(영문) 서울중앙지방법원 2019.3.28. 선고 2019고합72 판결

A person subject to an order to attach an electronic device shall be placed on probation for three years, and matters to be observed in the attached Form shall be imposed.

The request for the attachment order of this case is dismissed.

Reasons

Criminal facts and facts constituting the probation order

【Criminal Power】

On January 31, 2012, the defendant and the respondent for an attachment order (hereinafter referred to as the "defendant") were sentenced to a fine of three million won for quasi-indecent act by force in order to commit quasi-indecent act by force, and on August 23, 2013, the Seoul Western District Court sentenced the defendant to six months of imprisonment for quasi-indecent act by force on September 11, 2013 and completed the execution of the sentence at the Seoul Southern Southern Southern District Court.

【Criminal Facts】

On September 12, 2018, the Defendant discovered that the victim B (hereinafter referred to as the "victim B") was seated on the side of the rear seat of the victim, seated on the rear seat of the victim, and locked the victim by taking advantage of the victim's refusal to resist the situation where the victim was unable to resist, such as holding the victim's seat on his/her upper chest, and setting him/her up his/her own floor on his/her chest on his/her right chest, at intervals of 20:00.

[Fact of Grounds for Probation Orders]

Even though the Defendant had been sentenced to a fine and imprisonment for a sexual crime as stated in the judgment of the court, he again committed a sexual crime. The instant crime and the Defendant’s sexual crime are quasi-indecent acts committed against an unspecified female, who had been committed within the public place, and in light of the object of the crime, the circumstances and methods of the crime, motive of the crime, character and conduct of the Defendant, environment, etc., the Defendant is likely to recommit a sexual crime.

Summary of Evidence

1. Defendant's legal statement;

1. The written statement made by the police against B;

1. A report on investigation;

1. On-site photographs of buses;

1. Previous convictions in judgment: Criminal history records, investigation reports, investigation reports (information on the same criminal suspect's records), and investigation reports (information on the suspect's ended date of execution of punishment);

1. The risk of recidivism of a sexual crime as indicated in the judgment: The following circumstances recognized by the above evidence and a prior investigation and reply to the request are acknowledged as having the risk of recommitting a sexual crime, taking into account the character and conduct of the defendant, the environment, the objects of the crime, the circumstances and methods of the crime

(1) In addition to the records of the crime indicated in the judgment, the Defendant again committed the instant crime, which is a sexual crime, despite the fact that the Seoul Central District Court was sentenced to a fine of one million won by violating the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Acts at Open Place).

(2) Sexual crimes, etc. committed by the Defendant and the instant crimes are all the crimes committed by the Defendant, and they committed an indecent act by fasting the body of the Defendant or exposing the chests, etc. on the body of an unspecified female who was locked at a public place, such as PC, so set soup or high speed bus, etc., and are similar to those committed.

③ As a result of the evaluation of the risk of sexual offenders in Korea (KSOAS) and the PCL-R against the Defendant, the risk of the Defendant’s comprehensive recidivism was assessed at the level of “serious,” but it was found that the Defendant was somewhat short of the responsibility due to the risk factors of recidivism, and there was a dynamic tendency to the Defendant. The investigator who conducted the pre-examination of the Defendant’s claim against the Defendant, has risk factors such as sex crimes against the Defendant, and the Defendant was faced with difficulties in adjusting labor and shocking, and thus, the risk of recidivism of sexual crimes was presented to the effect that the probation, etc. is in need of considerable consideration.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 299 and 298 of the Criminal Act

1. An order for disclosure and notification;

Articles 47(1) and 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, the main sentence of Article 49(1) and the main sentence of Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. An employment restriction order;

The main sentence of Article 56(1) of the former Act on the Protection of Children and Juveniles against Sexual Abuse (Amended by Act No. 15452, Mar. 13, 2018)

1. Article 21-3 (2) and (1), Article 21-2 subparagraph 1, Article 21-4, and Article 9-2 (1) 3 and 4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders subject to the probation order and matters to be observed (where a request for an attachment order is dismissed, and the probation order is deemed necessary, the probation order shall be issued ex officio);

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with Non-compliance Order (this shall not apply to cases where an order is issued to a defendant on probation and completion of sexual assault treatment programs is imposed due to the matters to be observed, and

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for one month to ten years; and

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Type] The first type of indecent act by compulsion (general indecent act by compulsion) on the general standards of sexual crimes (subject to 13 years of age or older)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 6 months of imprisonment to 2 years

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

○ Unfavorable Circumstances: The instant crime was committed in an indecent act against a victim, who was locked in an express bus seat in a state of secret, and the nature of the instant crime is not easy in light of the object, location, circumstances, and method of the crime.

A defendant has been subject to criminal punishment on three occasions due to sexual crimes, including punishment for a crime of quasi-indecent act by compulsion. The victim appears to have been subject to considerable mental impulse due to the crime of this case, and is trying to punish the defendant.

The circumstances favorable to ○: The Defendant recognized and reflected the instant crime. The Defendant appears to have been trying to prevent recidivism and to correct character and behavior by hearing the education lectures on the prevention of sexual assault after the instant crime.

Where a conviction becomes final and conclusive on the criminal facts in the judgment that are subject to registration and submission of personal information, the accused is a person subject to registration of personal information in accordance with Article 42 (1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and is obligated to submit personal information to the competent agency in accordance with Article

Judgment on the request for attachment order

1. Summary of the request for attachment order;

The Defendant, who was sentenced to imprisonment with prison labor for committing a sexual crime, committed a sexual crime again within ten years after the completion of the execution of the sentence, and committed a sexual crime on two or more occasions, and thus, is likely to recommit a sexual crime. As such, the Defendant requests an order to attach an electronic tracking device pursuant to Article 5(1)1 and 3 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, to attach an electronic tracking device.

2. Determination

A. The risk of recidivism of a sexual crime under Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that the possibility of recidivism is insufficient solely on the basis of the possibility of recidivism, and that there is a considerable probability that the person subject to the request to attach an attachment order may injure the legal peace by again committing a sexual crime in the future. The existence of the risk of recidivism of a sexual crime ought to be objectively determined by comprehensively assessing various circumstances, including the occupation and environment of the person subject to the request to attach an attachment order, the criminal conduct prior to the crime, the motive and means of the crime, the circumstances after the crime, and the outlines (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 2010)

In addition, since an order to attach an electronic tracking device under the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, the degree of restriction on physical freedom and freedom of privacy, etc. exceeds that of the probation order after the execution of the sentence, the risk of recidivism should be more strict than that of the probation order in order to attach an electronic tracking device.

B. The following circumstances acknowledged by the evidence duly adopted and examined by this court: ① The risk assessment level of recidivism was assessed at 10 points in total as a result of the evaluation of the risk of sexual offenders against the Defendant (KSSAS), and the total of 29 points and 13 points in total as a result of the evaluation (PC-R), the total of 15 points in the evaluation of the mental disorder and the risk of recidivism due to the qualitative character of the mental disorder are assessed at the intermediate level (the maximum of 40 points and 25 points in total) (the maximum of 40 points and 25 points), ② the Defendant’s sentence of imprisonment to the Defendant, personal information, personal information disclosure and notification order to the Defendant, restrictions on employment and probation order to the child and juvenile-related institutions are deemed to have considerable effect on the prevention of recidivism of the Defendant’s sexual assault, and it is difficult to readily conclude that the Defendant’s sexual assault act was committed to the extent that the Defendant’s body, including the Defendant’s personality and behavior, cannot be seen as having been committed in the future.

C. Therefore, the request for the attachment order of this case is without merit, and it is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders.

Judges

The presiding judge, judges and assistant judges

Judges Doese

Judges Park Young-chul

Note tin

1) Article 2 Subparag. 2 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders lists "sexual assault crimes" to which the said Act applies. B. Although Article 11 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes does not include the crimes under this item, the content and methods of the crimes are similar to the Defendant's other criminal records and the instant criminal records, and thus, refer to the data that determines the risk of recidivism by the Defendant.

2) The prosecutor stated that the Defendant was sentenced to a fine due to a violation of the Act on the Punishment, etc. of Sexual Crimes (Indecent Acts at Open Place). However, as seen earlier, Article 2 Subparag. 2(b) of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders does not include a crime under Article 11 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Indecent Acts in Depopulated Place). Thus, the Defendant’s criminal records do not include “the record of committing sexual crimes” under Article 5(1)3 of the said Act more than twice.