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The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for not less than three years and six months.
Sexual assault against the defendant for 80 hours.
Reasons
1. Summary of grounds for appeal;
A. At the time of the instant crime, the Defendant had a weak ability to discern things or make decisions under the influence of alcohol.
B. The sentencing sentence of the lower court (five years of imprisonment, etc.) is too unreasonable.
2. Determination
A. According to the evidence duly admitted and examined by the court below and the court below as to the assertion of mental and physical weakness, the defendant appears to have been drinking at the time of the crime of this case, but the defendant himself did not have a drinking situation because the defendant was not drinking at the investigative agency as at the time of the crime of this case.
The Defendant stated to the same effect (Evidence Nos. 92, 184) and the victim stated to the same effect (Evidence Nos. 23, 198 of the evidence record), and witness G also stated to the effect that the Defendant and the victim, etc. were not in a special situation at the time of drinking alcohol at the main place at the trial court of the party branch, and that there was no special increase in terms of the circumstances leading up to the instant crime, the method and manner of the instant crime, and the circumstances after the instant crime, etc., in light of the following: (a) the Defendant stated to the effect that there was a lack of ability to discern things or make decisions under the influence of alcohol at the time of the instant crime.
It does not appear.
B. The provisions of the Criminal Act on mitigation of mental disorder may not apply to a sexual crime identical to the instant crime in the state of mental disorder caused by drinking (Article 20 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes). Considering the unfavorable circumstances deemed to be in the determination of unfair sentencing as below, it is inappropriate to reduce the Defendant’s punishment on the ground that the instant crime was committed even if the Defendant was in a state of mental and physical weakness at the time of committing the crime, on the ground that it is not reasonable to reduce the Defendant’s punishment on
B. Sentencing;