The defendant's appeal as to the remainder other than the confiscated part of the judgment of the court below is dismissed.

A. Defendant

The sentence of the lower court (the first, the second, the fourth, the second, the second, the second, the second, the second, the third, the third, the fourth, the fourth (A: imprisonment: 4 months, the confiscation) is too unreasonable.

(b) Prosecutors;

All articles confiscated by the court below from the defendant are already discarded and remain at the investigation stage.

2. Determination

A. Determination of the Prosecutor’s assertion

Where seized articles remain or seized articles have been already destroyed pursuant to Articles 130(2) and (3) and 219 of the Criminal Procedure Act as at the time judgment was pronounced, a court may not pronounce confiscation of such articles (see, e.g., Supreme Court Decision 2009Do6982, Jan. 28, 2010).

According to the records, each of the items ordered to be confiscated may be recognized as having already been disposed of prior to the judgment of the court below (see each seizure list submitted as reference materials), so it shall not be confiscated.

Nevertheless, the court below ordered the confiscation of each of the above things has erred by misapprehending the legal principles as to confiscation.

B. Judgment on the defendant's assertion

In a case where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

As stated in its holding, the lower court determined the punishment by comprehensively taking into account the circumstances favorable to the Defendant and the circumstances unfavorable to the Defendant, and also seems to have been reflected in the sentencing process of the lower court. There is no special change in circumstances that make it possible for the lower court to change the sentence in the trial.

The defendant inhales hallucinogenic substances in the course of the suspension of execution due to the same crime, and inhales them again after childbirth even while the execution of punishment was suspended for childbirth in prison after the revocation of the suspension of execution. In light of the defendant's behavior, the degree of addiction to hallucinogenic substances of the defendant seems to be very serious, and it is more appropriate to allow the defendant to have time of cut off and reflect hallucinogenic substances through severe punishment rather than taking the defendant again.

Considering the Defendant’s age, occupation, character and conduct, environment, family relationship, health status, criminal records and contents thereof in an investigation agency and court, attitude at an investigation agency and court, nature of a crime, motive, means and consequence of a crime, addiction degree, circumstances after a crime, etc., as well as various circumstances constituting the conditions of sentencing as shown in the oral argument at the original court and the party hearing, the lower court’s punishment against the Defendant is too unreasonable as it goes beyond the reasonable scope of its discretion. Accordingly, the Defendant’s assertion is groundless.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the part concerning the confiscation among the judgment of the court below which accepted it is reversed (it is sufficient to reverse the part concerning the confiscation among the judgment of the court below since the defendant does not separately order the confiscation) and the defendant's appeal as to the remaining part except the part concerning the confiscation is dismissed. It is so decided as per Disposition.

Judges Jeong-jin

judge-in-law