Lifelong occupational ban for distribution and possession of child pornography confirmed despite mitigating factors

Facts

The appellant was convicted by the District Court of March on 13 October 2022 of multiple counts of pornography under Art. 197 para. 1 in conjunction with para. 4 sentence 2 SCC (distribution of pornographic material depicting actual sexual acts with minors) and Art. 197 para. 1 in conjunction with para. 5 sentences 1 and 2 SCC (possession of pornographic material depicting sexual acts with children and animals). He was sentenced to a suspended fine of 120 daily rates of CHF 130 each and a fine of CHF 3,900. A lifelong occupational ban was not imposed. The Public Prosecutor’s Office of the Canton of Schwyz appealed against this judgment, while the appellant filed a cross-appeal.

The Criminal Chamber of the Cantonal Court of Schwyz confirmed in its judgment of 14 November 2023 the conviction for multiple counts of pornography under Art. 197 para. 1 in conjunction with para. 5 sentences 1 and 2 SCC as well as the suspension of the fine, the probation period, the fine, the confiscation and destruction of the seized items, and the procedural costs. It also convicted the appellant of multiple counts of pornography under Art. 197 para. 1 in conjunction with para. 4 sentence 2 SCC and sentenced him to a fine of 120 daily rates of CHF 90 each, a fine of CHF 2,700, and a lifelong occupational ban. The first-instance procedural costs were also imposed.

The appellant filed an appeal in criminal matters seeking partial annulment of the judgment. He requested a reduction of the fine to a maximum of 90 daily rates of CHF 90 each, the waiver of the connecting fine, and the lifelong occupational ban based on Art. 67 para. 4bis SCC, as well as a reallocation of the cost and compensation consequences in his favour.

Considerations

1. Sentencing and arbitrary assessment complaint The appellant alleged incorrect assessment of the objective culpability, arbitrary determination of the facts, and a violation of Art. 47 SCC due to the non-consideration of his confession and lack of remorse. The Federal Supreme Court reviewed the lower court’s assessment of the facts pursuant to Art. 97 para. 1 FSCA and found that an arbitrary assessment complaint may only be raised in cases of obvious incorrectness or legal error. The lower court had qualified the appellant’s culpability as “just barely minor” and set a base sentence of 60 daily rates. The Federal Supreme Court noted that the lower court had considered the dissemination of the material on the internet as particularly serious, as the files were uncontrollably and permanently accessible. It also took into account as aggravating factors that the victim appeared to be significantly under 14 years of age in one image and that the appellant had initially trivialised his actions. His confession was not considered mitigating, as it did not facilitate prosecution and did not convey genuine remorse. The sentencing was deemed compliant with federal law, as the lower court had considered the relevant criteria under Art. 47 SCC and had not exceeded its discretion.

2. Combination principle and aggregate sentencing The lower court set a hypothetical sentence of 100 daily rates for the possession of child and animal pornography and applied the combination principle under Art. 49 SCC, resulting in an aggregate sentence of 150 daily rates. The appellant complained of a violation of the combination principle, as the sentence for possession was higher than for distribution. The Federal Supreme Court pointed out that the base sentence for the most serious offence must be determined based on the abstract penalty range and not the concretely highest sentence. The lower court had also considered the severity of the depicted acts (including oral, anal, and vaginal intercourse with very young children) and the subjective elements of the offence (conditional intent). No abuse or excess of discretion was discernible.

3. Connecting fine The appellant challenged the imposition of a connecting fine of CHF 2,700 under Art. 42 para. 4 SCC. The Federal Supreme Court confirmed that a connecting fine may not exceed one-fifth of the culpably appropriate sanction. The lower court had justified the fine as a deterrent, given that the…