[강도상해등보호감호피고사건][고집1981(형특),275]
Cases which recognized the risk of recidivism for several criminal facts without previous conviction
Defendants are habitual offenders who committed crimes by moving to police officers, victims, etc. who intend to steal goods and arrest goods by drums that have been prepared in advance 23 times between the 2-month period and the 2-month period without any previous conviction or imprisonment without any previous conviction or sentence. In full view of the circumstances of the Defendants, the Defendants are likely to repeat crimes.
Article 5 (2) 2 of the Social Protection Act
Defendant 1 and one other
Prosecutor and Defendants
Busan District Court Masan Branch Court (81 Gohap62, 81 Madden10)
The judgment of the court below is reversed.
Defendants shall be punished by imprisonment for three years and six months.
One hundred and twenty-five days of detention days prior to the pronouncement of the judgment of the court below shall be included in the penalty.
The excessive one manu (No. 2) seized shall be forfeited from Defendant 1, and the excessive one manu (No. 5) from Defendant 2, respectively.
A person subject to protective custody shall be punished by seven years for each subject of protective custody.
The gist of the grounds for appeal by the prosecutor is as follows: (a) considering the interview and planning of the crime; (b) the wide-area nature of the crime committed by the Defendants, including the movement of the police officer or the victim, etc. to the scene of the crime by moving the crime into the scene of the crime, such as dradar, which was prepared in 23 times together with the key in the main 23 times; and (c) the defendant and the requester for scam (hereinafter referred to as the "defendants") committed the crime, it is necessary to keep the defendants isolated from society for a long time in order to achieve the purpose of social defense; and (d) it is necessary to keep the defendants isolated from society for a long time in light of the method, method, and circumstances after the crime, etc.; (b) the court below sentenced the defendants to five years of imprisonment with prison labor; (c) dismissal of the request for protective custody is too unfford; and (d) misunderstanding the legal principles as to the danger of recidivism; and (d) the court below's judgment did not affect the judgment.
First of all, the prosecutor's grounds of appeal on unfair sentencing and the grounds of appeal by the defendants and their defense counsel are examined.
In light of the evidence duly examined and adopted by the court below, it is sufficient to acknowledge the criminal facts of the defendants at the time of original adjudication by comparing the records, and there is no other evidence to deem that the court below erred in its fact-finding. Thus, the assertion of mistake of facts is groundless.
However, if the defendants still have no previous conviction or sentence, and considering all the circumstances shown in the records and arguments, such as the fact that they are young people beyond 20, the sentencing of the court below against the defendants is considered to be unfair because the sentencing of the court below is deemed to be too unreasonable, the defendants' appeal is reasonable, and the prosecutor's appeal is groundless.
The following grounds of appeal are examined as to the part of the prosecutor's request for custody against the Defendants.
However, according to the evidence duly examined and adopted by the court below, the defendants combined with the defendants, from December 20, 1980 to February 12, 1981, and 23 times during the period from February 12, 1981, the divers prepared by the court below, in addition to the main hacks and intrudes into another's residence, and thus thefts the objects, and the transition of the police officer or the victim, etc. to whom they intend to arrest, and it is clear that the defendants were habitual offenders who committed the crime by moving to the place of crime, such as hacks, hacks, hacks, and Masan, and the defendants' personality and behavior, intelligence and environment, or the motive, means, results, etc. of the crime. Thus, the defendants are recognized to have the risk of recidivism. Thus, the dismissal of the defendants' request for protective custody under the Social Protection Act by the court below was affected by misapprehending the legal principles of the Social Protection Act, and thus, the prosecutor's appeal is justified.
Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided after pleading.
The facts of the facts of the crime against the Defendants recognized as a member and the facts of the requirements for care and custody and the evidence related thereto are added to “criminal facts” and “the facts of the requirements for care and custody” in the column of the reasoning of the judgment below, and the summary of the evidence in the end of the 7th of the 2nd of the 2nd of the judgment of the court below, and the danger of recidivism can be recognized by the character, conduct, intelligence and environment of the Defendants, motive, means, and result of the 2nd of the 7nd of the 2nd of the 2nd of the judgment of the court below, except in addition,
Article 37, Article 35, Article 31(2) of the Criminal Act provides that the Defendants shall be punished by imprisonment with prison labor for a period of not less than 5 years, while Article 331(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be comprehensively included in Article 231, Article 30 of the Criminal Act; Articles 234, 231, and 30 of the Criminal Act shall apply to the exercise of the above investigation documents; Articles 34, 347(1), and 30 of the same Act provide that the Defendants shall be punished by imprisonment with prison labor for not less than 5 years; Articles 144(1) and 136(1) of the same Act provides that the Defendants shall be punished by imprisonment with prison labor for a period of not less than 5 years; Articles 57(1) and 136(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; and Article 17(1) of the same Act provides that the Defendants shall be punished by imprisonment with prison labor for each of the maximum term of the Act.
It is so decided as per Disposition for the above reasons.
Judges Ahn Yong-chul (Presiding Judge) (Presiding Justice)