2020No1968 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Intimidation, etc.);

Non-Obstruction, Damage to Property, Intimidation

A

Defendant

Lee Jong-young (prosecution) and a trial;

Attorney Lee Slova (Korean)

Seoul Central District Court Decision 2020Gohap737 Decided November 3, 2020

December 18, 2020

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

(a) Mental illness;

At the time of committing the instant crime, the Defendant, as a man, failed to have the ability to discern things or make decisions.

B. Unreasonable sentencing

The punishment of the court below (one year of imprisonment) is too unreasonable.

2. Determination

A. Determination as to the claim of mental disability

A mental disorder prescribed in Article 10 of the Criminal Act requires that mental disorder, such as mental illness or abnormal mental state, other than mental disorder, is deemed to lack or decrease in the ability to discern things or control action accordingly due to such mental disorder. Therefore, even if a person with a mental disorder is a person with a normal mental disorder at the time of committing the crime, such mental disorder cannot be deemed a mental disorder if he/she had the ability to discern things from one another and to control action (see, e.g., Supreme Court Decision 2012Do12689, Jan. 24, 20

The doctor P prepared a diagnosis on August 31, 2020, and the Defendant’s 166 pages of the record of evidence. However, the Defendant stated in an investigative agency as follows: “A young male scambling at the same time and scaming about to be scambling and drinking” (Evidence No. 65 pages); “The Defendant’s desire to commit the crime is two times or two times at the victim’s shop and two times and two times in order to be scambling, it would be threatening to the victim and interfere with his duties (Evidence No. 100), and it would be difficult to view that the Defendant had been aware of his or her behavior before and after the commission of the crime at the time of the police officer’s questioning that “the Defendant had his or her ability to commit the crime at the time of the crime,” and it would be difficult to view that he or she had been aware of his or her behavior before and after the commission of the crime at the time of the crime.”

Therefore, the defendant's argument of mental disability cannot be accepted.

B. Determination on the assertion of unfair sentencing

In a case where there is no change in the sentencing conditions compared to the lower court, and the sentencing of the lower court does not deviate from the reasonable scope of discretion, the appellate court need to respect the lower court’s sentencing (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 7, 2015).

The court below, under the unfavorable circumstances, determined the above punishment by taking into account (i) the following facts: (i) the Defendant, under intimidation on the grounds that he had been subject to disturbance, intimidation, interfered with the business of the Lottery Sales Store, and reported it, and (ii) the Defendant has a record of having been punished for the same kind of crime, as well as the fact that the Defendant committed the instant crime during the period of repeated crime; (iii) the victims have been punished; (iv) the Defendant, under favorable circumstances, recognized the entire instant crime; (v) the Defendant is against the recognition of the Defendant; (v) the Defendant is under a long-term temporary injury treatment; and (v) the Defendant is under medical treatment for a long time.

The lower court appears to have determined the above conditions within the reasonable scope of discretion taking into account all the circumstances related to sentencing, and the circumstances alleged by the Defendant in this court are sufficiently considered in determining the punishment. In addition, comprehensively taking account of the Defendant’s age, career, environment, family relationship, motive, background, means and consequence of the crime, circumstances after the crime, and the fact that the lower court sentenced the lowest of the sentencing guidelines among the recommended sentencing guidelines, it is difficult to view that the lower court’s punishment is too unreasonable.

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

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

the presiding judge and deputy judge

Judges Lee Jong-hwan

Judges Associate Jin