2015.02.03

2013 (A) 1127

Keishu Vol. 69, No. 1

Decision concerning a case wherein the court maintained the judgment in prior instance by which the court of prior instance quashed the death sentence handed down by the court of first instance and sentenced the accused to life imprisonment with required labor on the grounds that the sentence determined by the court of first instance through the proceedings with the participation of saiban-in (lay judges) was inappropriate

Case charged for breaking into a residence, and homicide on the occasion of robbery

Decision of the Second Petty Bench, dismissed

Tokyo High Court, Judgment of June 20, 2013

In the case in which the accused, who had previously been sentenced to imprisonment with required labor for 20 years for crimes including homicide and served out the sentence, was charged for the crimes of breaking into a residence and homicide on the occasion of robbery for killing one victim, the court of prior instance quashed the death sentence handed down by the court of first instance and sentenced the accused to life imprisonment with required labor, it is considered that the court of prior instance determined that the sentence determined by the court of first instance through the proceedings with the participation of saiban-in (lay judges) was unreasonable, in that the court of first instance placed too much emphasis on the existence of the accused's previous conviction that is not so strongly associated with the crimes charged in the present case, and concluded that it was difficult to find any concrete or persuasive grounds for sentencing the accused to the death penalty; consequently, the sentence chosen by the court of prior instance cannot be found to be unjust to the extent that it would amount to an extreme injustice if it were not quashed.

(There is a concurring opinion.)

Article 381, Article 397, paragraph (1), and Article 411, item (ii) of the Code of Criminal Procedure



Code of Criminal Procedure

Article 381

When an appeal to the court of second instance has been made on the grounds that a sentence is unreasonable, facts which appear in the case records and evidence examined by the court of first instance which are sufficient to show that the sentence is unreasonable shall be cited in the statement of the reasons for appeal.

Article 397

(1) When there are grounds as in the items set forth in the provisions of Article 377 through Article 382 and Article 383, the court shall, on a judgment, reverse the judgment made by the court of first instance.

Article 411

Even in absence of grounds as prescribed in the items of Article 405, the final appellate court may render a judgment to reverse the judgment of the court of first or second instance, on any of the following grounds when it deems that not doing so would clearly be contrary to justice:

(ii) The degree of punishment is seriously unfair;

The final appeals are dismissed.

Among the reasons for final appeal argued by the public prosecutors, the reason alleging violation of a judicial precedent in terms of the trial proceedings in the court of second instance is irrelevant in this case because the cited judicial precedent addresses a different type of case, and the rest, including the reason alleging another judicial precedent, are in effect assertions of inappropriate sentencing; the reasons for final appeal argued by the defense counsel, MIYAMURA Keita and SAKANE Shinya, are assertions of errors in fact finding; and none of these reasons for final appeal can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.

In light of the arguments made by the public prosecutors, we make a determination by this court's own authority with regard to the sentencing in the present case.

I. Outline of the case

1. Summary of the facts of the crimes charged in this case

The accused, for the purpose of robbing, broke into the residence of the victim (male aged 74) in the apartment building in Minamiaoyama, Minato-ku, Tokyo, via the unlocked entrance door, found that the victim was in apartment, resolved to kill him and rob him of money or goods, and with such intent to kill, the accused stabbed the victim in the neck with a stainless-steel all-purpose kitchen knife, thereby causing the victim to die of loss of blood due to damage to the left and right common carotid arteries caused by the stab wound of the neck.

2. Summary of the reasons why the court of first instance chose the death penalty

The court of first sentence which dealt with the case as a panel with the participation of saiban-in (lay judges) sentenced the accused to the death penalty for the reasons as summarized below.

The panel discussed the sentence to be given to the accused while taking into consideration the factors to consider when choosing the death penalty, which had been indicated in the judicial precedent, 1981 (A) No. 1505, judgment of the Second Petty Bench of the Supreme Court of July 8, 1983, Keishu Vol. 37, No. 6, at 609 (hereinafter referred to as the "1983 Judgment"), and the subsequent sentencing trends. Among others, the panel placed a particular emphasis on the following points in determining the sentence: [i] the accused had a firm intent to kill, and his manner of committing the killing and other aspects of the case were cruel and merciless, e.g. he killed the victim, who was unable to resist, with a single blow in order to achieve the purpose of robbing him; [ii] the consequence of what the accused did was extremely serious; and [iii] the accused had previously been sentenced to imprisonment with required labor for 20 years for crimes including homicide by which he took the lives of two people, and yet, it was only half a year after he had been released from prison that he took the life of the victim in the present case for the purpose of robbing the victim of money or goods. Even by carefully considering whether or not there are any extenuating circumstances on the part of the accused, the panel reached a conclusion that it had no choice but to sentence him to the death penalty.

3. Summary of the reasons why the court of prior instance quashed the judgment in first instance and sentenced the accused to life imprisonment with required labor

The court of prior instance quashed the judgment in first instance and sentenced the accused to life imprisonment with required labor for the reasons as summarized below.

The death penalty is the ultimate, severest punishment, and needless to say, this punishment should be applied with utmost care. Whether or not it is appropriate to hand down the death penalty should be determined while taking into consideration the factors to consider as indicated in the 1983 Judgment and making reference to the trends found from an accumulation of precedent cases, in a sense that these cases could provide materials to consult when assessing the degree of seriousness of a case. In the present case, as pointed out in the judgment in first instance, the accused had a firm intent to kill, his manner of committing the killing and other aspects of the case were cruel and merciless, and the consequence was extremely serious. However, the number of victims in the present case was one, and the accused cannot be definitely found to have had the intent to kill when he broke into the victim's residence and hence it cannot be said that the accused had premeditated the killing in advance or had resolved to kill from the beginning. Therefore, considering various circumstances regarding the accused except for his criminal record, it is difficult to conclude that the death penalty would be an appropriate choice. In most cases of homicide on the occasion of robbery in which a single person was killed and the death penalty was chosen as punishment for the perpetrator by placing an emphasis on the perpetrator's criminal record, there were such circumstances where a person, who was on parole after being sentenced to life imprisonment with required labor for the crime of homicide or homicide on the occasion of robbery, committed again a crime of homicide on the occasion of robbery which is similar to the crime that the person had previously committed, or where a person, who had previously been sentenced to imprisonment with required labor for a considerably long definite term that is comparable to life imprisonment with required labor, committed a crime of homicide on the occasion of robbery which can be assessed as being noticeably similar to the crime that the person had previously committed. In the present case, the previous conviction of the accused is imprisonment with required labor for a considerably long definite term that is comparable to life imprisonment with required labor, but the crime that the accused had previously committed cannot be assessed, according to the social standards, as being similar to the present crime of homicide on the occasion of robbery that he committed for gain. Furthermore, it is difficult to say that the accused obviously has no hope of being reformed and rehabilitated. In fact, it cannot be denied that the accused had a motivation for rehabilitation but whatever he tried went wrong due to his criminal record being an obstacle to keeping a job he had obtained, and in some aspects, he gave in to despair and ended up committing a crime again. Attention should be paid to these extenuating circumstances on the part of the accused when assessing his criminal record. Consequently, it is questionable to choose the death penalty as punishment for the accused while placing emphasis on his criminal record, and there is an error in the judgment in first instance for choosing the death penalty due to placing too much emphasis on the fact that the accused had previously taken the lives of people.

II. This court's determination

1. The accused, with a desire to gain quick money, broke into the victim's residence with a knife for the purpose of robbing, stabbed the victim, who was asleep, in the neck straight away and killed him outright for certain. The accused had a firm intent to kill when he found the victim, and killed the victim in a cruel and merciless manner as mentioned above. The present case is nothing short of a serious and malicious crime, and it is fully understandable for the victim's surviving family to have an extremely strong desire for the accused to be severely punished. Moreover, the accused had previously committed homicide, attempted homicide, arson of an inhabited building, etc. by stabbing his wife to death and setting fire to his residence to kill his two young children, due to which one of them was burnt to death. The accused served a sentence of imprisonment with required labor for 20 years, and only after half a year from being released from the prison, the accused committed the present crime again. The accused bears an extremely heavy criminal responsibility.

2. However, the exercise of the authority to impose a criminal penalty forcibly deprives the accused of his or her legally protected interest through the operation of state sovereignty. Unlike imprisonment with or without required labor, a fine and other criminal penalties, the death penalty is the ultimate punishment that is the severest of all criminal penalties and should be imposed only when it is truly an inevitable choice because it results in depriving the accused of his or her life forever. Therefore, as indicated in the 1983 Judgment and followed by this court's subsequent judgments, the death penalty should be applied with utmost care. In addition, the rule that the outcome of the trial should be fair to everyone is originally an essential requirement that is inherent in the very act of judging a person in a trial. When applying the death penalty, which is the ultimate punishment that is different from other criminal penalties as mentioned above, due consideration should be given to ensuring fairness. In the first place, since the circumstances to be taken into consideration when determining a sentence and the importance thereof differ from case to case, it is meaningless and inappropriate to compare the case in question with the precedent cases in detail. However, as mentioned above, from the perspective that the death penalty is the ultimate punishment and should be applied with utmost care and the perspective of ensuring fairness, it is absolutely necessary to examine in advance the factors to consider when choosing the death penalty and the degree of and grounds for the importance attached to each factor based on an accumulation of court decisions handed down in past cases through careful examination from the same perspectives, and in the process of deliberation, it is also absolutely necessary for the trial body to share the results of such examination as a common understanding and deliberate on the case with these results as the starting point. This equally applies to both a trial by a panel composed only of professional judges and a trial by a panel composed with the participation of saiban-in (lay judges).

During the process of deliberation, matters such as the nature of the crime, the motive, whether the crime was premeditated, the manner of committing the crime represented by the relentlessness and cruelty of the means of killing, the seriousness of the outcome represented by the number of victims killed, the surviving family's feelings of victimization, the impact of the case on society, and the perpetrator's age, criminal record and circumstances after committing the crime, would be taken up as the abovementioned factors to consider that are extracted from an accumulation of past court decisions. In the course of reaching a conclusion on the case, it is necessary to make a comprehensive assessment in light of the degree of and grounds for the importance attached to each factor, and deepen the discussion as to whether or not the death penalty is found to be a truly inevitable choice, from the perspective that the death penalty should be applied with utmost care and the perspective of ensuring fairness.

On that basis, in order to gain acceptance for the imposition of the death penalty, the concrete and persuasive grounds on which the trial body determined the death penalty to be an inevitable choice must be presented, and hence, the court of second instance should review whether or not such determination made by the court of first instance is reasonable.

3. When viewed from such standpoint, the court of first instance indicated circumstances of the same effect as those mentioned in 1. above, and hence the findings by the court of first instance themselves cannot be assessed as being erroneous. However, the following questions exist as to the grounds based on which the court of first instance determined the death penalty to be an inevitable choice.

First of all, as the circumstances on which a particular emphasis should be placed when determining the sentence, the court of first instance pointed out that "the accused had a firm intent to kill, his manner of committing the killing and other aspects of the case were cruel and merciless, and the consequence of what the accused did was extremely serious." Needless to say, the death penalty would be found to be an inevitable choice in some cases even when the number of victim killed is one, and as mentioned in 1. above, the present case is a serious and malicious case. However, in the present case, it is impossible to go so far as to definitely find that the accused had the intent to kill when he broke into the victim's residence, and therefore the present case must be distinguished from cases in which the perpetrator had premeditated the killing in advance or had the intent to kill when setting out to commit the crime. If the perpetrator had desired the death of the victim at an early stage and premeditated to kill, made preparation according to the premeditation and finally committed the killing, the case would pose a greater risk of violating the victim's life and demonstrate a greater disrespect for human life and thus the perpetrator's conduct would be more blameworthy, whereas, in the absence of such premeditation, it must be said that the blameworthiness from these aspects would be lessened.

In the present case, the accused cannot be found to have had such premeditation, and by making a comprehensive assessment of the factors regarding the accused except for his criminal record, it is difficult to conclude that the death penalty would be an inevitable choice.

As other circumstances which deserve a particular emphasis, the court of first instance pointed out that "the accused had previously been sentenced to imprisonment with required labor for 20 years for crimes including homicide by which he took the lives of two people, and yet, he took the life of the victim in the present case for the purpose of robbing the victim of money or goods." This statement is precisely an indication of the fact that the accused had the previous conviction of imprisonment with required labor for a considerably long definite term for homicide and other crimes. However, in the past cases in which a person who had previously been sentenced to imprisonment with required labor for a definite term committed homicide on the occasion of robbery by killing one victim after serving out his or her sentence, the death penalty was chosen in some cases, while life imprisonment for required labor was chosen in others. This suggests that in such cases where a person with a previous conviction of imprisonment with required labor for a definite term commits a crime again after serving out his or her sentence, the degree of blameworthiness of the commission of the subsequent crime must be determined on a case-by-case basis, while specifically examining matters such as the association between the previous crime and the subsequent crime and the process through which the same person commits a crime again. Looking at the present case from this standpoint, the nature of the present crime of homicide on the occasion of robbery that the accused committed for the purpose of his own gain and the process through which he committed the crime are not so strongly associated with the substance of the previous conviction of the accused on which the court of first instance placed emphasis, that is, the case in which the accused killed his wife after a quarrel and attempted to force his children to die with him in despair for their future. Furthermore, there is room for understanding that the accused, after serving out his sentence, started to work with a motivation for rehabilitation but was unable to keep his job due to his criminal record being an obstacle, and gave in to despair and ended up committing homicide on the occasion of robbery for which he has been charged in the present case. Thus, it is inappropriate to place too much emphasis on the existence of the accused's criminal conviction as mentioned above when determining the sentence to be given for the crime of homicide on the occasion of robbery in the present case.

As explained above, in the present case in which the death penalty cannot be found to be an inevitable choice in light of the various circumstances regarding the accused except for his criminal record, the court of first instance sentenced him to the death penalty while placing too much emphasis on the fact that he had previously been sentenced to imprisonment with required labor for a considerable long definite term for crimes including homicide, and hence, it is difficult to say that the court of first instance presented any concrete or persuasive grounds for determining the death penalty to be an inevitable choice. The court of prior instance, which quashed the judgment in first instance and sentenced the accused to life imprisonment with required labor, is considered to have determined that the abovementioned determination by the court of first instance is unreasonable and to have concluded that it was difficult in the present case to find any concrete or persuasive grounds for sentencing the accused to the death penalty. This court can also agree with such conclusion formed by the court of prior instance. Consequently, the sentence chosen by the court of prior instance cannot be found to be unjust to the extent that it would amount to an extreme injustice if it were not quashed.

Therefore, according to Article 414, Article 386, paragraph (1), item (iii), and the proviso to Article 181, paragraph (1) of the Code of Criminal Procedure, the decision has been rendered in the form of the main text by the unanimous consent of the Justices. There is a concurring opinion by Justice CHIBA Katsumi.

The concurring opinion by CHIBA Katsumi is as follows.

In relation to the court opinion, I would like to give my comments as follows.

1. First of all, the following points can be indicated with regard to the objective of the saiban-in (lay judge) system and the role of the court of second instance.

In the present case, the death sentence handed down by the court of first instance through the proceedings with the participation of saiban-in was quashed by the court of second instance, which instead sentenced the accused to life imprisonment with required labor. This may face a criticism that, even though the saiban-in system is said to have been introduced with the objective of having the people's common sense reflected in criminal trials, the introduction of this system would become meaningless if the judgment made by the court of first instance with the participation of saiban-in is later modified by the court of second instance composed only of professional judges.

The saiban-in system is designed to enable the people to participate and have their common sense reflected in criminal trials, thereby improving the people's understanding of and enhancing their trust in the judicial process (see Article 1 of the Act on Criminal Trials with Participation of Saiban-in (hereinafter referred to as the "Saiban-in Act")). Although there are objections to including capital cases in the scope of cases subject to the saiban-in system, opinions and feelings toward the death penalty, which is the ultimate punishment, vary among the people, and by enabling the people to participate in deciding on serious cases in which the applicability of this punishment becomes a question, it would be possible to improve the people's understanding and consolidate the democratic foundation for criminal justice. In this respect, the people's participation in the judicial process will have a meaning and value in such serious cases.

In the process of establishing the Saiban-in Act, no amendment was made to the conventional appeal systems, in terms of either fact finding or sentencing. The form of the people's participation in criminal trials adopted in Japan is embodied as a system wherein a decision rendered with the participation of saiban-in may also be reviewed and quashed by the court of second instance composed only of professional judges. More specifically, the lawmakers chose a system wherein a decision rendered with the participation of saiban-in would not always be evaluated as being right and flawless but if it involves any errors in fact finding or inappropriate sentence, the appeal court composed only of professional judges is authorized to quash it. The saiban-in system differs in this respect from many jury systems adopted in the United States, which ensure the people's participation in criminal trials by rejecting appeals regarding fact finding.

Nevertheless, in light of the objective of the people's participation in criminal trials, the court of second instance should more thoroughly pursue its role as a court in charge of reviewing the appropriateness of the findings and determination made by the court of first instance. The criteria for review to be applied to quash the decision of the court of first instance on the grounds of errors in fact finding should be limited to violation of the rule of logic or empirical rule, while in the case of inappropriate sentencing, the sentence chosen by the court of first instance should not be easily modified only because the decision in which the people's common sense is reflected through the participation of saiban-in is inconsistent with the sense of professional judges.

The saiban-in system aims to realize criminal trials in which the people and legal professionals, through exchange of the former's viewpoints and the latter's expertise, can develop mutual understanding and stimulate each other, thereby making good use of their own merits (see 2010 (A) No. 1196, judgment of the Grand Bench of the Supreme Court of November 16, 2011, Keishu Vol. 65, No. 8, at 1285). I believe that by accumulating cases in which the people participate in the judicial process, criminal trials which will reflect the people's common sense and be meaningful from a long-term perspective will be realized in the future.

2. The next question is the choice of the death sentence, which has raised an issue in the present case. On this point, I consider that since the death penalty is the severest of all criminal penalties and should be imposed only when it is truly an inevitable choice, this punishment should be applied with utmost care and giving due consideration to the perspective of ensuring fairness.

The court opinion indicated that in cases in which the choice of the death penalty could become a question, utmost care and fairness are required for applying this punishment, and on this premise, it stated that it is absolutely necessary to examine the factors to consider when choosing the death penalty and the degree of and grounds for the importance attached to each factor based on an accumulation of court decisions handed down in past cases, and it is also absolutely necessary for the trial body to share the results of such examination as a common understanding and deliberate on the case with these results as the starting point. What is meant by this statement may be as follows. In light of the nature of homicide as a criminal act and the substance of the death penalty as punishment to be imposed therefor, attention should first be paid to the number of victims killed in the case in the process of determining the sentence to be given for the criminal act of homicide that deprives the victim of his or her life, which is the victim's legally protected interest that has overwhelming importance, and this is unquestionably an important factor to consider when choosing the death penalty (nevertheless, it should be noted that it is inappropriate to regard the number of victims as an absolute criterion for choosing the death penalty, and the final choice should be made by taking into consideration other factors as well). Furthermore, the purpose (motive) of violating a person's legally protected interest, i.e., his or her life, generally relates to the degree of blameworthiness of such an act, and the aspect as to whether or not the crime was premeditated is directly linked with the degree of risk of violating the victim's life. The manner of violation of said legally protected interest (e.g. relentlessness and cruelty) could be a factor that necessitates the choice of the ultimate punishment. These points have been indicated by past court decisions. In addition, the surviving family's feelings of victimization, the impact of the case on society, and the perpetrator's age, criminal record and circumstances after committing the crime are also factors to be addressed. To what degree each factor should be considered to be important is closely related to extremely judicial determination and consideration concerning underlying elements of the criminal justice system, i.e. the characteristic of homicide as a criminal act and the substance of the death penalty as punishment therefor, and an answer to the question of to what degree each factor should be considered may necessarily be found from an accumulation of past court decisions created over a long period of time. What judges are required to do is something other than devising an equation while bearing in mind the sentencing trends or a sort of ratings in sentencing found from the precedent cases decided by judges, and drawing a conclusion by applying that equation to an actual case. Rather, judges are required to establish the results of examination on the degree of and grounds for the importance attached to each of these factors to consider, which have been thus found based on an accumulation of past court decisions, as a common understanding that gives the basis for determining a sentence to be handed down in an actual case, and to carry out deliberations with these results as the starting point. In this manner, the court opinion demands that the trial body as a whole carry out deliberations based on, as its common understanding, what could be described as the "essence of determination of a sentence" that is found from an accumulation of past court decisions in which the choice of the death penalty became a question, and it does not by any means state that the trial body should adhere to past court decisions.

This equally applies to both a trial by a panel composed with the participation of saiban-in (lay judges) and a trial by a panel composed only of professional judges (also equally to both a trial in the first instance and a trial in the second instance).

Based on such common understanding, a trial body composed with the participation of saiban-in is to 1) examine the abovementioned factors to consider with a focus on the criminal facts, etc. as found in an actual case, 2) specifically assess why and to what degree the perpetrator is blameworthy by taking all these factors into consideration, and 3) thereby form a conclusion as to whether or not to choose the death penalty, and in this process, saiban-ins' views and common sense, that is, the so-called sound sense of citizens, are expected to be embodied.

3. Furthermore, in the present case, the assessment of the accused's criminal record became an issue, with regard to which the following points should be noted.

(1) In giving the reasons for choosing the death penalty, the court of first instance referred to the existence of the accused's previous conviction, and explained that the accused should have reflected on his crime of taking the lives of two people and have developed a sense of the dignity of life, and yet, the accused committed a crime again by taking the life of a person, which suggests that the accused thought too little of human life and he deserves a strong accusation. In fact, looking at the circumstances in which the accused killed three people in total, he committed the killing quickly, without serious reasons, not only when killing the first two people in the previous case but also when killing the third person in the present case, and hence, the view that the accused is unable to escape being condemned as disrespecting human life is not beyond comprehension.

(2) Generally, a person's criminal record is treated as a factor for imposing a severer punishment for his or her subsequent crime, probably due to focusing on the increased blameworthiness in light of the circumstances of the subsequent crime in which the person committed a crime again without being reformed by the previous punishment or showing the result of rehabilitation by administration of punishment, and further focusing on the person's dangerous personality of disrespecting human life that is represented by his or her behavior of committing a crime without thinking. However, a person's criminal record varies in aspects such as the content of the previous crime, the distance in time between the previous crime and the subsequent crime, and the association between the two crimes regarding the nature of the crime, and when determining whether or not and to what degree the criminal record could be a factor for imposing a severer punishment, it is necessary to carefully consider these various circumstances. Such necessity increases when determining whether or not to choose the death penalty.

(3) In some past cases in which the death penalty was chosen for a person who killed one victim while taking into consideration the person's previous conviction for committing a killing in the past, the perpetrator committed crimes including homicide while on parole after being sentenced to life imprisonment with required labor for crimes including homicide and being imprisoned. In these cases, the perpetrator deserved a severe accusation and it is difficult to find hope for his or her rehabilitation because the perpetrator, while on parole after being sentenced to life imprisonment with required labor, committed a crime such as homicide on the occasion of robbery when he or she had yet to fulfill his or her criminal responsibility for his or her past serious crime but was only under temporary suspension of the punishment and expected to rehabilitate him/herself, and therefore the perpetrator was required to be deeply aware of such situation, and as a matter of course, he or she was under a strong warning not to committee a crime again. Accordingly, in such cases, it is possible to understand that the perpetrator's criminal record was treated as a factor for imposing a particularly severe criminal responsibility on the grounds that the perpetrator's potential for rehabilitation can hardly be recognized, and this treatment is natural from the perspective of enforcing criminal responsibility. Apart from cases in which these circumstances exist, the fact that the perpetrator had a previous conviction for the same or similar crime could be a factor to consider when choosing the death penalty, but in the course of assessing the degree of importance of this fact, it is necessary to closely examine the details, including the association between the previous crime and the present crime.

(4) With respect to the present case, it may be understandable to judge the accused as "having the tendency of disrespecting human life," comprehensively from the fact that the accused had been imprisoned for killing two people for short-sighted reasons and then committed the killing of one person for short-sighted reasons again. However, if too much emphasis is placed on this point as an important factor to consider when choosing the death penalty without sufficiently examining other factors including the association between the previous crime and the present crime, such attitude is questionable at the stage of choosing the death penalty. If, in the absence of a strong association between the previous crime and the present crime, the accused's criminal record is treated as an important factor for moving toward choosing the death penalty in the context of placing emphasis only on the accused's dangerous tendency of disrespecting human life, it would be equal to placing too much emphasis on the personality aspects of the accused as the perpetrator at the stage when the appropriateness of the choice of the death penalty should be examined focusing on the judgment on his criminal act itself, and such approach is also questionable. In the present case, the accused had committed the previous crime due to emotional conflict with his wife and despair for the future of his children. Looking at the motive and other aspects, the previous crime is not strongly associated with the present crime in terms of the nature of the present crime, which is homicide on the occasion of robbery committed for his own gain, as well as the process through which he committed the present crime. In terms of the degree of blameworthiness and the risk of violating the victim's life as well, I must say that there is a limit to placing emphasis on the accused's criminal record as an important factor to consider when choosing the death penalty.

Justice CHIBA Katsumi

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki