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(영문) 부산고등법원 (창원) 2015.10.28 2015노287
성폭력범죄의처벌등에관한특례법위반(13세미만미성년자강제추행)
Text

All appeals filed by the defendant and prosecutor are dismissed.

Reasons

1. Summary of grounds for appeal;

A. The sentence imposed by the lower court (one year and six months of imprisonment, and 80 hours of order) is too unreasonable.

B. The above sentence imposed by the prosecutor by the court below is too uneasible and unfair.

2. The circumstances are favorable to the Defendant, such as the fact that the Defendant did not reach a serious indecent act or sexual intercourse, the fact that the Defendant recognized the offense by an investigative agency and seriously reflects the Defendant, the fact that the Defendant committed a crime in a state of mental disorder due to the prolonged mental delay, etc., and the fact that the Defendant did not have the same criminal records.

However, the crime of this case is committed by the Defendant by compulsion of the age of 11, and it appears that the nature of the crime is bad, and that the victim of the age appears to have suffered considerable mental suffering, such as sexual humiliation or apprehension, etc., the Defendant was unable to agree with the victim, and the damage seems not to have been recovered, and the Defendant committed the crime of this case during the period of probation.

In full view of such circumstances, various conditions of sentencing as shown in the argument of the instant case, including the Defendant’s age, criminal records, character and conduct, environment, family relationship, motive and background of the crime, circumstances after the crime, etc., and precedents on the judgment of the appellate court’s sentencing (Supreme Court en banc Decision 2015Do3260 Decided July 23, 2015). In full view of the fact that the lower court repeatedly rendered a sentence close to the lower limit of the sentencing mitigated after the mitigation of mental and physical disability, the sentence imposed by the lower court cannot be deemed to be too or less severe to the extent that it should be reversed.

Therefore, the defendant and prosecutor's argument are without merit.

3. In conclusion, the appeal filed by the defendant and the prosecutor is without merit, and all of them are dismissed under Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The Defendant asserts the above unfair sentencing as grounds for appeal that “the mental and physical disability at the time of the instant crime” was in a state of mental disorder.

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