Facts
The appellant, [A.] , entered Switzerland illegally in 2009. After the final rejection of her asylum application, she was given a deadline of May 15, 2012, to leave Switzerland. However, [A.] remained in Switzerland and has since been convicted twice of unlawful residence pursuant to Art. 115 para. 1 lit. b AuG.
The District Court of See-Gaster convicted [A.] again of unlawful residence on July 24, 2017, and sentenced her to an unconditional prison sentence of three months. The Cantonal Court of St. Gallen upheld the judgment on November 30, 2017.
[A.] requests that the judgment of the Cantonal Court be overturned and that she be punished with an appropriate fine of up to 90 daily penalty units of CHF 10.-- each. Alternatively, she requests that the case be referred back to the Cantonal Court for a new decision on the sanction and the allocation of costs.
Considerations
The appellant complains that the prison sentence of 90 days imposed by the lower court violates Art. 41 para. 1 SCC and the obligation to provide reasons as part of her right to be heard (Art. 29 para. 2 Cst.; Art. 3 para. 2 lit. c CrimPC).
The court must conduct a comprehensive evaluation of all essential circumstances. In addition to the circumstances of the case, the assessment must also take into account the defendant's previous life and reputation, as well as all other facts that allow valid conclusions to be drawn about the character of the offender and the prospects of their rehabilitation. A relevant prognostic criterion is, in particular, the criminal record.
The lower court considers that the appellant has a relevant previous conviction. She has already been found guilty twice of unlawful residence and has served an unconditional prison sentence of one month for this reason. Nevertheless, she stated in the first-instance and appeal proceedings that she would not leave Switzerland. Even the prison sentence already served for unlawful residence did…