Facts
The Superior Court of the Canton of Aargau convicted appellant X. on 7 May 2015 of multiple attempted serious bodily harm, multiple simple bodily harm and multiple coercion to a custodial sentence of 3½ years and ordered an outpatient measure to be served concurrently. X. appealed against this judgment to the Federal Supreme Court, which on 12 January 2016 referred the matter back to the lower court for a new decision, as the principle of prosecution had been violated. In the remittal proceedings, the Superior Court convicted X. on 3 March 2016 of multiple simple bodily harm and multiple coercion to an unconditional custodial sentence of 2 years and to an outpatient measure to be served concurrently.
X. applied with his criminal appeal for the annulment of this judgment and a conviction to a suspended fine of 300 daily rates of CHF 130.- each. He also applied for the waiver of the imposition of an outpatient measure or, in the alternative, for the suspension of the custodial sentence in favour of a measure. The Office of the Attorney General of the Canton of Aargau waived the right to submit a statement, while the Superior Court did not comment. The Federal Supreme Court allowed the appeal in part, quashed the judgment of the Superior Court and referred the matter back to the lower court for a new decision.
Considerations
1. Principles of combined sentencing pursuant to Art. 49 para. 1 SCC
The Federal Supreme Court confirms in its decision the so-called concrete method for determining the uniformity of penalties in the context of combined sentencing. According to this method, a combined sentence pursuant to Art. 49 para. 1 SCC is only possible if uniform penalties are imposed for each individual offence. The mere abstract uniformity of the threatened sentencing ranges is not sufficient. Fines and custodial sentences are considered not uniform, as they constitute different types of penalties and differ in intensity and impact. This view corresponds to the prevailing doctrine and the previous case law of the Federal Supreme Court (cf. ATF 142 IV 265 para. 2.3.2; ATF 138 IV 120 para. 5.2).
2. Methodological approach to combined sentencing
Combined sentencing requires the court to determine the (hypothetical) individual sentences for each offence. A single sentence that combines all offences in an overall assessment is impermissible. Rather, the starting sentence for the most serious offence must be determined and then increased in accordance with the principle of cumulation. In doing so, the statutory maximum for the type of penalty must not be exceeded. The lower court did not comply with these methodological requirements, as it determined the type of penalty on the basis of a summary overall assessment of all offences without determining the individual sentences and examining their uniformity.
3. Criticism of the abstract method
The Federal Supreme Court rejects the so-called abstract method, which determines the uniformity of penalties on the basis of the sentencing ranges of the offences committed. Such a method would lead to results that are inconsistent with the system, in particular when forming combined custodial sentences from fines and custodial sentences or multiple fines. Moreover, it contradicts the clear wording of Art. 49 para. 1 SCC, which refers to the concrete individual sentences. The legislator has conclusively regulated the issue of concurrence in Art. 49 SCC and provided for combined sentencing only in the case of uniform penalties. A change to this…