2017Gohap459 Violation of the Act on the Control of Narcotics, etc. (marijuana)

1. A;

2. B

Kim Chang-seop (Lawsuit), Kim Jung-il (Trial)

Attorney C (for the defendant A)

Attorney D (Korean National Assembly for Defendant B)

July 13, 2017

Defendant A shall be punished by imprisonment with prison labor for one year and by imprisonment for eight months.

However, with respect to Defendant B, the execution of the above sentence shall be suspended for two years from the date this judgment became final and conclusive.

Defendant B shall order Defendant B to attend the drug therapy for 40 hours.

In collaboration with Defendant A, KRW 584,00, and KRW 524,000 among them shall be collected from Defendant A, respectively.

To order the Defendants to pay an amount equivalent to the above additional charges.

Criminal facts

【Criminal Power】

Defendant A, at the Seoul Central District Court on June 16, 2016, sentenced to 6 months of imprisonment and 2 years of suspended sentence for a violation of the Act on the Control of Narcotics, Etc. (mariana) at the Seoul Central District Court, and the said judgment became final and conclusive on June 24, 2016 and is currently

【Criminal Facts】

1. Defendant A

(a) Acceptance and smoking of marijuana from October 18, 2016;

around 02:00 on October 18, 2016, the Defendant received approximately 10 grams of marijuana from G in the number virts parked near the F coffee shop located in Gangnam-gu Seoul, Gangnam-gu.

Then, at around 03:00 on the same day, the defendant made an apparatus that enables him to smoke marijuana with water in plastics in the residence of the Gangnam-gu Seoul Metropolitan Government H building No. 301, and dices it by attaching approximately two grams among marijuana received as above and attaching a fire.

Accordingly, the defendant received and smoked marijuana even though he is not a narcotics handler.

(b) Trade in marijuana from April 6, 2017;

On April 6, 2017, around 03:50, the Defendant, at the residence of Gangnam-gu Seoul Metropolitan Government No. 1503, found approximately three grams of marijuana to B, and, in return, received KRW 500,000 from B to the account of a corporate bank bank in the name of the Defendant.

Accordingly, the Defendant traded marijuana.

2. Defendant B

(a) Smoking marijuana in October 18, 2016;

On October 18, 2016, at around 03:00 on October 18, 2016, the Defendant drank two grams of marijuana, among marijuana possessed by A on the smoking machine, which was made by containing water in plastics, in the dwelling of the Defendant as stated in paragraph 1(a).

Accordingly, the Defendant smoked marijuana.

(b) Trade in marijuana and smoking in April 6, 2017;

The Defendant, at around 03:50 on April 6, 2017, remitted KRW 500,000 to the bank account in the name of the Defendant’s bank account in the name of A, and in return, received approximately 3 grams from A from A, and then drank approximately 0.5g of the marijuana purchased as above by inserting 0.5g of the hemp purchased as above into the paper of tobacco and added a fire to smoke.

Accordingly, the Defendant traded or smoked marijuana.

A summary of the steam

1. Defendants’ respective legal statements

1. Records of seizure and the list of seizure (Evidences 1, 2);

1. Each investigation report (Evidence list 10, 12, 23);

1. Account transactions;

1. Previous convictions indicated in judgment: Criminal history records, etc. inquiry reports (A) and investigation reports (Evidence List 24);

Application of Statutes

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

(a) Defendant A: Articles 61(1)6 and 4(1)2 (a) of the Narcotics Control Act, Article 61(1)4 (a), and Article 3 subparag. 10 (a) (a) of the Narcotics Control Act, Article 59(1)7 and subparagraph 7 of Article 3 of the Narcotics Control Act (a)

(b) Defendant B: Article 61(1)4 (a) and Article 3 subparag. 10 (a) of the Narcotics Control Act (the point of smoking marijuana, the point of imprisonment with labor for each of them), Article 59(1)7 and Article 3 subparag. 7 of the Narcotics Control Act (the point of trade in marijuana);

1. Aggravation of concurrent crimes;

(a) Defendant A: The aggravated punishment of concurrent crimes under the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravated punishment of concurrent crimes within the scope of adding up the long-term punishments of the crimes of violation of the Act on the Control of Narcotics, etc. (the Act on the Control of Narcotics, etc.

(b) Defendant B: the aggravated punishment under the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravated punishment of concurrent crimes within the scope of adding up the long-term punishments of the crimes of violation of the Act on the Control of Narcotics, etc. (the Act on the Control of Narcotics, etc.) to

1. Discretionary mitigation;

Defendant B: Articles 53 and 55(1)3 of the Criminal Act (The conditions favorable to the reasons for sentencing below)

1. Suspension of execution;

Defendant B: Article 62(1) of the Criminal Act (The following consideration is made for the reason of sentencing)

1. Order to attend lectures;

Defendant B: Article 62-2(1) of the Criminal Act

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

○ Defendant A: Total of 584,000 won

- 500,000 won for sale of three grams of marijuana listed in paragraph 1(b) of the holding

Of the marijuana listed in paragraph (a) of Article 1, the remainder 7g excluding the above 3gs (i.e. 10g - 3g) X 1 x 1 grams) = 84,000 won

○ Defendant B: 524,00 won

[2] 12,00 won per gram of marijuana 2 gram X 1 as described in paragraph (a) of this Regulation = 24,000 won

purchase price of 500,000 won for 3 grams as described in subsection (b) of section 2

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. The defendant;

(a) The scope of punishment by law: Imprisonment with prison labor for one year to 40 years; and

(b) Scope of recommendations based on the sentencing criteria;

1. Basic crime: the crime of violation of the Act on the Control of Narcotics, etc. (mariana) by trading marijuana in its holding;

[Determination of Types] Narcotics Criminal Group, Trade Mediation, etc., Type 2 (mariju, flagb. (b) and (c)

【Specially Neither He nor she shall be subject to suspended execution for the same criminal record (not more than three years);

[Scope of Recommendation] Imprisonment of 1 year and 6 months to 4 years (Aggravation)

2) Concurrent Crimes 1: Crimes of violation of the Act on the Control of Narcotics, etc. (mariana) by hemps as indicated in its holding;

[Determination of Types] Narcotics Criminal Group, Medications, Simple Possession, etc. (mathma, mathal, d. and e.)

【Specially Neither He nor she shall be subject to suspended execution for the same criminal record (not more than three years);

[Scope of Recommendation] 10 months to 2 years (Aggravated Field)

3) Concurrent crimes 2: Crimes of violation of the Act on the Control of Narcotics, etc. (mariana) by smoking marijuana as indicated in the judgment.

[Determination of Type] Offense for Narcotics, Medication, Simple Possession, etc., Type 2 (mariju, psychotropic Affairs, item (d) and (e), etc.)

【Specially Neither He nor she shall be subject to suspended execution for the same criminal record (not more than three years);

[Scope of Recommendation] 10 months to 2 years (Aggravated Field)

(c) Scope of recommended sentences based on the standards for handling multiple crimes: Imprisonment with prison labor for a year and six months to five years;

(d) Determination of sentence;

Considering the fact that the crime of narcotics, such as the crime of this case, is not easy to detect due to its characteristics, and the risk of recidivism is high, as well as the negative impact on society due to hallcability and toxicity, etc., Defendant A committed again the crime of this case during the suspension of execution despite the past being sentenced to the suspension of the execution of imprisonment due to the crime of violation of the Act on the Control of Narcotics, etc. (mariju) and Defendant A sold part of marijuana received as stated in its reasoning to Defendant B, it is necessary to punish Defendant A strictly.

However, in comprehensive consideration of the following factors: (a) Defendant A confessions and reflects his criminal act; (b) the amount of marijuana handled by Defendant A is not large; and (c) and all factors of sentencing specified in the records and arguments of this case, including the age, environment, character and conduct, motive and means of the criminal act; and (d) the circumstances after the criminal act, etc., he/she shall leave the lower limit of the recommended sentence on the sentencing guidelines, and determine

2. Defendant B

(a) The scope of applicable sentences under law: Imprisonment for six months to twenty years; and

(b) Scope of recommendations based on the sentencing criteria;

1) Basic crime; Violation of the Act on the Control of Narcotics, etc. (mariana) by the sale and purchase of marijuana in its holding;

[Determination of Types] The Group of Narcotics Crimes, Trade Mediation, etc., and Type 2 (mariju, matrieb (b) and (c).)

【Special Escopics】 Purchasing or receiving for medication, simple possession, etc.

[Scope of Recommendation] Imprisonment from 8 months to 1 year and 6 months (Discretionary area)

2) Concurrent Crimes 1: A violation of the Act on the Control of Narcotics, etc. (mariana) by smoking marijuana on April 6, 2017, as indicated in its holding.

[Determination of Type] Offense for Narcotics, Medication, Simple Possession, etc., Type 2 (mariju, psychotropic Affairs, item (d) and (e), etc.)

【Special Convicted Person】

[Scope of Recommendation] Imprisonment from 8 months to 1 year and 6 months (Basic Area)

3) Concurrent Crimes 2: A violation of the Act on the Control of Narcotics, etc. (mariana) by smoking marijuana on October 18, 2016, as indicated in its holding.

[Determination of Type] Offense for Narcotics, Medication, Simple Possession, etc., Type 2 (mariju, psychotropic Affairs, item (d) and (e), etc.)

【Special Convicted Person】

[Scope of Recommendation] Imprisonment from 8 months to 1 year and 6 months (Basic Area)

(c) Scope of recommended sentences based on the standards for handling multiple crimes: Imprisonment with prison labor for up to two months from August;

(d) Determination of sentence;

The crime of narcotics, such as the crime of this case, is not easy to detect due to its characteristics, and the risk of recidivism is high, and it is necessary to strictly punish Defendant B in consideration of the negative impact on the society as a whole due to the restitution, toxicity, etc.

However, Defendant B has no record of being sentenced to punishment exceeding the same criminal history or fine; Defendant B appears to have purchased marijuana from Defendant A for the purpose of smoking; and other factors of sentencing specified in the records and arguments of this case, such as Defendant B’s age, environment, character and conduct, motive and means of the crime, circumstances after the crime, etc., shall be comprehensively considered.

It is so decided as per Disposition for the above reasons.

For the presiding judge or judge;

The same judge's identity

Judges Lee Young-young

1) A retail store as of January 2017 is (Evidence No. 647 pages) and the market price as of the closing date of the instant pleading is also presumed to be the same. The same shall also apply hereinafter.