2013Gohap1200 Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (13 years of age)

Minor indecent act by compulsion)

2013. Consolidated order to attach 2013.

2013 high-ranking 27 (Consolidated Medical Treatment and Custody)

Petitioners and candidates for medical treatment and custody

A

Park Jong-young (Public Prosecution) and Lee Jong-young (Public Trial)

Attorney B (Korean National Assembly)

February 10, 2014

A defendant shall be punished by imprisonment for not less than one year and six months.

Information on defendants shall be disclosed and notified through information and communications networks for five years. A candidate for medical treatment and custody shall be punished by medical treatment and custody.

The request for the attachment order of this case is dismissed.

Criminal facts and facts constituting grounds for medical treatment and custody

【Criminal Power】

On January 19, 2012, the defendant and the candidate for medical treatment and custody (hereinafter, the defendant) were sentenced to a suspended sentence of two years and probation in January 27, 2012 on the grounds of the violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (a minor under thirteen years of age) in the Sungnam District Court's Support for Sungnam District, and the judgment was finalized on January 27, 2012.

【Criminal Facts】

The defendant shows that he suffered brain damage due to a traffic accident in about 10 years prior to the occurrence of the 10-year period, and has a major chronic recognition disorder such as her memory, etc., which has weak ability to discern things or make decisions due to dementia symptoms, etc.

At around 16:00 on September 16, 2013, the Defendant discovered the victim D (n, 12 years of age) in the street between C Apartment 102 and 103 in Gangnam-gu Seoul, Seoul, and found the victim D (n, 12 years of age). If the victim Dag himself preventss the victim from driving ahead of the way, he gets the victim's knife, and gets the victim's knife, and gets the victim's knife, he gets the victim's knife, led the victim's body again, knife the victim's body, led the victim's knife by force.

Accordingly, the Defendant committed an indecent act by force against a minor victim under 13 years of age.

【Facts of Medical Treatment and Custody】

As the defendant shows awareness disorder corresponding to dementia, mental therapy is necessary for a considerable period of time, and sexual assault crimes have been committed against minors under the age of 13 in a similar way with weak ability to discern things or make decisions despite having been punished for sexual assault crimes, and there is a need to treat them in a medical treatment and custody facility and there is a risk of recidivism.

Summary of Evidence

1. Partial statement of the defendant;

1. stenographic records or victim video CDs with respect to D (such as making a very clear statement about the fact of damage to D and credibility exists in the statement);

1. An expert opinion on a child sexual assault case;

1. On-site photographs;

1. The risk of recidivism and necessity of medical treatment and custody: The following circumstances acknowledged by the above evidence and a medical certificate on each defendant, a criminal investigation report, a mental appraisal report, and a result of the sentencing of this court, i.e., the defendant, around September 15, 201, committed indecent acts by force on a female infant under ten years of age by means similar to the crime of this case. On January 19, 2012, the defendant was sentenced to a suspended sentence of two years of imprisonment and probation for one year and six months with prison labor at the Suwon District Court Sungnam Branch Branch branch, and the probation period. The crime of this case was committed in this case. ② The crime of this case and the sexual assault of this case were committed against the defendant, who did not have awareness of illness at an open place, and the defendant appears to have been under the same mental disorder of this case without any specific treatment time, and ③ The defendant appears to have been under the influence of treatment and treatment of the defendant, such as memory, memory ability, etc., even if he had no mental disorder and other physical disorder.

Application of Statutes

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

Article 7(3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes, and Article 298 of the Criminal Act

1. Mitigation of mental disorders;

Articles 10(2) and 55(1)3 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. proviso to Article 21 (2) of the Act on the Protection of Children and Juveniles against Sexual Abuse who have not been ordered to complete a program (any special circumstance in which medical treatment and custody is necessary for a considerable period of time as a mental patient

1. An order for disclosure and notification;

Articles 49(1)1 and 50(1)1 of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Medical treatment and custody;

Article 2 (1) 1 of the Medical Treatment and Custody Act

Registration of Personal Information

Where a conviction becomes final and conclusive against a defendant, 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.

Reasons for sentencing

1. The scope of applicable sentences: Imprisonment for one year and three months to seven years;

2. Application of the sentencing criteria;

[Determination of Type] Sex Crime Group, Sex Offenses subject to the Age of 13, Type 3, Indecent Acts by compulsion

【Special Mitigation Elements 【Special Mitigation Elements】

[Scope of Recommendation] Imprisonment of 2 years and 6 months to 5 years (Mitigation)

3. Determination of sentence;

○ The instant crime was committed against a female under 12 years of age, and thus, considering the mental impulse that the victim sustained as a result, Defendant should be punished strictly. However, considering the fact that the Defendant is old, the Defendant was suffering from the crime of this case in a state of mental and physical disability due to the old, serious dementia, cerebral disability, etc., and led to the instant crime in a state of mental and physical disability, it is decided as per Disposition by leaving the lower limit of the sentencing criteria.

Judgment on the request for attachment order

1. Facts constituting a ground for requesting an attachment order;

A person who has been requested to attach an attachment order, despite the history of punishment for a sexual crime, has committed a similar crime, in addition to taking account of the background of the crime in this case, the Defendant’s environment, character and conduct, and distorted common sense about the sexual assault, is recognized as a habit of the sexual assault crime and is likely to recommit the sexual assault crime in the future.

2. Determination

The risk of recidivism of a sexual crime as prescribed by Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Criminal Offenders means that there is a lack of possibility of recidivism and that there exists a considerable probability that the person subject to an application to attach an electronic device may injure the legal peace by again committing a sexual crime in the future. The existence of recidivism of a sexual crime shall be objectively determined by comprehensively assessing various circumstances, such as the occupation and environment of the person subject to the application to attach an electronic device, the motive and means of the crime before and after the crime, the circumstances after the crime, and the outline of the crime. Such determination shall be based on the time of the judgment inasmuch as it is assumed in the future (see, e.g., Supreme Court Decisions 2010Do7410, 2010Do44420, Dec. 9, 2010). Meanwhile, the risk of recidivism of a specific criminal offender subject to medical treatment and custody, including the date on which the execution of an electronic tracking device is completed or an order to attach an electronic device is executed, and the risk of recidivism of medical treatment and custody.

In this case, the following circumstances acknowledged by the evidence duly adopted and investigated by the court, i.e., the crime of this case is based on the realization of the mental illness of the person who requested the attachment order, and the investigator prior to the request for the attachment order, have the burden of prudence to keep the person subject to the request for the attachment order, and the opinion that the attachment of the electronic tracking device is necessary to keep the person subject to the request for the attachment order is not necessary, and the person subject to the request for the attachment order cannot be regarded as a mental disability and sexual disorder, such as sexual intercourse, in the case of the person subject to the request for the attachment order, and the person subject to the request for the attachment order is the age of 64 years as of the date of the request for the attachment order and the treatment of the mental illness in the medical treatment and custody center is 15 years long, considering the age of the person subject to the request for the attachment order after the completion of the medical treatment and custody, it is difficult to conclude that the person subject to the request for attachment order, even after the completion of the treatment

Therefore, the request for the attachment order of this case is dismissed in accordance with Article 9(4)1 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders on the ground that it is not reasonable.

presiding judge, judge, full-time leaves

The number of judges

Judges Doo-leap