A. At the time of the instant crime, the Defendant, who was physically and mentally weak, had weak ability to discern things or make decisions due to drinking.

B. The sentence of the lower court’s unfair sentencing (the imprisonment of six months, the suspension of the execution of two years, and the community service order of 120 hours) is too unreasonable.

2. Determination

A. According to the evidence duly adopted and examined by the court below as to the assertion of mental and physical weakness and the defendant's oral statement by the court below, it is difficult to recognize that the defendant was in a state of drinking at the time of the crime of this case, but thereby, it is difficult to recognize that the defendant was in a state of lacking the ability to discern things or make decisions.

Therefore, this part of the defendant's assertion is rejected.

B. As to the wrongful assertion of sentencing, the sentencing is based on the statutory penalty, and the discretionary determination is made within a reasonable and appropriate scope, taking into account the factors constituting the conditions for sentencing as prescribed in Article 51 of the Criminal Act.

However, considering the unique area of sentencing of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct jurisdiction taken by our criminal litigation law and the nature of the ex post facto review of the appellate court, the sentencing of sentencing of the first instance was exceeded the reasonable scope of discretion when comprehensively taking into account the factors and guidelines for sentencing specified in the first instance sentencing trial process.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

In the absence of such exceptional circumstances, it is desirable to respect the first instance sentencing determination (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). The lower court rendered the said sentence to the Defendant with due regard to the sentencing as stated in its reasoning.