2013 Highest 4842, 2013 Highest 5476 (Joints), 2013 Highest 5824 (Joints)

Violations of the Act on Probation and Electronic Monitoring, etc. for Specific Offenders

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November 28, 2013

A defendant shall be punished by imprisonment for one year.

Criminal History Office

On December 24, 1976, the Defendant was sentenced to imprisonment for one year, and on February 2, 1978, for indecent act in a resident support district in Daegu District Court.

16. Imprisonment with prison labor for two years for the crime of kidnapping in the same court, in the Daegu District Court Branch of Jun. 5, 1981, three years for the crime of causing rape in the course of rape; three years for the crime of attempted rape in the Seoul Central District Court on September 4, 1984; and three years for the crime of attempted rape in the course of the Seoul Central District Court.

10. The Daegu District Court sentenced each of 8 months of imprisonment for a violation of the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims of the Act on the Punishment of Sexual Crimes and the Protection, etc. of Victims (Indecent act by force against a person under the age of 13) at the Daegu District Court on December 13, 199 and completed the execution of the sentence in a prison on April 16, 2013, by the same court on November 11, 2010.

The Defendant is a person who was sentenced to ten months of imprisonment and five years of attachment of an electronic tracking device due to quasi-indecent act by force until February 24, 2018.

A person with an electronic device attached shall not arbitrarily separate, damage, or otherwise impair the utility of the electronic device during the period of attachment of the electronic device, and for this purpose, he/she shall charge, carry, or manage the electronic device so that the function of the electronic device can be maintained normally during the period of attachment of the electronic device.

1. On May 28, 2013: Around 20: (a) the Defendant went out of the Republic of Korea on May 28, 2013; and (b) on the same day: (c) was unable to carry a portable tracking device in the vicinity of the Defendant’s residence in Daegu Dong-gu, Daegu-gu until he returned home at around 17:49, and caused a escape warning of the device, thereby causing a normal location tracking device; and (d) was unable to be performed from around that time to July 16, 2013, as indicated in the List of Crimes (1) of Attached Table 12 times in total, so that the function of the electronic device can not be maintained normally by carrying a portable tracking device or by neglecting it.

2. On July 18, 2013: (a) the Defendant sent out around 20:21 on the same day, without carrying a portable tracking device until returning home at around 47: (b) went away from the suspect’s residence in the Daegu Dong-gu, and caused a warning of leaving the scope of response to the device of attaching (Carrying-on) so that the Defendant could not track a normal location; and (c) from around that time to August 6, 2013, the electronic device function cannot be maintained normally by the same method five times, such as the list of crimes in attached Form (2).

Accordingly, the defendant has impaired the utility of the electronic device during the period of attachment of the electronic device.

3. On August 8, 2013: around 15, 2013: The Defendant was placed at around the Daegu Dong-gu, without any reasons, at around a parking lot, with a portable tracking device warning and without any reasons, without charging a portable tracking device, who was ordered by the Central Control Center to charge the portable tracking device.

Accordingly, the defendant has impaired the utility of the electronic device during the period of attachment of the electronic device.

Summary of Evidence

1. Partial statement of the defendant;

1. A protocol concerning the suspect examination of the accused;

1. A written request to investigate an electronic tracking device, a written command of execution of each attachment order, a report on a violation by an electronic device subject to attachment (the details of the violation), a processing ledger, such as location tracking, risk tracking, warning, etc., each probation, and a written confirmation of notification of obligations before execution of the attachment order

1. Previous convictions in judgment: Criminal records and investigation reports (report attached to the same kind of crime and personal records/ confinement status);

Application of Statutes

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

Articles 38 and 14(1) of the Act on Probation, Electronic Monitoring, etc. of Specific Criminal Offenders (Selection of Imprisonment)

1. Aggravation for repeated crimes;

Article 35 of the Criminal Code

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

Judgment on Defendant’s argument

The Defendant asserts to the effect that he was unable to know that the electronic device was a low-power under the influence of alcohol at the time of August 8, 2013.

In light of the following circumstances acknowledged by the evidence as follows, i.e., (i) at the time of the instant case, the probation officer notified the Defendant that the electronic device was in low-power condition and instructed the Defendant to charge, and the Defendant was aware that the electronic device was in low-power condition, and (ii) the Defendant was subject to warning several times from the probation office on the ground of the Defendant’s violation of matters to be observed, such as escape from the scope of response and the duty to maintain efficiency, even before the occurrence of the instant crime, and even before the occurrence of the instant crime, it is reasonable to deem that the Defendant was aware that the electronic device was in low-power condition, and thus, the Defendant did not charge and maintain its utility, thereby impairing its utility. Therefore, the above argument by the Defendant is without merit.

The crime of this case committed by the defendant on the grounds of sentencing is committed under the conditions favorable to the defendant, such as the following: (a) the crime of this case committed by the specific criminal offender is highly likely to seriously violate the legislative purpose of the Act to prevent recidivism and to protect citizens from specific crimes; (b) the crime of this case again committed despite the record of punishment for the same crime; (c) the act of this case was committed despite the fact that there was a significant number of times that the location tracking electronic device has been effectively used; and (d) the overall mistake of the defendant is divided and reflected as a whole; and (e) the elderly has committed a favorable act to the defendant. Such circumstances include the motive, circumstance, means and method of the crime of this case; (d) the circumstances before and after the crime; and (e) the defendant's age, character

Judges Maximum Order

A person shall be appointed.