2018Gohap1183 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

Indecent Act by Compulsion

2018. Consolidated order to attach 2018.

A

A prosecution in the order of non-performance, and a trial in the past;

Attorney Park Jong-soo (Korean)

May 9, 2019

A defendant shall be punished by imprisonment for three years.

Disclosure and notification of information on the accused for five years.

An employment restriction shall be ordered to a child or juvenile-related institution, etc. for seven years.

The attachment of an electronic tracking device shall be ordered to the person requested to attach an electronic device for ten years.

Matters to be observed in the attached Form shall be imposed on the person requested to attach an attachment order.

Criminal facts and the facts constituting the attachment order

【Criminal Power】

On May 12, 2005, the defendant and the person against whom the attachment order was requested (hereinafter referred to as the "defendant") were sentenced to imprisonment for eight months in the Seoul Eastern District Court for the crime of indecent act by compulsion, and on July 14, 2006, the court sentenced the same court to four years in prison due to the punishment of sexual crimes, the violation of the Act on the Punishment of Victims, the Protection of Victims, and the crime of indecent act by compulsion, and completed the execution of the sentence in the former prison on May 2, 2010. On July 13, 2017, the court sentenced one year of imprisonment for the crime of intrusion upon a building and completed the execution of the sentence in the second prison of the North East East Eastern District Court on May 10, 2018, and on September 18, 2018, the judgment became final and conclusive on September 27, 2018.

【Criminal Facts】

On July 16, 2018, around 00:26, the Defendant had the mind to commit an indecent act following the female who is married at night. On July 16, 2018, the Defendant discovered the victim C (here, 36 years of age) who is waiting to be mixed and waiting for committing the crime, and followed the victim's back to the studio building located in D in the same Gu where the victim lives.

At around 00:39 on the same day, the Defendant: (a) deemed the victim to open a joint studio building and enter the building following the victim; (b) followed the victim, and subsequently, (c) committed an indecent act by force against the victim by deceiving the victim by hand from the behind the end of the studio OO-ho, where the victim was living.

Accordingly, the defendant invadedd the residence of the studio occupants, including the victim, and forced the victim to commit an indecent act.

【Fact of Grounds for Attachment】

As stated in the records of criminal records, the Defendant was sentenced to imprisonment two times with prison labor for a sexual crime and for whom ten years have not yet passed since the completion of the execution of the sentence. Even though the Defendant committed two or more sexual crimes, the instant sexual crimes are reinfilted with several methods similar to the previous sexual crimes, and the Defendant’s character and conduct, etc. are likely to recommit sexual crimes in light of the background and method of the crime, Defendant’s character and conduct, environment, etc.

Summary of Evidence

1. Statement of the accused in the first preparatory hearing record;

1. Statement of the police statement regarding C;

1. A report on internal investigation (the CCTV search, etc. around the generated area) and CCTV images;

1. Investigation report (specific as a suspect), CCTV images, and clothes and photographs at the time of committing the crime;

1. Previous convictions in the judgment: Criminal records, investigation reports (former and report attached to the judgment), three copies of the judgment, investigation reports (prior to and confirmation of repeated crimes), two copies of the judgment, the current status of personal confinement, investigation reports (verification of the final judgment), and one copy of the judgment;

1. The risk of repeating a crime as indicated in the judgment: The defendant is deemed to have a risk of repeating a sexual crime, in full view of the following circumstances, which may be recognized by the evidence as seen earlier and the written investigation prior to the claim, and the defendant’s age, character, conduct, occupation and environment, family relationship, the motive and circumstances of the crime

① On May 12, 2005, the Defendant, as indicated in the judgment below, was sentenced to eight months of imprisonment for indecent act by force at the Seoul Eastern District Court on July 14, 2006. On July 14, 2006, the same court was sentenced to four years of imprisonment due to rape, injury by force, etc. and committed the instant sexual crime within ten years of completion of the execution of the sentence in the previous prison on May 2, 2010.

② On May 14, 2013, the Defendant was issued an attachment order after the judgment of the court of first instance with the purport that the Seoul Northern District Court ordered the attachment of an electronic tracking device for five years on the ground that there is a risk of repeating a sexual crime in connection with the sexual crime described in the foregoing paragraph (1). Nevertheless, the Defendant, including the instant crime thereafter, was punished by imprisonment with prison labor for eight months on July 16, 2014, for the crime of violation of the Act on the Punishment, etc. of Sexual Crimes at the Seoul Northern District Court on July 16, 2014, and was punished by imprisonment with prison labor for one year on July 13, 2017, and one year on September 13, 2017, and six months on September 18, 2018 against an unspecified person, including one who is sentenced to imprisonment with prison labor for public performance and for six months on September

③ As a result of the evaluation of the risk of sex offenders in Korea (KSOAS), the risk of sex offenders was assessed at the level of ‘Intermediate (7-12 points)' as a total point of 12 points.

Application of Statutes

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

Article 3(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, Articles 319(1) and 298 of the Criminal Act.

1. Aggravation for repeated crimes;

The proviso of Article 35 and the proviso of Article 42 of the Criminal Act (the crime of intrusion upon a building has been committed)

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act and the crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes under the former part of Article 39(1) and

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Subject to Failure to complete a program (the defendant is subject to an order to complete a program under Article 9-2 (1) 4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders, and such order to complete a program is not

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;

Article 3 of the Addenda to the Act on the Protection of Children and Juveniles against Sexual Abuse (Act No. 15352, Jan. 16, 2018); 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 5 (1) 1 and 3, Article 9 (1) 1, and Article 9-2 (1) 1, 3, and 4 of the Act on Probation and Electronic Monitoring, Etc. of Specific Criminal Offenders subject to the issuance of an order to attach an electronic tracking device and matters to be observed;

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for two years and six months to fifteen years; and

2. Non-application of the sentencing criteria;

Since the latter concurrent crimes of Article 37 of the Criminal Code are established, the sentencing criteria shall not apply.

3. Determination of sentence: Three years of imprisonment;

The crime of this case is committed by the victim who returned home at night and committed an indecent act by the victim, and the nature of the crime is bad. The defendant committed the crime of this case again despite a number of sexual assault crimes records including previous criminal records, even though he had been sentenced to punishment. The victim complained of uneasiness due to the crime of this case and wanted to punish the defendant.

However, the fact that the Defendant’s use of force or indecent act against the victim is very important; the Defendant was punished as a crime of violating the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Indecent Act by force by force) with a high statutory penalty by entering the victim’s joint co-fluence of the room building; however, it is not a crime committed within the victim’s residence but a crime committed within the victim’s residence; the equity in the case where the Defendant was punished as the crime of public performance and obscenity which became final and conclusive in the judgment should be considered as favorable circumstances to the Defendant; the Defendant’s age, character, character, environment, family relationship, motive, means and consequence of the crime; and the punishment as set forth in the instant argument shall be determined by the order

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

Judges and Judges of the Court

Judge Song In-bok

Judges Park Tae-soo

1) Although it does not constitute a sexual crime, the crime was committed by a woman, 'a woman', who entered a female toilet, and gets into the said female toilet, thereby infringing on the structure three times by committing the act of self-defense.

A person shall be appointed.