특정범죄자에대한보호관찰및전자장치부착등에관한법률위반
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than eight months.
Summary of Grounds for Appeal
A. Defendant 1) At the time of committing the instant crime with mental disability, the Defendant was under the influence of alcohol and lacks the ability to discern things or make decisions. 2) The sentence sentenced by the lower court of unreasonable sentencing (eight months of imprisonment) is too unreasonable.
B. The above sentence imposed by the prosecutor by the court below is too uneasible and unfair.
2. We examine ex officio the grounds for appeal prior to the judgment ex officio.
According to the records, the defendant was sentenced to six years of imprisonment with prison labor for rape in the Incheon District Court on February 14, 2020, and the judgment became final and conclusive on July 24, 2020.
On the other hand, the crime of violation of the Act on Probation and Electronic Monitoring, etc. of Specific Offenders of this case and the crime of bodily injury from rape in relation to which judgment has become final and conclusive is concurrent crimes under the latter part of Article 37 of the Criminal Act, and should be sentenced after considering equity in the concurrent judgment pursuant to Article 39(1) of the Criminal Act and examining whether to reduce or exempt punishment. Thus, the judgment of the court below cannot be maintained as it is.
However, despite the above reasons for ex officio destruction, the defendant's assertion of mental disability is still subject to the judgment of this court, and this is examined.
3. According to the records of judgment on the defendant's claim of mental suffering, the defendant seems to have drinking alcohol at the time of the crime of this case.
However, in light of the circumstances revealed by the evidence duly adopted and examined by the lower court, the method and method of the instant crime, and the circumstances after the crime, etc., it does not seem that the Defendant had the ability to discern things or make decisions under the influence of alcohol at the time of the instant crime.
This part of the defendant's assertion is without merit.
4. Accordingly, the judgment of the court below is based on the above reasons for ex officio reversal, and Article 364 of the Criminal Procedure Act is without examining the defendant and prosecutor's allegation of unfair sentencing.