Facts
By judgment of 14 November 2019, the Police Court of the Lausanne District convicted the accused of negligent grievous bodily harm (art. 125 SCC) and negligent violation of construction regulations (art. 229 SCC) to a fine of 300 day-fines at 30 francs per day, suspended for two years.
The accused appealed against this judgment. By judgment of 2 July 2020, the Criminal Appeal Court of the Vaud Cantonal Court amended the decision by reducing the fine to 180 day-fines at 30 francs per day, still suspended for two years. The cantonal court justified this reduction by applying the new art. 34 para. 1 SCC, which entered into force on 1 January 2018 and limits the maximum fine to 180 day-fines, and by considering that this provision was more favourable to the accused within the meaning of art. 2 para. 2 SCC (ComPurA mitior principle).
The Central Public Prosecutor's Office of the Canton of Vaud filed an appeal in criminal matters against the judgment of 2 July 2020, primarily seeking its reversal so that the accused's appeal would be dismissed and the judgment of 14 November 2019 would be upheld. The appeal was lodged on 5 May 2021 under case number 6B_1308/2020.
The facts established by the cantonal court are as follows: the accused, as foreman and site manager, ordered the use of a dump truck on a ramp whose gradient exceeded the operating limits in forward gear. He also overloaded the dump truck, causing it to overturn and seriously injuring a worker, C., who suffered fractures, a six-week coma and permanent sequelae. The accused was found guilty of negligence resulting in grievous bodily harm and a violation of construction regulations.
Considerations
The Federal Court first recalls that, pursuant to art. 47 SCC, the judge must determine the sentence based on the offender's culpability, taking into account his or her prior record, personal circumstances and the impact of the sentence on his or her future. Culpability is determined by the severity of the harm or danger to the legal interest, the reprehensibility of the act, the offender's motives and his or her ability to avoid the danger. These criteria apply both to the determination of the amount of the sentence and to the choice of its type.
The Federal Court confirms the case law according to which the choice of the type of sentence (fine or custodial sentence) must be made taking into account the culpability, the appropriateness of the sentence, its effects on the offender and his or her social situation, as well as its preventive efficacy. It rejects the appellant's argument that the judge should first determine a quantity of penalty units before deciding on the type of sentence. Such an approach would disregard the legal and case-law criteria applicable to the choice of the type of sentence. The Federal Court also emphasises that the application of art. 49 SCC (concurrence of offences) presupposes that the sentences are of the same type, which implies a separate assessment for each offence.
With regard to the ComPurA mitior principle (art. 2 para. 2 SCC), the Federal Court recalls that the new law applies to prior acts if it is more favourable to the offender. However, it is prohibited to combine the old and new law for the same set of facts. The comparison must cover all applicable provisions and lead to an overall more favourable result. In the present case, the cantonal court applied the old law to determine culpability and the new law to reduce the fine, which constitutes a violation of this principle.
The Federal Court notes that the Federal…