(영문) 서울중앙지방법원 2018.8.17. 선고 2018고합159 판결

A seized kitchen shall be confiscated by the accused (No. 1). A person who applies for medical treatment and custody shall be punished by medical treatment and custody.

Reasons

Criminal facts and the facts constituting the cause of medical treatment and custody / 2018 Gohap159 / [Criminal Facts] Defendant and the requester for medical treatment and custody (hereinafter referred to as “Defendant”) committed each of the following crimes under the influence of having weak mental capacity to discern things or make decisions due to the de facto symptoms of mental illness, such as damage, scopic accidents, scopic accidents, tobacco completion, and damage to real proof. The Defendant was willing to commit a crime of taking property by threateningly threatening the married women in the vicinity of his/her residence in Dongjak-gu Seoul Metropolitan Government, with no special occupation, with a view to falling short of drinking money at night in and near his/her residence at night:

1. Attempts to robbery;

At around 22:50 on February 1, 2018, the Defendant discovered the victim D (hereinafter referred to as "victim" in this paragraph) who returned home in the vicinity of the entrance of the first floor of Dongjak-gu Seoul Metropolitan Government, Seoul (hereinafter referred to as "victim" in this paragraph) and tried to have the victim take money and valuables in the bank owned by the victim by hand, and let the victim take the victim back by hand, and forced to take the bank back by force, but the victim failed to take the wind at the wind that gets sound and resisted.

2. Attempted murder;

On February 1, 2018, at around 23:20, the Defendant discovered that the Victim F (hereinafter referred to as "victim" in this paragraph) returned home in the vicinity of the Dongjak-gu Seoul Metropolitan Government E-Ba, and had money and valuables in possession of the Victim by killing the Victim, then attempted to murder the Victim's vessel with a knife knife, which is a deadly weapon (17 cm in length, No. 1) possessed by the Defendant, and attempted to kill the Victim five times with a knife (17 cm in length, No. 1). However, the Defendant attempted to murder with the Defendant's knife as the knife knife of the feed cited by the Victim.

3. Attempted special robbery.

On February 1, 2018, at around 23:35, the Defendant discovered the victim I (hereinafter referred to as "victim" in this paragraph) who returned alone in front of the H convenience point located in Dongjak-gu Seoul Metropolitan Government, and entered the convenience store depending on the victim, and sought to deduct the money and valuables possessed by the victim by threateninging him/her with the knife, which is a deadly weapon, from the victim's item. However, the Defendant got back or attempted to commit so.

2018 Gohap3 [Facts of Grounds for Medical Treatment and Custody]

The defendant has committed the same crime as the criminal facts stated in the judgment that constitutes imprisonment without prison labor or a heavier punishment in a state of mental disorder caused by a mental disorder, such as damage network, ethic accident, ethic accident, annual ethic ethic ethic ethic ethic ethic ethic ethic ethic disease

Summary of Evidence

1. Partial statement of the defendant;

1. Examination protocol of the accused by prosecution;

1. Statement of the police officer to I;

1. Each statement of D and F;

1. Notice of the result of a mental appraisal and a written mental appraisal attached thereto;

1. Investigation report (verification of the details of damage inflicted on the victim, whether the victim has injured, whether the person has been punished, etc.);

1. Reports on internal investigation (the details of the harm inflicted on the victim, whether the victim was injured, whether a punishment has been imposed, etc.), reports on internal investigation (the attachment of a victim D's radioactive report), photographs attached thereto, internal investigation reports (the attachment of a photograph of the victim F's lives), and photographs and photographs attached thereto and reports on internal investigation (the re-verification of damage inflicted on the F

1. Seizure records;

1. Photographss of seized articles, CCTV images of H convenience points, CCTV images of convenience stores, photographs to capture CCTV images, on-site photographs; 1. Necessity of treatment as indicated in the judgment, and risk of recidivism;

In full view of the following circumstances recognized by the evidence mentioned above, it is determined that the defendant needs to receive medical treatment at a medical treatment and custody facility and there is a risk of re-offending if he/she fails to receive appropriate medical treatment.

① Before committing the crime indicated in the facts constituting the crime in the judgment of the Defendant (hereinafter referred to as “instant crime”), the Defendant had had had had had had had had had had had had had had been hospitalized at a mental hospital several times due to the on-site illness, and had committed the instant crime after having been discharged from the hospital around September 2017.

② In light of the circumstance and contents of the instant crime, the Defendant’s statement and attitude in the investigative agency and this court, and the appraiser belonging to the Medical Treatment and Custody Office in charge of the Defendant’s mental sentiment, expressed a medical opinion that “the Defendant is presumed to have been in a state of mental disorder whose capacity to discern things is significantly deteriorated due to the instant crime even at the time of the instant crime,” etc., the Defendant is deemed to have weak ability to discern things or make decisions due to the instant injury.

③ Medical opinions are presented to the effect that the defendant requires continuous interest and protection of his/her guardian in order to treat and adapt to society with mental disorders, and prevent recidivism, and that the medical treatment of his/her psychiatrists (in particular, the mental medicine treatment and support mental treatment) is necessary in the future during the wrongful period, and if not, it is likely that re-offending might occur."

Judgment on the Defendant and defense counsel's argument

1. Summary of the assertion

At the time of committing the instant crime, the Defendant was in in a state of mental disorder, where he was unable to discern things or make decisions.

2. Determination

As seen earlier, it may be recognized that the Defendant was in a state that the Defendant had the ability to discern things or make decisions at the time of committing the instant crime. However, in light of the Defendant’s statement to the investigative agency, the Defendant appears to be memorying most of the circumstances themselves at the time of committing the instant crime. Considering the fact that the Defendant’s behavior and appraisal intent expressed in CCTV images, which are the aforementioned evidence, at the time of committing the instant crime, did not present an opinion that the Defendant showed or is likely to show symptoms of mental disorder beyond the degree of mental disorder, due to his or her illness, it is not deemed that the Defendant was in a state of loss because the Defendant had the ability to discern things or make decisions beyond the weak state at the time of committing the instant crime

Application of Statutes

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

Articles 342 and 333 of the Criminal Act ( point of attempted robbery), Articles 254 and 250(1) of the Criminal Act ( point of attempted robbery, choice of limited imprisonment) of the Criminal Act, Articles 342, 334(2) and (1), 333 of the Criminal Act ( point of attempted robbery, choice of limited imprisonment)

1. Mitigation of mental illness;

Articles 10(2) and 55(1)3 of the Criminal Act (as seen earlier, the Defendant was in a state that, at the time of committing each of the instant crimes, the Defendant had weak ability to discern things or make decisions due to his or her illness)

1. Aggravation of concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with Punishment and homicide who are the largest number of Crimes)

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. Medical treatment and custody;

1. Scope of applicable sentences under law: Imprisonment with prison labor for 2 years and 6 months from June to June 22.

2. Scope of recommendations according to the sentencing criteria;

0 Crimes of homicide

[Determination of Punishment] Type 2 (Ordinary homicide) homicide

[Special Mitigation] Minor Bodily Injury, Mental Health and Medical Treatment (no one shall be responsible for it)

[Recommendation and Scope of Recommendation] Special Mitigation Zone, Imprisonment with prison labor for a year and two months to eight years (in the case of attempted murder, a crime of attempted murder is committed, which is the lowest limit of the recommended sentence, one year and two months to 1/3 months to 12 years to 2/3 years to 8 years to 12 years to 12 years to 3 years)

○ Scope of the recommended punishment according to the standards for handling multiple crimes, which does not apply to the crimes of attempted special robbery, and attempted robbery: Imprisonment with prison labor for not less than two years and six months (inasmuch as the crimes for which the sentencing guidelines have been set and the crimes for which no sentencing guidelines have been set are concurrent crimes under the former part of Article 37 of the Criminal Act, only the minimum limit of the recommended punishment for attempted murder for which the sentencing guidelines have been set shall be considered, and since the minimum limit of the recommended punishment is lower than the minimum limit of the applicable punishment

3. Determination of sentence: Three years of imprisonment; and

The Defendant committed the instant crime in a state of mental and physical disability due to early illness, and committed the instant crime in a state of mental and physical disability. All of the instant crimes were committed, and the victims did not have any reasonable circumstances to consider the Defendant. However, the Defendant committed the instant crime by driving away female victims on the same day, and committed the instant crime by using kitchen knife, which is a deadly weapon, during some of the crimes, and did not cause serious damage. As such, the nature of the crime was very poor, and the victims did not recover from damage to the victims at all until now, and it is difficult to view that the circumstance after the crime was committed is also good in view of the environment at which the Defendant was faced and it is difficult to expect active efforts to recover damage in the future. The Defendant seems necessary to provide proper medical treatment and protective measures for early illness, as well as proper medical treatment and protective measures for the Defendant’s age, character, occupation, family relation, etc., and to determine the sentence of medical treatment and custody concurrently by taking account of various circumstances, such as the need for medical treatment and custody.