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(영문) 서울고등법원 2018.09.05 2018노1584
강도상해
Text

The defendant's appeal is dismissed.

Reasons

1. The summary of the grounds for appeal (unfair sentencing) sentenced by the court below is too unreasonable. The punishment sentenced by the court below (3 years and six months of imprisonment) is too unreasonable.

2. Considering the unique area of sentencing of the first instance that is respected under the principle of trial priority and the principle of direct determination under the Criminal Procedure Act, and the ex post facto core nature of the appellate court, the first instance sentencing judgment exceeded the reasonable scope of discretion in light of the following factors: (a) the conditions of sentencing specified in the process of the first instance sentencing hearing and the sentencing criteria, etc.

In light of the records newly discovered in the course of the appellate court’s sentencing hearing, it is reasonable to file an unfair judgment of the first instance court, only in cases where it is deemed unfair to maintain the sentencing of the first instance court as it is for the court to judge the sentencing of the first instance court.

Unless there exist such exceptional circumstances, it is desirable to respect the sentencing of the first instance judgment (see Supreme Court Decision 2015Do3260, Jul. 23, 2015). The circumstance favorable to the Defendant is that: (a) the Defendant appears to have committed the instant crime while making a confession; (b) the Defendant was aware from the beginning that he/she did not have inflicted any injury on the victim F; (c) the Defendant was aware that he/she was trying to steals the goods of the victim; (d) the victim E returned the damaged goods to the victim E; and (e) the degree of injury suffered by the victim F is relatively heavy.

However, the crime of this case is an injury inflicted by the defendant to escape from arrest after theft of another person's property, which constitutes robbery, and thus, the crime is highly serious, and the defendant has a record of criminal punishment several times, such as four times of punishment for larceny, etc., which is disadvantageous to the defendant.

In addition to the above circumstances, the records and arguments, such as the defendant's age, sexual conduct, environment, circumstances after the crime, and circumstances after the crime, are revealed.

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