The case finding that there is a risk of recidivism

On May 24, 197, the defendant was sentenced to three years of habitual larceny at the Daegu District Court on September 20, 1980, and was released from prison on September 20, 1980 and was found to have habitually stolen articles by intrusion upon another's residence three times only for six months. In full view of the character, conduct, intelligence and environment of the defendant, or motive, means, and consequence of the crime, the defendant is likely to repeat the crime.

Article 5 (2) 2 of the Social Protection Act

Defendant

Prosecutor and Defendant

Daegu District Court (81 High Court Decision 200, 81 High Court Decision 32)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

The ninety days of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

A person who is subject to protective custody shall be punished by seven years.

The gist of the grounds for appeal by the prosecutor is that the court below dismissed the request for protective custody by misunderstanding the legal principles as to the risk of recidivism, and the summary of the grounds for appeal by the defendant was in a state of mental and physical disorder under the influence of alcohol at the time of the crime, even though the defendant was under the influence of alcohol at the time of the crime, the court below affected the judgment, and it was unfair that the court below's sentencing against the defendant was too unfair because the habitual nature was recognized, and there was no specific occupation as a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and there was no danger of recidivism when comprehensively judging the means, method, and circumstances after the crime.

First, we judge the grounds for appeal by the defendant.

It is clear that the defendant was not in a state of mental disorder under the influence of alcohol at the time of the crime of this case.

However, in light of all the circumstances shown in the records and pleadings, such as the Defendant is still young, and the amount of damage caused by the instant crime is not much high, and the depth of his mistake is divided, the sentencing of the lower court is deemed unfair because it is recognized that the sentencing of the Defendant is too unreasonable. In this regard, the Defendant’s appeal is justifiable.

The following grounds for appeal are examined by prosecutors.

According to the evidence duly examined and adopted by the court below, the defendant was sentenced to three years of imprisonment with prison labor for habitual larceny at the Daegu District Court on May 24, 197 and was sentenced to a suspended sentence for 8 months in September 20, 1980 (the period of suspended sentence for 1976 July 19, 1976, and the period of suspended sentence becomes effective). It is clear that the court below committed habitual theft by intrusion upon another person's residence over 3 months in the date of suspended sentence and 6 months, and considering the character, intelligence and environment of the defendant, or motive, means, result, etc. of the crime, it is recognized that the defendant is in danger of recidivism. Thus, the court below dismissed the defendant's request for a protective custody under the Social Protection Act, which affected the judgment by misapprehending the legal principles of the Social Protection Act, which affected the prosecutor's appeal.

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is judged again after pleading.

On May 24, 1977, the Defendant was sentenced to three years of habitual larceny at the Daegu District Court, and was in prison in a Cheongju prison on September 20, 1980, and was released from prison on September 20, 1980 (the prison to the end of the suspension of execution until the end of the period of suspension of execution for two years in July 19, 1976) and was sentenced to a violation of the Punishment of Violences, etc. Act in the same court Kimcheon- supported by the same court on July 19, 197, and was conspired with Nonindicted

1. On March 9, 1981: around 00, at the time of the victim non-indicted 2's house located in Daegu-si (hereinafter omitted) in Daegu-si (hereinafter referred to as "non-indicted 1"), Non-indicted 1 reported to the network, and the defendant abused 400 won in cash owned by the victim, who intruded into the above room through the entrance, and was in the wall of the wall.

2. On November 19 of the same month: at around 00, at the same method as in paragraph (1) of the same Article, the victim’s intrusion into the lower house of Nonindicted 3 located in the same Gu (hereinafter omitted) and cut off the amount equivalent to KRW 6,000 in the cash owned by the victim of the new salivium located in the wall and KRW 5,000 in the ginseng market price;

3. On 14. 19th of the same month: around 00, in the same manner as in paragraph (1) of this Article, the victim’s cash 1,540 won owned by the victim who intrudes into the house of Nonindicted 4 located in the same Gu (hereinafter omitted) shall be stolen and shall be at risk of recidivism.

The remainder of the facts in the facts of the ruling excluding the previous conviction, habitualness, and the danger of recidivism;

1. Statement corresponding thereto made by the defendant in court;

1. Each protocol of suspect suspect interrogation prepared by a prosecutor and judicial police officer regarding the accused prepared for handling business, and statements corresponding thereto;

1. Each statement made with respect to Nonindicted 4, 3, and 2, which is prepared by the judicial police officer in charge of handling affairs, and each statement corresponding thereto;

1. Records of seizure prepared by a judicial police officer to deal with affairs, which correspond thereto, may be recognized by taking into comprehensive account records; and

The finding of the previous convictions

1. Statement corresponding thereto made by the defendant in court;

1. On the card of investigative data of the accused drawn up by the third chief of the Public Security Headquarters, with a statement corresponding thereto:

point of habitualness in the holding:

As can be identified by the previous conviction and the criminal facts of this case, the point where the same kind of crime is being repeated in a short period, and the risk of recidivism in the judgment through the means and methods thereof can be recognized by the motive, means, results, and character, behavior, intelligence, environment, etc. of the judgment and the crime of this case. Therefore, the facts of the judgment are sufficient to prove.

Since the court below's decision-making is based on the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 5-4 (1) of the Criminal Act, Article 331 (2) and (1) of the Criminal Act, Article 35 of the Criminal Act provides that the defendant is subject to the decision-making prior to the decision-making of the defendant, the defendant is subject to the restriction of the proviso of Article 42 of the same Act, and the defendant is subject to repeated crime according to the restriction of Article 42 of the same Act, and there are extenuating circumstances as stated in the above reasons for reversal. Thus, the defendant shall be punished by imprisonment with prison labor for two years within the scope of the term of punishment reduced by discretionary mitigation pursuant to Article 53 and Article 55 (1) 3 of the same Act, and the defendant shall be punished by imprisonment with prison labor for 90 days within the period of detention before the court below's decision-making in accordance with Article 57 of the same Act, and the requester for reduction of punishment is a person who is recognized habitually due to several criminal facts, and has a risk of recidivism.

It is so decided as per Disposition for the above reasons.

Judges Ahn Yong-chul (Presiding Judge) (Presiding Justice)