특정범죄자에대한보호관찰및전자장치부착등에관한법률위반등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not more than ten months and by a fine not exceeding 3,00,000 won.
The above fine shall be imposed on the defendant.
1. Summary of grounds for appeal;
A. At the time of each of the instant crimes, the Defendant was in a state of weak ability to discern things or make decisions under the influence of alcohol.
B. The sentence imposed by the lower court (one year and six months of imprisonment) is too unreasonable.
2. Determination
A. The lower court, ex officio, applied Article 39(1) of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders with respect to the facts constituting the crime (violation of the code of practice) in Article 1-b of the judgment below.
However, Article 39(3) of the same Act shall apply to the above crime since the defendant violated an order of restriction on outing concurrently with the attachment of an electronic tracking device (Article 9-2(1)1 of the same Act) without justifiable grounds.
(In this regard, the judgment of the court below on this part is impossible to maintain the judgment of the court below, because there is no concern that the above applicable provisions of law are identical even if they are modified ex officio, and there is no concern about actual disadvantage in the exercise of the defendant's right of defense in light of the seriousness of statutory punishment.
However, despite the above reasons for ex officio reversal, the defendant's assertion of mental disability is still subject to the court's judgment, and this is examined below.
B. In light of the following: (a) determination as to the claim of mental suffering from mental illness; (b) the background leading up to each of the instant crimes; (c) the means and methods of committing the crime; and (d) the circumstances after committing the crime, etc., it is not deemed that the Defendant had the ability to discern things or make decisions at the time of each of the instant crimes.
3. Accordingly, 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, on the ground of the above ex officio reversal.