she was at the time of committing the crime and divided his/her mistake, and that he/she agreed with the victim.
However, according to Article 3(2) of the former Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (amended by Act No. 11556, Dec. 18, 2012) which applies to the instant crime, the crime of this case constitutes death penalty, life imprisonment, or imprisonment with prison labor for not less than ten years. Thus, in the instant case without any legal grounds for mitigation, five years of imprisonment with prison labor imposed by the court below falls under the lowest sentence of discretionary mitigation, other factors such as the Defendant’s age, character and conduct, environment, motive and background of the crime, method of the crime, and consequence of the crime, the circumstances after the crime, etc., the court below considered the following factors.