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(영문) 광주고등법원 (전주) 2016.11.01 2016노143

성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강간)등

Text

Defendant

In addition, all appeals filed by the respondent for attachment order and the prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The punishment of the lower court (five years of imprisonment, 100 hours of completion of sexual assault treatment programs, 100 hours of disclosure of personal information and 10 years of notification) against the Defendant and the person subject to a request to attach an attachment order (hereinafter “Defendant”) is too unreasonable.

B. Prosecutor 1) The lower judgment dismissing the Defendant’s request for attachment order even if the Defendant’s request for attachment order is recognized as having a risk of recidivism against sexual crimes, is unreasonable.

2. In light of the fact that the sentencing on the part of the defendant's case is a discretionary judgment based on the statutory penalty, taking into account the factors constituting the conditions for sentencing under Article 51 of the Criminal Act within a reasonable and appropriate scope, and the fact that the court of first instance does not change the conditions of sentencing compared to the court of first instance, and the sentencing of the court of first instance does not deviate from the reasonable scope of discretion, it is reasonable to respect them. Although the sentence of the court of first instance falls within the reasonable scope of discretion, it is desirable to reverse the judgment of the court of first instance just because it is somewhat different from the opinion of the appellate court, and to refrain from imposing a sentence that does not differ

(See Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). Regarding the instant case, the lower court determined the sentence against the Defendant by taking into account all the conditions of sentencing favorable or unfavorable to the Defendant, as well as other circumstances prescribed in Article 51 of the Criminal Act, and there is no special change in the sentencing conditions compared to the lower court’s judgment, and otherwise, it is not recognized that the lower court’s sentencing is too heavy or unhued, thereby exceeding the reasonable scope of discretion.

The defendant's defense counsel asserts that the defendant was not in a normal mental state at the time of committing the crime of this case, but all the circumstances revealed in the records, such as the background, means and methods of the crime of this case, and the circumstances after the crime.