(영문) 대구고등법원 2017.3.9.선고 2016노687 판결

In light of the various sentencing conditions of this case, the punishment imposed by the court below (a punishment of three years of imprisonment, 40 hours of completion of sexual assault treatment programs, 39 guards seized and 1.65g philophones, 450,000 won penalty) is too unreasonable (the defendant alleged in the appellate brief that he did not know the fact that H was a minor in the appellate brief, and that he did not purchase the sex, but did not purchase the money. However, the defendant revoked the above argument to the effect that he did not dispute the misunderstanding of facts on the first day of the trial of the trial and did not dispute only unfair sentencing for the reasons for appeal. The above argument of mistake of facts cannot be a legitimate ground for appeal, and even after ex officio examination, it does not seem that there was an error of mistake of facts as pointed out by the defendant)

2. Determination

Examining the various sentencing conditions of this case, the crime of this case was committed by the defendant after purchasing a large number of phiphones from his name in several times, and he administered and possessed them, and took them into account against H, a female juvenile under 15 years of age, by taking the phiphones into consideration, and purchasing sex. The crime of narcotics is highly likely to cause serious harm to society and thus requires strict punishment. After purchasing phiphones, the defendant went through medication to the juvenile under 15 years of age who is not physical and mental maturity, and thereby, H seems to have a high possibility of criticism. The defendant was sentenced to a suspended sentence of one year for violation of the Act on the Protection of Children and Juveniles against Sexual Abuse (Quasi-Indecent Act), and the defendant was subject to a suspended sentence of two years for a violation of the Act on the Punishment of Commercial Sex Acts against Sexual Abuse (the Act on the Protection of Children and Juveniles against Sexual Abuse).

On the other hand, the fact that the defendant reflects his mistake, and that the defendant has no record of being punished for a drug-related crime until before the transfer of the case is favorable to the defendant.

As above, comprehensively taking into account all the conditions of sentencing as shown in the records and arguments of this case, including the Defendant’s age, character and conduct, environment, family relationship, motive and background of the crime, method of the crime, and circumstances before and after the crime, etc., which are unfavorable or favorable to the Defendant, and the lower court appears to have sentenced to three years of imprisonment within the scope of recommended punishment (two to nine years of imprisonment) set in the sentencing guidelines, taking into account these factors of sentencing, and even if there are no special circumstances or changes in circumstances that could reduce the sentence of the lower court in the trial, it is acceptable that the sentence imposed by the lower court is within the appropriate scope of punishment in accordance with the Defendant’s liability, and it is not recognized that it is unfair because it is too unreasonable.

Therefore, the defendant's ground of appeal disputing unfair sentencing is without merit.

3. Conclusion

Thus, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since it is without merit.