Defendant

Defendant

Lee Nam-soo

Attorney Lee Jin-bok (National Assembly)

Seoul Southern District Court Decision 2009Da3399 Decided January 6, 2010

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

The Defendant, at the time of committing the instant crime, was subject to probation and regular indictment by the probation office at the time of committing the instant crime, and thus there was no room for committing the instant crime. However, the lower court found the Defendant guilty of all the instant charges by believing only Nonindicted 2’s statement without credibility. Therefore, the lower court erred by misapprehending the facts and adversely affecting the conclusion

B. Unreasonable sentencing

In light of the fact that the defendant's health is not good, the sentence of imprisonment (two years of imprisonment) of the court below is too unreasonable.

2. Determination

A. Error of mistake

The following circumstances acknowledged by the evidence duly adopted and examined by the court below and the court of first instance, i.e., ① Nonindicted 2, a public offender, consistently stated from the investigative agency to the court of original trial that he administered narcotics with the Defendant; ② Nonindicted 2, a person who sold narcotics, the timing and place of medication, the storage condition of narcotics, and the person who administered narcotics together with the Defendant; ② Nonindicted 2, a separate relationship between the Defendant and the Defendant (this refers to the Defendant’s statement to the probation officer) such as job arrangement for the Defendant; ③ Nonindicted 3, a public offender, stated in the court of first instance that “it was the same as the Defendant at the time of administration, although it was impossible to accurately memory the Defendant’s narcotics; ③ Nonindicted 3, a criminal suspect, was convicted of having been indicted for suspicion of having performed narcotics with the Defendant; ④ Nonindicted 4, a public offender, also stated that he purchased the narcotics together with the Defendant’s statement that he would have made at the time of administration.”

On the other hand, the defendant's statement contrary to this is inconsistent with the statement of non-indicted 3 (the defendant stated that the investigative agency did not have any way to face with the non-indicted 3, but the non-indicted 3 stated that the defendant was sent at the court of first instance for at least 10 years at the same time at the court of first instance) and the inquiry results on the Incheon probation Office of the court of Incheon (the defendant was subject to the prosecutor's office in the statement of grounds for appeal and the probation officer was at the third trial of the court of first instance at the time when the probation office was absent, but it is difficult to believe that the defendant was present at the Incheon probation office five years at the Incheon probation office, and the fact that the defendant was subject to the prosecutor's statement at the court of first instance at the court of Incheon was not believed in light of the statement of non-indicted 2, etc. In addition, the inquiry results on the Incheon probation office's ingredients at the court of first time during the period of the facts charged at issue and the result of the prosecutor's investigation at the probation office on the above.

Therefore, the above assertion by the defendant and the defense counsel is without merit.

B. Unreasonable sentencing

In full view of the following factors: (a) the Defendant committed the instant crime without any reflection even though he/she had been subject to probation during the period of suspension of execution seven times of punishment for the same crime; (b) the frequency of the instant crime reaches 21 times, and the quality of the instant crime is not less than that of the crime; and (c) the harmful effects of the instant drug crime on society; (d) the motive and age of the Defendant’s medication, character and conduct, home environment, and circumstances before and after the instant crime, the sentence imposed by the lower court is too unreasonable.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Donman (Presiding Judge) Kim Jong-chuln