특수강도미수등
All judgment of the court below shall be reversed.
Defendant shall be punished by imprisonment for not less than two years and six months.
Sexual assault, 40 hours against the defendant.
1. Summary of grounds for appeal;
A. 1) On the first lower judgment, the Defendant was suffering from mental illness at the time of committing the crime, and the Defendant was in a state of mental and physical disability. 2) The lower court’s imprisonment (two years and six months of imprisonment) is too unreasonable.
B. Unreasonable sentencing on the second judgment: The lower court’s imprisonment (six months of imprisonment) is too unreasonable.
2. The first and second instances of ex officio judgment rendered a judgment of conviction against the defendant after completing a separate hearing, and the defendant appealed both the judgment of the court below, and this court decided to hold the appeal cases together.
Since the crime of the first and second original judgment against the defendant is a concurrent crime under the former part of Article 37 of the Criminal Act, a single sentence should be sentenced in accordance with Article 38(1) of the Criminal Act.
Therefore, the first and second original judgments are no longer maintained in this respect.
However, despite the above reasons for ex officio destruction, the defendant's claim of mental disability against the first judgment of the court of first instance is still subject to the judgment of this court, and this is examined below.
3. In light of the background, method, and method of the instant crime and the Defendant’s behavior before and after the instant crime, etc. acknowledged in accordance with the evidence duly adopted and examined by the first instance court and the appellate court, it is not deemed that the Defendant had lost or weak ability to discern things or make decisions at the time of the instant crime.
In the first instance judgment, the defendant or defense counsel did not err by misapprehending the facts or by misapprehending the legal principles, thereby exceeding the state of mental disability of the defendant.
4. The judgment of the court below is reversed in accordance with Article 364(2) of the Criminal Procedure Act, without examining the defendant's assertion of unfair sentencing, since the above reasons for reversal of the judgment of the court below are the above reasons.