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(영문) 서울고등법원 2016.10.13 2016노2290

특정범죄가중처벌등에관한법률위반(절도)

Text

The defendant's appeal is dismissed.

Reasons

1. The summary of the grounds for appeal: The punishment imposed by the court below on the defendant (two years of imprisonment) is too unreasonable.

2. Determination of sentencing is based on statutory penalty, discretionary determination that takes place within a reasonable and appropriate scope, taking into account the factors constituting conditions for sentencing prescribed in Article 51 of the Criminal Act.

However, considering the unique area of sentencing of the first instance court that is respected under the principle of trial priority and the principle of directness taken by our Criminal Procedure Act and the nature of the ex post facto review of the appellate court, it is reasonable to reverse the unfair judgment of the first instance court only in cases where it is deemed that the judgment of the first instance court exceeded the reasonable scope of discretion when comprehensively considering the conditions of sentencing in the course of the first instance sentencing review and the sentencing criteria, etc., or where it is deemed unfair to maintain the first instance sentencing as it is in full view of the materials newly discovered in the course of the appellate court’s sentencing review.

In the absence of such exceptional circumstances, it is desirable to respect the sentencing of the first instance court in the absence of such exceptional circumstances.

(see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015) comprehensively taking account of the aforementioned principles, the grounds for unreasonable sentencing asserted by the Defendant, and the circumstances in which the first instance court is the grounds for sentencing, the sentencing of the first instance is reasonable to respect the sentencing of the instant case within the reasonable scope of its discretion, taking into account the overall circumstances related to the sentencing of the instant case into account.

Therefore, the defendant's assertion of unfair sentencing is without merit.

3. As such, the defendant's appeal is dismissed on the ground that it is without merit.