Facts

By judgment of 24 November 2015, supplemented on 30 November 2015, the Criminal Court of the district of Lausanne found the accused guilty of several offences, including qualified simple bodily harm, forgery of goods in the course of a trade, breach of the obligation to keep accounts, breach of a maintenance obligation, breach of trademark law in the course of a trade, unfair competition, simple breach of road traffic rules and driving a motor vehicle despite refusal, withdrawal or prohibition of the driving licence. The authority imposed a custodial sentence of 24 months (12 months unconditional and 12 months suspended for 5 years), a fine of 45 day-fines at 30 francs per day (15 days unconditional and 30 days suspended for 5 years), partially cumulative with a previous fine of 15 day-fines at 50 francs per day, as well as a fine of 800 francs. In the event of culpable non-payment of the fine, a substitute custodial sentence of 8 days was set. The previously granted suspension was revoked and the execution of the fine was ordered.

By judgment of 19 May 2016, the Criminal Appeal Court of the Vaud Cantonal Court partially allowed the appeal lodged by the accused. It varied the judgment of 24 November 2015 by acquitting the accused of the charge of unfair competition, but upheld the other counts of guilt and the sentences imposed, the fine being declared cumulative not only with that imposed on 21 September 2011, but also with those imposed on 1 November 2011 and 21 August 2012.

By judgment 6B_984/2016 of 13 September 2017, the Federal Supreme Court allowed the accused’s criminal appeal and quashed the judgment of 19 May 2016 for lack of reasoning regarding the nature and amount of the sentences imposed, as well as for violation of the right to be heard concerning the refusal of full suspension.

By judgment of 8 March 2018, the Criminal Appeal Court of the Vaud Cantonal Court again partially allowed the appeal lodged by the accused. It varied the judgment of 24 November 2015 by acquitting the accused of the charges of unfair competition and breach of the maintenance obligation, but upheld the other counts of guilt. It imposed a custodial sentence of 20 months (8 months unconditional and 12 months suspended for 5 years), a fine of 45 day-fines at 30 francs per day suspended for 5 years, partially cumulative with previous fines, as well as a fine of 800 francs. The substitute custodial sentence in the event of culpable non-payment of this fine was set at 8 days. The previously granted suspension was also revoked.

The accused lodged a criminal appeal against the judgment of 8 March 2018, seeking its variation so that he be sentenced only to a fine equal to or less than 360 day-fines, with suspension. In the alternative, he requested the quashing of the judgment and referral of the matter back to the lower authority for a new decision, while applying for legal aid. The Federal Supreme Court allowed the appeal, quashed the judgment under appeal and referred the matter back to the cantonal authority for a new decision.

Considerations

The Federal Supreme Court first recalls that, pursuant to art. 41 SCC, a combined sentence in case of concurrence of offences is only possible if the sentences envisaged are of the same type. Consistent case law considers custodial sentences and fines not to be sanctions of the same type. Thus, where several offences must be punished, the judge must first determine for each of them the nature of the sentence to be imposed. Only sentences of the same type may then be aggregated into a combined sentence under art. 41 SCC.

In the present case, the cantonal authority directly imposed a single sentence combining a custodial sentence and a fine, without following the statutory method. It did not first determine a base sentence for the most serious offence, nor did it examine for each offence the nature of the sentence to be imposed. This approach is contrary to case law, which requires prior determination of hypothetical sentences for each offence before any aggregation. The Federal Supreme Court emphasises that the choice between a custodial sentence and a fine must be duly reasoned, in accordance…