(영문) 서울중앙지방법원 2018.10.25. 선고 2018고합755 판결

Articles (Evidence Nos. 1 through 8) entered in the attached confiscation list shall be confiscated from Defendant A. 100,000 won shall be collected jointly from the Defendants, and KRW 200,000 from Defendant A.

Reasons

Criminal facts

【Criminal Power】

On August 9, 2016, Defendant A was sentenced to one year and six months of imprisonment with labor for a violation of the Act on the Control of Narcotics, Etc. at the Suwon District Court on August 9, 2016 and completed the execution of the sentence. Defendant B was sentenced to four months of imprisonment with labor for a violation of the Act on the Control of Narcotics, etc. at the Suwon District Court on February 3, 2017 and completed the execution of the sentence on March 10, 2017.

【Criminal Facts】

1. Defendant A

(a) Medication, which is a psychotropic drug, (one clopon; hereinafter referred to as "coponon");

1) On July 2018, the Defendant: (a) inserted approximately 0.05 gopphones into a single-use chophone, dilution them with water, and administered them by means of injection to the Defendant’s arms blood transfusion.

2) On July 12, 2018, the Defendant administered approximately 0.05 g of phiphones in the aforementioned manner.

(b) Smoking marijuana;

On July 12, 2018, the Defendant smoked by inserting approximately 0.5g of marijuana in metal pipes from the Dmoto E, and inserting a fire. The Defendant provided a phiphonephone.

On July 13, 2018, the Defendant provided approximately 0.05g philophones that were contained in the one-time injection device to B from the above DMoel F around July 13, 2018.

(d) Possession of penphones, marijuana, and lsD;

At around 15:20 on July 13, 2018, the Defendant kept approximately 1.45g of philophonephones contained in plastic blocks, approximately 0.16g of philophones contained in plastic blocks, and approximately 0.04g of blocks contained in plastic blocks, and approximately 0.32g of clocks contained in plastic blocks, and kept approximately 1.19g of clocks and 4.7g of clocks in plastic blocks, and kept 6glocks and 5g of clocks containing 4.7g of clocks in plastic blocks, and kept 5g of clocks and 5g of clocks.

2. Defendant B

On July 13, 2018, the Defendant injected approximately 0.05 g of philophones received from A from the above DMF in a single-use injection instrument, dilution with water, and injection with the Defendant’s arms in a way of injection.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each prosecutor's interrogation protocol against the Defendants

1. Each protocol of seizure;

1. Requests for appraisal;

1. Ratification;

1. Previous records: Each criminal records and each investigation report (a copy of the judgment and other records attached);

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant A: Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) (the point of being administered, provided, and possessed by a penphone) of the former Narcotics Control Act (amended by Act No. 15481, Mar. 13, 2018; hereinafter the same shall apply), 61(1)4(a), and 3 subparag. 10(a) of the former Narcotics Control Act, Articles 61(1)6 and 4(1)2 of the former Narcotics Control Act (amended by Act No. 15481, Sep. 14, 2018; hereinafter the same shall apply), and Articles 59(1)5 and 3 subparag. 5, and 2 subparag. 3(a) (the point of possession of a lsD) of the former Narcotics Control Act

(b) Defendant B: Articles 60(1)2, 4(1)1, and 2 subparag. 3(b) of the former Act on the Control of Narcotics, Etc.

1. Commercial competition;

Defendant A: Articles 40 and 50 of the Criminal Act (the punishment imposed on the violation of the Act on the Control of Narcotics, etc. (fence), the violation of the Act on the Control of Narcotics, etc. (fence) due to the possession of marijuana, the violation of the Act on the Control of Narcotics, etc. (fence) due to the possession of lsD, and the punishment imposed on the violation of the Act on the Control of Narcotics, etc. (fence)

1. Selection of punishment;

(a) Defendant A: Each of the crimes of violation of the Act on the Control of Narcotics, etc. (fence) due to the medication and provision of phiphones, and the crime of violation of the Act on the Control of Narcotics, etc.

B. Defendant B: Selection of imprisonment

1. Aggravation for repeated crimes;

A. Defendant A: Article 35 of the Criminal Act [limited to the proviso of Article 42 of the Criminal Act with respect to a violation of the Act on the Control of Narcotics, etc. (fence) due to ls holding], and Defendant B: Article 35 of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant A: Aggravation of concurrent crimes within the scope of the proviso of Article 42 of the Criminal Act, stipulated in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act due to possession of lss with the largest amount of lss, etc.

1. Confiscation;

Defendant A: the main sentence of Article 67 of the Narcotics Control Act

[A prosecutor is seeking the confiscation of a disposable injection (No. 10). However, the disposable injection is difficult to readily conclude that it was a thing provided or intended to be provided for the instant crime, even if all evidence submitted by the prosecutor was examined by the prosecutor.]

1. Prosecution defendants: proviso to Article 67 of the Narcotics Control Act (based on the calculation of an additional collection charge);

A. Joint collection portion of the Defendants: 100,000 won (i.e., the price for one-half of the administration of copon administered by Defendant B after being provided by Defendant A)

(b) Defendant A: 200,000 won;

1) Criminal No. 1-A: 200,000 won (i.e., price for cancer transactions twice for philophone medication)

2) Criminal No. 1-b: 3,000 won (i.e., cancer trade price per smoking marijuana)

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for not less than one year but not more than 50 years;

(b) Defendant B: Imprisonment with prison labor for not less than one month but not more than 20 years;

2. Scope of recommended sentences according to the application of sentencing guidelines;

A. Defendant A

1) The crime of violation of the Act on the Control of Narcotics, etc. (Basic Crimes) due to the possession of lsD

[Determination of Types] 4 Medication, Simple Possession, etc. (Narcotic drugs and perfumesa, etc.)

○ Aggravations: Criminal records of the same kind (not more than three years of suspended execution);

[Recommendation and Scope of Recommendation] Aggravation, Imprisonment for not less than two years, but not more than four years;

2) Crimes of violation of the Act on the Control of Narcotics, etc. (compact 1) due to the administration of phiphones (compon 1)

[Determination of Types 3 [Determination of Types ] Simple possession, etc. of Medications (flag(b) and (c)]

○ Aggravations: Criminal records of the same kind (not more than three years of suspended execution);

[Recommendation and Scope of Recommendation] Aggravation, Imprisonment with prison labor for not less than one year but not more than three years;

3) Crimes of violation of the Act on the Control of Narcotics, etc. (compacting 2) by the provision of phiphones (componing 2)

[Determination of Types 3 [Determination of Types ] Simple possession, etc. of Medications for Narcotics (Korean items (b) and (c)]

○ Aggravations: Criminal records of the same kind (not more than three years of suspended execution);

[Recommendation and Scope of Recommendation] Aggravation, Imprisonment with prison labor for not less than one year but not more than three years;

4) Scope of recommending punishment according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than two years but not more than six years and six months (in accordance with the standards for handling multiple crimes, imprisonment with prison labor for not less than four years and with prison labor for which the highest range of sentence is 1/2 of the upper limit of the concurrent crimes among four years according to the standards for handling multiple crimes, one year and six months and one year and six months of imprisonment with prison labor for which the upper limit of the range of sentence is the second highest,

B. Defendant B

[Determination of Types 3 [Determination of Types ] Simple possession, etc. of Medications for Narcotics (Korean items (b) and (c)]

○ Aggravations: Criminal records of the same kind (not more than three years of suspended execution);

[Recommendation and Scope of Recommendation] Aggravation, Imprisonment with prison labor for not less than one year but not more than three years;

3. Sentence A and defendant A: Two years of imprisonment;

(b) Defendant B: Ten months of imprisonment;

The crimes related to narcotics, etc. have a significant negative impact on society as a whole, such as avoiding the body and mind of an individual as well as impairing the public health or inducing other crimes. In particular, even though the records of punishment for the same kind of crime amount to seven times (Defendant A) and five times (Defendant B), the Defendants committed the crimes in this case. These circumstances are disadvantageous to the Defendants.

Defendants reflect their criminal acts. Defendant A’s health is not good, and Defendant B is only once the number of medication is more than once. These circumstances are favorable to the Defendants.

In addition, in comprehensive consideration of all the sentencing factors, such as the age, character and conduct, environment, motive, means and consequence of the crime, the circumstances after the crime, etc., the defendant B shall be sentenced to the punishment as ordered by the order beyond the minimum sentencing criteria according to the sentencing guidelines.