(영문) 광주지방법원 2020.2.7.선고 2019고합471 판결

The defendant shall be put on probation for one year and shall be ordered to take a sexual assault treatment program for 40 hours. The defendant shall be ordered to put an employment restriction on the defendant in a child or juvenile-related institution, etc. and welfare facilities for disabled persons for three years.

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

Reasons

Criminal facts

1. The crime committed on June 11, 2019;

On June 11, 2019, the defendant and the respondent for attachment order (hereinafter referred to as the "defendants") used the victim's her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her

2. The crime committed on June 13, 2019;

At around 07:30 on June 13, 2019, the Defendant discovered the victims within the city bus E, which passed through the bus stops of the town in Seo-gu, Seo-gu, Seo-gu, Seo-gu, Gwangju, and used the victim's tur with the victim's own hand.

3. The crime committed on June 14, 2019.

On June 14, 2019, at around 07:50, the Defendant discovered the victims within the city bus E, which passed the bus stops of the Songwon High School, Seo-gu, Seo-gu, Seo-gu, Gwangju, and used the victim's tur with the victim's own hand.

Accordingly, the defendant committed indecent acts by force against the victim who is a child or juvenile on a total of three occasions.

Summary of Evidence

1. Defendant's legal statement;

1. Statement made by the police in relation to D;

1. A list of 112 reported cases, a note prepared by the victim, and an investigation report (including No. 13 of the evidence list, attached documents);

Application of Statutes

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

Article 7(3) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 298 of the Criminal Act, Selection of Imprisonment

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes with punishment prescribed in the Act on the Protection of Children and Juveniles against Sexual Abuse of Children and Juveniles against Sexual Abuse of June 14, 2019 with the highest penalty)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered in favor of the reasons for sentencing)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following factors shall be considered as being favorable for sentencing)

1. Probation;

Article 21(4) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Order to attend lectures;

The main sentence of Article 21(2) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Exemption from an order for disclosure and notification;

In full view of the following circumstances: (a) the proviso to Article 49(1) and the proviso to Article 50(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse (the fact that there is no history of punishment for the sex offense of the Defendant; and (b) the registration of personal information of the Defendant and the participation in the sexual assault treatment program alone appears to have the effect of preventing recidivism by the Defendant; (c) the Defendant’s age, occupation, family environment, social relationship; (d) the details and circumstances of the instant crime; (e) the method and consequence of the instant crime; and (e) the benefits expected by the disclosure order or notification order; and (e) the effect of the disclosure order or notification order; and (e) the disadvantages

1. A crime of paragraph (1) at the time of issuing an employment restriction order or selling: the main sentence of Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse, Article 2 of the Addenda to the Welfare of Disabled Persons Act (Act No. 15904, Dec. 11, 2018); the main sentence of Article 59-3 (1

Act on the Protection of Children and Juveniles against Sexual Abuse; the main sentence of Article 56(1) of the Act on the Protection of Children and Juveniles against Sexual Abuse; Article 59-3(1) of the Welfare of Persons with Disabilities Act

1. The grounds for sentencing: Imprisonment with prison labor for a year to June 22;

2. Scope of recommended sentences according to the sentencing criteria;

(a) First offense (Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse, listed in paragraph (3) at the time of sale);

[Determination of Punishment] The general standard of the crime of indecent act by compulsion (the subject of the age of 13 or more) shall be prescribed on the basis of a sex crime (the second-class punishment) by blood relatives, indecent act by indecent act such as residential intrusion/special indecent act by compulsion.

[Special Convicts] Reductions: Non-Punishments

[Recommendation and Scope of Recommendation] Reduction Area, one year to two years [including indecent acts by deceptive means and force against juveniles (including indecent acts by indecent means and force against juveniles) are included in the two types, but the upper and lower limits of the scope of sentence shall be reduced to 2/3];

(b) Second crime (Violation of the Act on the Protection of Children and Juveniles against Sexual Abuse as referred to in paragraph (2) at the time of sale);

[Special Convicts] Reductions: Non-Punishments

[Recommendation and Scope of Recommendation] Reduction Area, one year to two years of imprisonment (including indecent acts by deceptive means and force against juveniles shall be included in two types: Provided, That the maximum and minimum range of sentence shall be reduced to 2/3). at the third crime board, violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Indecent act) as stated in paragraph (1) of this Article is included in the third crime board.

[Special Convicts] Reductions: Non-Punishments

[Recommendation and Scope of Recommendation] Reduction Area, one year to two years [including deceptive and indecent acts by compulsion of juveniles (including deceptive and indecent acts by force) are included in two types, but the upper and lower limit of the scope of sentence shall be reduced to 2/3];

(d) Scope of recommendations according to the standards for handling multiple crimes: One year to three years (the upper limit of the first crime + the upper limit of the second crime + 1/2 of the upper limit of the third crime + 1/3 of the upper limit of the third crime);

3. Determination of sentence;

The Defendant committed an indecent act on three occasions in the bus using her mhym. The Defendant committed an indecent act on the same victim several occasions over several days, and accordingly, the victim, who is a child or juvenile, seems to have been suffering from a considerable sense of sexual humiliation. The Defendant’s criminal liability is not easy.

However, under the favorable circumstances such as the defendant's age, character and conduct, family relationship, motive, means and consequence of the crime, and circumstances after the crime, etc., the punishment as ordered shall be determined by comprehensively taking into account the following factors: (a) the defendant recognized the crime; (b) the degree of indecent conduct is relatively excessive; (c) the victim does not want the punishment of the defendant; and (d) the victim does not want the punishment of the defendant; and (e) the fact that there is no record

Where a judgment of conviction becomes final and conclusive against a defendant who has registered personal information, 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.

Personal information shall be submitted to the competent agency.

Judgment on the request for attachment order

1. Summary of request;

Since the defendant has committed sexual assault against a minor under the age of 19 on at least two occasions and is likely to recommit sexual assault, it is necessary to attach an electronic device.

2. Determination

A. The risk of recidivism of a sexual crime under Article 5(1) of the Act on the Probation and Electronic Monitoring, etc. of Specific Offenders means that the possibility of recidivism is insufficient solely on the basis of the possibility of recidivism, and that there is a probable probability that the person requesting the attachment order may injure the legal peace by again committing a sexual crime in the future. The existence of the risk of recidivism of a sexual crime ought to be objectively determined by comprehensively assessing various circumstances, including the occupation and environment of the person requesting the attachment order, the conduct prior to the crime, the motive and means of the crime, the circumstances after the crime, and the outlines (see, e.g., Supreme Court Decision 2010Do7410, Dec. 9, 2010).

B. In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is difficult to readily conclude that the evidence submitted by the prosecutor alone poses a risk of committing any sexual crime in the future to the extent that the attachment of an electronic tracking device is necessary.

1) The Defendant has no record of criminal punishment, resulting from the same crime, and there is no record of criminal punishment. In addition, as a result of the evaluation of the degree of risk of recidivism (KSOAS) conducted by the Defendant, the adult recidivism risk is at the intermediate level of 10 points, and the degree of sexual assault coverage is at the average male students (2.7) and lower than 1.79 points.

2) In light of the Defendant’s medical history, relationship between family members, background and method of the instant crime, etc., it seems that the Defendant’s registration of personal information against the Defendant, and employment restriction order alone would have the effect of preventing recidivism.

C. 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 without merit.