(영문) 서울중앙지방법원 2019.5.31. 선고 2019고합249 판결

The probation order requester shall be ordered to be put on probation for three years, and matters to be observed in the attached Form shall be imposed.

Reasons

Criminal facts and facts constituting the probation order

【Criminal Power】

On October 20, 201, the defendant and the person requesting the probation order (hereinafter referred to as the "defendant") were sentenced to imprisonment for two years by force at the Seoul Southern District Court for the crime of indecent act by force, and on August 9, 2012, the Suwon District Court sentenced the fine of eight million won by force.

【Criminal Facts】

On March 12, 2019, around 14:20, the Defendant discovered that the victim C (the name, the son, and the 46-year-old age) was smoking tobacco in front of the Defendant’s house located in Yeongdeungpo-gu Seoul, Yeongdeungpo-gu, Seoul at around 14:20, and found the victim to have the victim’s face by taking out his/her sexual organ out of his/her own seat and cutting it into the victim’s face. On the other hand, the Defendant “I wn the cigarette before our house, you can wn the cigarette so that I can wn the cigarette without the driver’s consent, and then I am the victim’s face and head at a time when the victim refused it, and the victim was able to walk the victim’s face and the bridge by walking it into the victim’s wall and the knick, and then the victim’s chest and the knick.

Accordingly, the defendant committed an indecent act by assaulting and threatening the victim.

[Fact of Grounds for Probation Orders]

Although the Defendant had had the record of punishment for a sexual crime as stated in the records of the crime and the criminal facts, he again committed a sexual crime. In light of the Defendant’s sexual crime records similar to the instant crime and the object, circumstances and methods of the crime, motive of the crime, Defendant’s tendency, environment, etc., the Defendant is likely to recommit a sexual crime.

Summary of Evidence

1. Defendant's legal statement;

1. C's statement recorded in two video-recordings of the victim;

1. An investigation report (a list of reports filed and processed shall be attached);

1. Blucs and total image CDs of vehicles parked at the scene of occurrence;

1. The risk of recidivism of a sexual crime as indicated in the judgment: The defendant is deemed to have a risk of recommitting a sexual crime, taking into account the above evidence and the following circumstances acknowledged by the response to a request prior investigation, and the character and conduct of the defendant, environment, the objects of the crime, the circumstances and methods of the crime

① On October 20, 201, the Defendant, as indicated in the records of the crime record, was sentenced to two years of imprisonment by force at Seoul Southern District Court for a crime of indecent act by force, and was sentenced to eight million won of fine by force at the Suwon District Court on August 9, 2012.

② The crime of indecent act by compulsion on the part of the Defendant’s judgment and the crime of this case are similar to the circumstances and methods of the crime by compulsion on the part of the Defendant’s crime committed an indecent act by force.

③ As a result of the evaluation of the risk of sex offenders in Korea (KSOAS), the Defendant’s recidivism risk was assessed at the level of 17 to 18 (the total point of 29 points and the total point of 13 points and above). The records of sex crimes, the period of confinement, and the initial police records were considered as factors that are the risk of recidivism. In full view of the Defendant’s criminal records, the investigator who conducted a prior investigation into the Defendant’s claim, the circumstances of this case, and the assessment of the risk of recidivism, presented his opinion that the Defendant’s recidivism risk seems to be high.

Application of Statutes

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

Article 298 of the Criminal Act

1. Order to disclose and notify;

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;

The main sentence of Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Article 21-3 (1), Article 21-2 subparagraph 1, Article 21-4, and Article 9-2 (1) 3, 4, and 5 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders subject to the imposition of a probation order and matters to be observed;

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with Non-compliance Order (this shall not apply to cases where an order is issued to a defendant on probation and completion of sexual assault treatment programs is imposed due to the matters to be observed, and

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for one month to ten years; and

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Type] Crimes of Indecent Act by Indecent Acts by Force (General Indecent Acts by Force) on the General Standards for Sexual Crimes

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 6 months of imprisonment to 2 years

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and result of the crime, and various sentencing factors specified in the arguments in the instant case, such as the circumstances after the crime, shall be determined as the order.

The crime of this case was committed on the grounds that the Defendant, by taking out his own sexual organ at a low level, was committed by assaulting and indecent acts against the victim on the ground that the victim was refused to do so, and the nature of the crime is not weak in light of the place, circumstance, method, etc. of the crime. The Defendant has a criminal record of criminal punishment twice criminal punishment due to sexual assault, including imprisonment sentenced due to indecent acts by force similar to the crime of this case. The victim appears to have caused considerable mental shock and sexual humiliation. The victim is punished against the Defendant.

The defendant recognized the crime of this case and reflects on the fact that the defendant suffered from a traffic accident in around 2001. The defendant was suffering from brain damage by the mental retardation and brain functional disorder, sexual shock, and other behavior disorder by the Do, and showed an indaptable change in alcohol consumption due to the weakening of resistant damage (refer to the judgment related to No. 176 of the Investigation Record), and the physical condition of the defendant is judged to have affected the crime of this case. In addition, the defendant appears to have been difficult in a friendly family environment, such as not being provided with the care of his family members.

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