(영문) 서울북부지방법원 2013.09.25 2013노965

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(영문) 서울북부지방법원 2013.09.25 2013노965

특정범죄가중처벌등에관한법률위반(절도)

Text

The defendant's appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Despite the fact that the defendant of mistake of facts committed the crime of this case by contingency, the court below which recognized the habituality of the defendant is erroneous by misunderstanding the facts and thereby affecting the conclusion of the judgment.

B. The sentence imposed by the lower court (one year and six months of imprisonment) is too unreasonable.

2. Determination

A. In determining the assertion of mistake of facts, habituality refers to a habition that repeatedly commits the larceny, and the existence of criminal records in the same kind of crime and the frequency, period, motive, means, and method of the crime should be comprehensively considered in determining whether habituality exists.

(2) In light of the following circumstances, the Defendant committed the instant larceny, which is the same kind of crime during the period of repeated crimes, after being sentenced to imprisonment with prison labor for habitual larceny on June 2010 and being sentenced to punishment for 1 year and 6 months, and most of the first head of the lower judgment, which was punished for larceny, committed against the victim under the influence of alcohol, and thus, the Defendant committed the instant larceny. In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, such as: (a) the Defendant committed the instant larceny since 2004; (b) the Defendant committed the instant larceny, which is the same type of crime during the period of repeated crimes, after being sentenced to punishment for 1 year and 6 months; and (c) the first head of the lower judgment, which was punished for larceny, was similar to the instant crime and the Act on the Acceptance of Crimes; and (d) the Defendant’s assertion is without merit.

B. We examine the judgment on the argument of unfair sentencing, the fact that the defendant is against the crime of this case, and that the victim does not want the punishment against the defendant by an agreement with the victim is favorable to the defendant.

However, the crime of this case is habitually under the influence of the defendant during the period of repeated crime.

참조판례

-대법원 2009. 2. 12. 선고 2008도11550 판결

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