2019Gohap260 Violation of Special Act on the Punishment, etc. of Sexual Crimes (Rape)

(injury), the punishment of sexual crimes, protection of victims, etc.

Violation of Law (Sameras and photographing), thief,

Residential Intrusion

2019Report11(Consolidated) Probation Order

A

Preliminarys (prosecutions, requests for probation orders), seating capacity (public trial)

Law Firm Han-han

Attorney Shin Jae-soo

May 31, 2019

A defendant shall be punished by imprisonment for ten years.

Seized evidence referred to in subparagraphs 1 through 8, 17, 19, and 20 shall be confiscated.

The defendant shall order the employment restrictions to institutions, etc. related to children and juveniles for five years.

Probation order shall be issued to a person who has requested probation order for three years, and matters to be observed in attached Form shall be imposed.

Criminal facts and facts constituting the probation order

【Criminal Facts】

The defendant and the respondent for probation order (hereinafter referred to as the "defendant") came to know the victim's address from December 2018 to the victim's personal broadcasting member of the victim C (the victim's 30 years of age) who is the individual broadcasting member of the individual broadcasting BJ (the defendant) in B, and became aware of the victim's name photograph.

1. Intrusion upon residence;

On February 28, 2019, 16:00, the Defendant: (a) directed the victim’s home by pretending the article on the phone of the post office in order to directly display the victim’s broadcasting; (b) passed the joint port of view following the person who prepared in advance before the victim’s residence in Seocho-gu Seoul, Seoul, and passed through the joint port of view; and (c) went through the joint port of view in front of the victim’s residence.

2. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

At around 12:30 on March 17, 2019, the Defendant: (a) was willing to rape the victim; (b) was able to prepare in advance the victim’s house and wait to enter the victim’s house; (c) 2:00 on March 17, 2019, a dangerous object (20cm and 8cm length) in front of the victim’s residence; (d) and Cheong tape and mixed sea; and (e) was 18:06 on the same day following the victim’s back, the Defendant continued to put the above excessive amount into the victim’s face when the victim intends to get out of the next floor; and (e) the Defendant intending to get out of the elevator, along with the victim’s face, died of the victim’s house. The Defendant entered the victim’s residence, saying, “The Defendant’s door is opened as soon as possible.”

Accordingly, the defendant, carrying dangerous things, raped the victim, and put the victim into the left-hand side of the 14-day medical treatment and the pelvis, etc.

3. Violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Kameras and photographing);

The Defendant, while rapeing the victim at the time and place specified in the foregoing paragraph (2), took a photograph of his cell phone camera using the victim’s cell phone.

Accordingly, the defendant taken the body of another person who could cause sexual humiliation or shame by using a camera, etc. against his will.

4. Larceny;

The Defendant, at the time and place mentioned in the above paragraph (2), raped the victim and stolen the victim’s cell phone owned by the victim in the amount of KRW 52,00,00 in cash, Samsung Card 1, Hyundai Card 1, CJwon Point Card 1, CJwon Point Card 30,000 in the market price with one resident registration certificate, and 1,050,00 in the market price, between the victim’s clothes and the victim’s clothes.

[Fact of Grounds for Probation Orders]

The Defendant is likely to recommit a sexual crime even after being released, in light of the background, method, and tendency of committing a sexual crime as stated in the facts constituting a crime.

Summary of Evidence

1. Defendant's legal statement;

1. Statement to C by the police;

1. Records of police seizure, each list of seizure, and photographs of seized articles;

1. CCTV-cap photographs;

1. A written diagnosis of injury;

1. Investigation report (as regards the strings of post offices found in the string of vehicles of a suspect, the strings of post offices), investigation report (as regards the cell phone photographs of cell phones, the surface of which is recorded by a suspect for rape of the victim);

1. The risk of recidivism in the judgment: The defendant is likely to recommit a sexual crime, taking into account the following circumstances, such as the evidence adopted and examined by this court and the character and conduct of the defendant, the environment, the motive and background of the crime of this case, the method and content thereof, and the situation before and after the crime.

① The Defendant did not have any record of having been punished for sexual crimes. However, the Defendant purchased a separate wind line equivalent to KRW 20 million for two months in order to attract interest of the victim against the appearance of the victim while viewing the Victim B’s personal broadcast, and sent it to the victim. As such, the Defendant committed the instant crime on the ground that there is no opportunity to send a separate wind line to the victim more closely-friendly with the victim, such as sending out a separate wind line to the victim due to economic difficulties due to the de facto absence of economic circumstances. The Defendant committed the instant crime. Although the Defendant was divided into the victim and E, and there was no direct face-to-face interview with the victim, the Defendant was aware of the victim’s address recorded in the selective compensationer, and then planned and executed the instant crime.

② The Defendant kept the victim’s face excessively and bound the victim’s grandchildren as tape, and taken the victim’s sexual intercourse with the Defendant using mobile phone cameras. In light of the foregoing, the Defendant seems to have a dynamic and distorted sexual perception toward women.

Application of Statutes

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

Article 319(1) of the Criminal Act; Articles 8(1) and 4(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes; Article 297 of the Criminal Act; Article 14(1) of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (the occupation of intrusion upon residence, the occupation of injury such as rape, the choice of limited imprisonment); Article 329 of the Criminal Act (the occupation of larceny and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be limited to the sum of the long-term punishments of each crime at the time of sale) provided for in the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes in the Judgment with the most severe punishment.

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

1. proviso to Article 16 (3) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes with Non-compliance Order (this shall not apply to cases where an order is issued to the accused for probation and completion of sexual assault treatment programs is imposed due to the matters to be observed,

1. Article 47(1) and Article 49(1) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes Exempted from an order to disclose or notify information, 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 (a) are difficult to readily conclude that the Defendant has a habit of sexual assault due to the absence of the same criminal record, and the Defendant’s personal information registration, probation order, and employment restriction order have an effect to prevent recidivism

In addition, considering the overall circumstances such as the disadvantage and expected side effects of the defendant's inflows due to the disclosure order and notification order, the defendant's age, occupation, family environment, social relationship, motive, means and results of the crime in this case, it is judged that there are special circumstances that the defendant's personal information should not be disclosed or notified.

1. An employment restriction order;

The main sentence of Article 56 (1) of the Act on the Protection of Children and Juveniles against Sexual Abuse

1. Reasons for sentencing prescribed in subparagraph 1 of Article 21-2, Articles 21-3 (1), 21-4 (1), 9-2 (1) 3 and 4 of the Act on Probation and Electronic Monitoring, etc. of Specific Criminal Offenders subject to the imposition of a probation order and matters to be observed;

1. Scope of applicable sentences under law: Imprisonment with prison labor for up to 10 years up to 44 years;

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

(a) A first crime: A crime in violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes;

[Determination of Punishment] In the event that the result of an injury to a sex offender has occurred, the type six (Rape, such as intrusion upon residence, special rape) shall be at least 13 years old.

[Special Emotional Convicts] Mitigation elements: Insignificant injury aggravation elements: Abruptal act or increase of sense of sexual shames of extreme morality.

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment of 8 years to 13 years

(b) Second offense: Theft;

[Determination of thief] Type 2 (General thief) for thief in general property

【Special Convicted Person】

[Recommendation and Scope of Recommendations] Basic Area, June-1 June

(c) Crimes of intrusion upon residence, violations of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof: No sentencing guidelines are set;

(c) Scope of recommending punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than eight years (in cases of concurrent crimes with crimes for which the sentencing criteria are not set, the lower limit of the scope of sentence in the sentencing criteria

(d) Scope of recommended sentences that are modified according to applicable sentences: Imprisonment with prison labor for not less than ten years (where the scope of sentences recommended by the sentencing criteria are inconsistent with the scope of applicable sentences in law, it shall conform to the scope of applicable sentences in law);

3. Determination of sentence: The crime of this case with 10 years imprisonment is committed by the Defendant, considering the victim’s personal broadcasting, leading the victim to the victim’s sentiment and directly meet the victim’s personal broadcasting, and was committed in the manner that the victim did not meet the victim, but failed to commit the crime. However, attempted to commit the second crime, thereby threatening the victim by using a deadly weapon, and committing sexual intercourse with the victim during which the victim was sexual intercourse with the victim, and the victim was stolen after photographing the victim’s sexual intercourse with the victim, and the crime is not very good in light of the motive, method, etc. of the crime. The victim appears to have been subject to considerable physical and mental shock due to the crime of this case. The defendant did not receive a letter from the victim, and the victim wants to punish the defendant. It is inevitable to punish the defendant with the responsibility corresponding thereto.

However, the Defendant has a deep variety of and reflects the Defendant’s mistake. The Defendant has no record of criminal punishment. The degree of injury inflicted on the victim is difficult to view that such circumstance is serious. Considering these circumstances favorable to the Defendant, the Defendant’s age, character and conduct, family relationship, motive, means and consequence of the crime, and other various sentencing conditions specified in the trial process of the instant case, including the circumstances after the crime, shall be determined as ordered by the order, comprehensively considering the following factors.

Registration of Personal Information

In a case where a conviction becomes final and conclusive with respect to a crime of violation of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes (Rape, etc.), the punishment of sexual crimes and the protection of victims thereof, a defendant becomes 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, and is obligated to submit personal information to the competent agency pursuant to Article 43 of the same Act. The period of registration of personal information of a defendant is 20 years in accordance with Article 45 (1) 2 and (2) of the Act on Special Cases concerning the Punishment, etc. of Sexual Crimes. In full view of the sex crimes which cause the registration of personal information and other crimes, the punishment of a sex crime which causes the registration of personal information, the severity and possibility of criticism of a sex crime, and the circumstances leading to concurrent crimes, it is determined that the period of registration of personal information is no longer necessary to be set less than the period according to the sentence.

The presiding judge and the deputy judge;

For judges:

Judges Gangseo-gu

A person shall be appointed.