(영문) 서울중앙지방법원 2019.2.15. 선고 2018고합715 판결

The defendant shall be ordered to receive probation from the defendant, to attend social service activities for 160 hours and pharmacologic treatment for 40 hours.

One smoked hemp district (No. 1 of the Seoul Central District Prosecutors' Office 2018 No. 7434) shall be confiscated.

567,500 won shall be additionally collected from the defendant.

The defendant shall be ordered to pay the amount equivalent to the above additional collection charge.

Reasons

Criminal facts

"2018 Highly 715"

1. Violation of the Narcotics Control Act;

On March 13, 2018, the Defendant purchased lsD 200,000 won in cash from D in front of the Gangnam-gu Seoul 'B' restaurant, Gangnam-gu, Seoul, even though he is not a narcotics handler.

2. Violation of the Act on the Control of Narcotics, etc.;

A. At around 00:01 on March 11, 201, the Defendant, along with E and F, put approximately 1g of marijuana into the tobacco pipe at the “H of the first floor of Mapo-gu Seoul Metropolitan Government G Building” office, attached a fire, and smoked marijuana jointly with E and F.

B. On May 10, 2018, the Defendant smoked marijuana in the “I” tobacco page in Vietnam, attaching a fire to water tobacco containing marijuana ingredients, and inhaled the smoke.

"2018 Gohap1214"

1. Purchasing marijuana;

A. On December 2, 2017, the Defendant decided to purchase marijuana from the sale of narcotics, etc. on the name of a policeman, and transferred KRW 130,000 to an unclaimed account known to him/her, and purchased marijuana in a manner of finding approximately 1g of marijuana, which was concealed in the house near the K University located in Seongdong-gu Seoul Metropolitan Government, at the house near the K University located in Seongdong-gu, Seoul.

B. On August 2, 2018, the Defendant, at around 22:00, intended to purchase marijuana from the sale of narcotics, etc. on his/her name (LIDM; hereinafter referred to as “M”) and transferred 1.70,000 won to the N (P) account, and purchased marijuana in a manner of finding 1g of the substitute drug, which is concealed by “M” from the stairs rail at the Handong-dong-gu Seoul Special Metropolitan City where the second floor of QP loan was over the 2nd floor of the Gyeonggi-gu.

C. On August 8, 2018, the Defendant, at around 23:00, decided to purchase marijuana from “M”, and purchased marijuana in a manner that finds approximately 2ggs concealed by “M” with a 3.4 million cash lock at the front of the Saton located in the Gwanak-gu Seoul Special Metropolitan City R, by finding out about 3.4 billion won.

2. Smoking marijuana;

A. On December 12, 2017, at around 13:00, the Defendant: (a) put about approximately 1g of marijuana purchased in the third floor of the shopping mall located in the Heung-gu Seoul Metropolitan City T on the 3rd floor; (b) putting it in the ice connected with the Pest branch; and (c) smoked the hemp in a way of spreading the smoke.

B. On August 3, 2018, around 23:00, the Defendant: (a) placed about 1g of marijuana purchased in front of the Dongjak-gu Seoul Metropolitan Government U on the heading vehicle of the Defendant’s operation, as described in paragraph 1(b), in the heading connected with the page, attached a fire; and (b) smoked marijuana in collaboration with E in a way of spreading the smoke with E.

C. On August 8, 2018, around 23:30 on August 23:30, 2018, the Defendant smoked with approximately 1g of marijuana in common with E in the vehicle administered by the Defendant’s operation parked in the above place.

3. Medication of phiphones.

At around 23:00 on August 2, 2018, the Defendant, even though not a person handling narcotics, administered phiphonephones in a manner of drinking back to a philopon, which is a psychotropic drug of the size of rice on a philopon (hereinafter referred to as “philopon”), from the vehicle operated by the Defendant, parked in the same place as that of Article 2-b).

4. Possession of marijuana;

Around August 9, 2018, the Defendant kept approximately 1,05 g of marijuana in the West of the Defendant’s operating vehicle parked in front of the Dongjak-gu Seoul Metropolitan Government U, and possessed it.

Summary of Evidence

[2018Gohap715]

1. Defendant's legal statement;

1. Each police suspect interrogation protocol concerning E and F;

1. A protocol of seizure and the list of search and seizure (3,34 pages of investigation records);

1. Each ACCUSIGN test date and each certification (investigative record 37,45 pages), each narcotics appraisal report (investigative record 125, 130, 134, 140, 192, 20 pages), the entry and departure status of each individual, notification of the result of legal chemical appraisal, and the monthly trend of narcotics;

[2018.7] 1214]

1. Defendant's legal statement;

1. Examination protocol of suspect E by the prosecution;

1. Statement of the police concerning V;

1. Records of seizure and the list of seizure (the investigative records of 88,89 pages);

1. Photographss, such as photographs of seized articles, cell phone text messages stored in mobile phones, written confirmation of cathographic tests, written assessment of narcotics, and monthly trends of narcotics;

Application of Statutes

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

Articles 58(1)3 and 3 subparag. 5, Article 2 subparag. 3 (a) of the Narcotics Control Act, Article 61(1)4 (a) and Article 3 subparag. 10 (a) of the Act on the Control of Narcotics, Etc., Article 30 of the Criminal Act (the point of smoking marijuana on March 11, 2018, August 3, 2018, and August 8, 2018), Articles 61(1)4 (a) and 3 subparag. 10 (a) of the Act on the Control of Narcotics, Etc., Article 61(1) of the Act on the Control of Narcotics, Etc., Article 61(1)4 (a), and Article 3 subparag. 10 (a) of the same Act on the Control of Narcotics, Etc., Article 61(1)4 of the same Act on the Control of Narcotics, Etc., Article 61(1)6(b) of the same Act on the Management of Narcotics, etc., Article 16(2) of the former Act on the Control of Narcotics, Etc.

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment on Narcotics, etc. (Aggravation of Concurrent Crimes) prescribed in the Act on the Control of Narcotics, etc. due to Purchase of ls with the largest ls from the former part of Article 37, Articles 38 (1) 2 and 50 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. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Probation, order to provide community service and attend lectures;

Article 62-2 of the Criminal Act

1. Confiscation;

The main sentence of Article 67 of the Narcotics Control Act

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act (refer to the grounds for calculating additional collection charges)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. Scope of applicable sentences under Acts: Imprisonment for two years and six months to twenty-two years; and

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

(a) The crime of violating the Act on the Control of Narcotics, etc. due to the purchase of ls;

[Determination of Types 3] Trade assistance, etc. in the trade of narcotics (narcotics, administrative item (a), etc.)

[Special Escopics] Reductions: Purchase or acceptance for medication, simple possession, etc., and cooperation in important veterinary affairs;

[Scope of Recommendation] Special Mitigation Zone, one year to three years of imprisonment

(b) Crimes of violation of the Act on the Control of Narcotics, etc. by medication of phiphones;

[Determination of Types 3 [Determination of Types ] Simple possession, etc. of Medications for Narcotics (Korean items (b) and (c)]

【Special Convicted Person】

[Scope of Recommendation] Basic Field, 10 months to 2 years

[Determination of Types] Trade Mediation, etc. for Narcotics Form 2 (mariju, Do administration (b) and (c), etc.)

[Special Escopics] Reductions: Purchasing or receiving for medication, simple possession, etc.

[Scope of Recommendation] Reduction Area, 8 months to 1 year and 6 months

(d) Scope of final recommendations according to the standards for handling multiple crimes: Two years and six years and six months from June of imprisonment (the lowest limit of the sentencing criteria for basic crimes is lower than the statutory minimum limit of the applicable sentences, and therefore the minimum limit of the applicable sentences under law shall be followed, and the five years, which is the maximum limit of the sentencing criteria for secondary crimes, shall be added up one year from 1/2 of the upper limit of the sentencing criteria for secondary crimes and six months from 1/3 of the upper limit of the sentencing criteria for third crimes);

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and consequence of the crime, degree of participation, circumstances after the crime was committed, etc. shall be determined as ordered by comprehensively taking into account various factors of sentencing as shown in the arguments in this case.

In light of the fact that each of the instant crimes was committed on March 13, 2018, each of the instant crimes: (a) the Defendant purchased, administered, smoked, and possessed marijuana over several occasions; (b) the likelihood of recidivism is not easy due to the characteristics of the relevant narcotics crime; and (c) the risk of recidivism is high; and (d) negative impact on society as a whole due to decliability, toxicity, etc.; and (b) the Defendant was released from emergency arrest on or around March 13, 2018; (b) the Defendant committed the instant crime of smoking under Article 2(b) of the instant case, as indicated in the judgment of the 2018 Gohap715 case; and (b), even after being charged with the 2018 Gohap715 case, the Defendant committed the instant crime of smoking under Article 1214(b), (2), (c), (3), (4), and (4) of the instant case, and (3) of the instant case.

The circumstances favorable to ○: The Defendant acknowledges all of the instant crimes and reflects his mistake, and shows the intention of active treatment, such as receiving outpatients for the prevention of recidivism.

The Defendant purchased ls for a simple medication purpose, and the purchased ls were entirely seized and were not distributed or used during the process of sale. The Defendant arrested around March 13, 2018, following the arrest of the Defendant at the investigative agency around March 13, 2018, and actively cooperated in arresting the ls and the ls in the provisions of Articles 1 and 2(a) of the ls and 2(a) as indicated in the judgment of the investigative agency. The Defendant did not have the same criminal record and did not have any criminal record exceeding the fine. The Defendant’s social relationship seems relatively clear, such as the Defendant’s family member wanting to take the Defendant’s preference against the Defendant.