절도등
The judgment below
Part 1 of the judgment is reversed.
A person shall be punished by imprisonment with prison labor for not less than six months for a crime set forth in judgment of the defendant.
1. The summary of the grounds for appeal (unfair sentencing) of the lower court’s respective punishment (crimes No. 1 and 2 as indicated in the lower judgment: Imprisonment with prison labor for each of six months) is too unreasonable.
2. Determination
A. We examine ex officio prior to the judgment on the grounds for ex officio appeal.
The lower court deemed that a crime No. 1 (i.e., self-thief crime on March 23, 2017) in its holding constituted a repeated crime, and applied Article 35 of the Criminal Act to that, aggravated repeated crimes.
Therefore, according to the evidence duly adopted and examined by the lower court, the Defendant was sentenced to four months of imprisonment with prison labor for larceny, etc. in the Cheongju District Court’s Chungcheong Branch on September 2, 2016, and the said judgment became final and conclusive on April 13, 2017, and the Defendant was released from the custody on December 28, 2016 when he was under detention.
On December 28, 2016, the defendant was released from custody on the premise that the judgment became final and conclusive.
Even if this cannot be said to be the termination of the execution of imprisonment without prison labor, and the execution of the above imprisonment with prison labor was terminated only after the judgment on the defendant was made on April 13, 2017.
I would like to say.
Therefore, the crime No. 1 of the judgment of the court below is not a repeated crime due to the crime committed before the execution of imprisonment due to the above larceny, etc. is completed.
Nevertheless, the lower court aggravated repeated crimes against this part of the crime. In so doing, it erred by misapprehending the legal principles on repeated crimes No. 1 in the judgment of the lower court, which affected the conclusion of the judgment.
Therefore, the part of the judgment of the court below No. 1 cannot be maintained as it is.
B. Circumstances favorable to the Defendant regarding the Defendant’s allegation of unfair sentencing as to the crime No. 2 (Attempted thief on May 26, 2017) of the lower judgment’s holding (an attempted thief) are as follows.
The defendant confessions this part of the crime, and is divided.
This part of the crime was attempted.
Victim G does not want to be punished by the defendant.
Circumstances unfavorable to the defendant are as follows:
The defendant is guilty of larceny.