Defendant

Prosecutor

Lee Don-hee (Public Prosecution) and in-depth trial

Attorney Yoon Jong-hee

Daegu District Court Decision 2016Gohap60 Decided June 23, 2016

1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment for three years;

3. The defendant shall be ordered to complete a sexual assault treatment program for 80 hours.

4. 97,500 won shall be collected from the defendant.

1. Summary of grounds for appeal;

The sentence of the lower court (three years of imprisonment, four years of suspended execution) is too unhued and unreasonable.

2. Ex officio determination

We examine ex officio the judgment on the grounds for appeal by the prosecutor.

The lower court, on the part of the crime of rape or bodily injury caused by indecent act by force, decided that the Defendant committed rape or indecent act by force against the victim on 13 occasions, with respect to the crime of rape or indecent act by force against the victim. However, on the part of the crime of rape, bodily injury by force, or bodily injury caused by indecent act by force, the act of using the psychotropic drug is limited to the part of a series of crimes of rape, bodily injury by force, and the protected legal interest of the crime of violation of the Act on the Control of Narcotics, Etc. also is to contribute to the improvement of public health by preventing harm to public health through the prevention of the crime of violation of the Act on the Control of Narcotics, etc., since the Defendant’s act of causing sexual self-determination and physical integrity of the victim, it does not constitute a case of evaluation as a single act, and the lower court seems to have a substantial competition relationship. Ultimately, the lower court’s judgment is reversed in its entirety

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act without examining the prosecutor's argument of unfair sentencing, and the judgment below is reversed and it is again decided as follows.

From July 2006, the Defendant, from around January 2006, was in close to the victim’s Nonindicted Party (the age of 40) and the relationship between the victim’s Nonindicted Party (the age of 40), but continued to be in close to her friendship on January 2008. As such, the Defendant, who was under a prescription and preparation for the Defendant’s treatment, lost the Defendant’s mind of eating at a stroke-m, which is a psychotropic drug that had been prescribed and prepared for the Defendant’s treatment of stroke, and had the victim lose the Defendant’s mind of eating, and had

1. Violation of the Act on the Control of Narcotics, etc., such as rape and injury;

On December 16, 2012, the Defendant: (a) while carrying the victim on the Defendant’s vehicle at the Daegu City, Daegu City, where he was carrying the victim on the Defendant’s vehicle at night around December 16, 2012; and (b) using the cresh in order to get the victim to the toilet, the Defendant used the cresh in order to put the victim into the toilet, and laid down the 1.5 minutes of the water exemption “stroked” which the victim had been prepared in advance to the coffee, and had the victim know of the fact.

At around 23:00 on the same day, at around 01:00 on the following day, the Defendant inserted the coffee containing the stroke-mm in the “○○○○○○○○○○○○” near the Southern-gu Southern-gu, Daegu-gu, with the Defendant’s sexual organ into the part of the victim who was unable to resist.

As a result, the Defendant used a psychotropic drug mm even though he is not a narcotics handler, used it, and raped the victim after suppressing the victim's resistance, and suffered an injury to the victim by getting the victim sleepd.

From that time until June 2015, the Defendant, as indicated in the attached Table 1 of the Crimes List 1, had the victim drinked a coffee containing a stroke-m, and raped the victim, sustained the victim’s bodily injury, and used a psychotropic drug stroke-m even if the victim is not a narcotics handler.

2. Injury by force or violation of the Act on the Control of Narcotics, etc.;

On March 20, 2013, while the Defendant was carrying the victim on the Defendant’s vehicle in Daegu City, the Defendant laid down the 1.5 minutes of “stroked” which the victim had been prepared in advance on a coffee where the victim was strokeed by using the stroke in order to get the victim to the toilet, and let the victim stroke it down.

At around 23:00 on the same day, the Defendant: (a) from the “○○○○○○○○○○○,” near the Southern-gu Southern-gu, Daegu-gu, on the following day, entered a stroke-mm, lost the mind of the victim; (b) became the chest of the victim in a state of failing to resist; and (c) included the victim’s knife in the part of the victim.

As a result, the Defendant forced the victim to commit an indecent act, and caused the victim to be locked by the stroke-m, and used psychotropic drugs stroke-m even though he is not a narcotics handler.

In addition, from that time until April 20, 2015, the Defendant: (a) made the victim drink a coffee containing a stroke-mm, and forced the victim to commit an indecent act; (b) caused the victim to be injured; and (c) used a psychotropic drug stroke-m even if the victim is not a narcotics handler.

The summary of the evidence of the above crime is the same as the corresponding column of the judgment of the court below, and thus, it is accepted in accordance with Article 369 of the Criminal Procedure Act.

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

(a) Use of psychotropic drugs: Article 61 (1) 5, Article 4 (1) 1, and subparagraph 3 (d) of Article 2 of the Act on the Control of Narcotics, Etc. (Selection of Imprisonment);

B. The injury resulting from rape listed in the annexed Table 1 No. 1: Articles 301 and 297 (Selection of Imprisonment with prison labor) of the former Criminal Act (amended by Act No. 11574, Dec. 18, 2012; hereinafter the same shall apply)

(c) The remaining injury resulting from rape: Articles 301 and 297 of each Criminal Act.

(d) The point of injury caused by indecent act by force listed in the annexed Table 2 No. 1: Article 301 of the former Criminal Act and Article 298 of the Criminal Act.

(e) The remainder of injury caused by indecent act by compulsion: Articles 301 and 298 of the Criminal Act.

2. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of Crimes and Rape)

3. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

4. Order to complete programs;

The main sentence of Article 16 (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes

5. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

(97,500 won = 19.5 mm by which it was used x 5,00 won by the single political party)

The crime of this case is very heavy in that it was planned and maliciously repeated to commit the crime for not less than 2 years by mixing the victim with psychotropic drugs, which are psychotropic drugs prepared in advance by the victim who had a friendly relationship with the defendant. The crime of this case was committed on four occasions by rape and forcing the victim nine times, and committing an indecent act on nine times or more, and the crime was repeated. The victim was interfered with daily life due to the legacy for several days after taking the strokem, and even if he was aware of the sexual intercourse with the defendant, who was not a relationship with the defendant, and was in physical and mental problems even though he was aware of the sexual intercourse with the defendant, the victim continued to have the remaining son of the defendant. After that, considering the circumstances that the victim was aware of the first stroke and was able to have a great decrease and loss of the defendant's reliance on human trust, and that the defendant's punishment was too severe, even if the defendant was submitted to the suspended sentence against the defendant, it is determined that the defendant's punishment was too unfair.

On the other hand, the Defendant has committed a crime, and is against his wrongness. After being detained in the course of investigation, the Defendant paid a considerable amount of money agreed upon to the victim. The Defendant has no previous conviction except where he was punished by a fine of two minor fines prior to the lapse of 20 years.

In addition to these circumstances, the punishment as ordered shall be determined by comprehensively taking into account all the circumstances, such as the Defendant’s age, character and conduct, environment, motive, means and consequence of the commission of the crime, and the circumstances after the commission of the crime, etc.

Where a conviction becomes final and conclusive on the crime of rape or bodily injury resulting from indecent act by compulsion in the judgment, the defendant is a person subject to registration of personal information pursuant to 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 pursuant to Article 43 of the same Act

The Defendant has no record of sexual crime. The Defendant is expected to be able to prevent the recidivism of the Defendant even with the registration of personal information of the Defendant and the order to complete a sexual assault treatment program to a certain extent. In full view of the benefits expected from the disclosure order, the effect of preventing sexual crimes, disadvantages and side effects of the Defendant, etc., given that there are special circumstances where disclosure of the Defendant’s personal information is prohibited, the Defendant is not subject to an order of disclosure and notification pursuant to Article 47(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes, the proviso to Article 49(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, the proviso to Article 49(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes

[Attachment Omission]

Judge Lee Dong-dae (Presiding Judge)