Facts

Parties: Appellant X. against the Public Prosecutor's Office of the Canton of Zurich

Court: Criminal Division of the Federal Supreme Court

Date: November 22, 2007

Facts:

  • At the end of January 2006, X. handed over 22 grams of pure cocaine in her Zurich apartment to A. in exchange for a cash payment of CHF 2,600.
  • The following day, she was arrested in possession of 940 grams of cocaine (purity 55% and 60%), which she had taken over from an unknown person at Zurich Main Station and intended to sell on behalf of this person for a commission of a maximum of CHF 20,000.
  • The District Court of Zurich found X. guilty of a qualified offense under the NarcA and sentenced her to 27 months in prison.
  • X. appealed, and the Higher Court of the Canton of Zurich sentenced her to 27 months' imprisonment, with the execution of 15 months suspended on probation for two years.
  • X. filed an appeal in criminal matters, which was dismissed by the Federal Supreme Court.

Considerations

The appellant objects exclusively to the sentencing. The previous instance imposed this under the new law because it allows for conditional imprisonment in the present case and is therefore more lenient for the appellant. This assessment is correct and is not contested by the appellant.

The new General Part of the SCC, which came into force on January 1, 2007, has retained the previously applicable principles of sentencing in Art. 47 para. 1 SCC. According to this, the judge imposes the penalty according to the culpability of the offender. He takes into account the previous conduct, the personal circumstances, and the effect of the penalty on the life of the offender. The assessment of culpability is specified in Art. 47 para. 2 SCC to the effect that it is determined according to the severity of the violation or endangerment of the affected legal interest, the reprehensibility of the conduct, the motives and objectives of the offender, and how far the offender was able to avoid the endangerment or violation according to the internal and external circumstances.

In the appealed judgment, the previous instance extensively justified the sentencing. It first weighed the objective and subjective components of the offense. The culpability of the offense was to be classified as significant. The appellant had accepted the large quantity of approximately 1 kilogram of cocaine and was willing to resell it due to the prospective commission of a maximum of CHF 20,000. She had diluted and portioned the narcotic and purchased a scale for this purpose. At the time of her arrest, she had already sold cocaine for CHF 2,600. According to the explanations in the appealed judgment, the fact that the appellant intended to use the prospective commission for the medical treatment of her older son living in the USA is only slightly mitigating in terms of sentencing, as it is not acceptable to endanger the health of numerous other people for this purpose by dealing in narcotics.

The previous…