Facts

Parties and procedural history:

The appellant [A.] was charged by the public prosecutor’s office with committing a total of 39 burglaries at various locations in Switzerland between 31 March 2014 and 29 May 2016, partly in collaboration with an accomplice. The total value of the stolen goods amounted to CHF 490,568.80. The District Court of Baden convicted the appellant on 10 November 2020 in 38 cases of commercial and, in part, gang-related theft, and in 27 cases of multiple criminal damage and trespass, to a custodial sentence of 6 years. In one further case, the proceedings were discontinued due to lack of a valid criminal complaint, and in another case, the appellant was acquitted of the charges of commercial and gang-related theft as well as criminal damage and trespass.

The appellant appealed against this judgment. The Higher Court of the Canton of Aargau partially overturned the first-instance judgment on 29 November 2021. It confirmed the discontinuation of the proceedings and the acquittal in one case each, acquitted the appellant in further cases of the charges of commercial and gang-related theft as well as criminal damage and trespass, but convicted him in cases 3, 15, 24, 36, 38, 42 and 44 of commercial and, in part, gang-related theft, and in cases 3, 36, 38, 42 and 44 of multiple criminal damage and trespass, also to a custodial sentence of 6 years.

Appellant’s submissions: The appellant requested the FSCA to reduce the custodial sentence to three or, alternatively, four years. He also applied for free legal aid and legal representation.

Relevant findings of the lower courts:

  • DNA traces linked the appellant to seven burglaries. He admitted the corresponding thefts, criminal damage and trespass, for which the lower court convicted him.
  • The first-instance court had convicted the appellant of further thefts, criminal damage and trespass based on statements made by an accomplice in separate proceedings without the appellant’s participation. The accomplice could no longer recall the offences in the present proceedings, which led to the appellant’s acquittal on the relevant charges.
  • The appellant has multiple prior convictions, including in Germany for joint aggravated extortion (24 months’ imprisonment), intentional assault (5 months) and joint aggravated gang theft (109 months). After early release from German custody in 2013, he committed further offences in Switzerland as early as 31 March 2014.

Considerations

Principles of sentencing and discretion of the lower court:

The FSCA emphasises that sentencing is generally within the discretion of the lower court. It will only intervene if the lower court has exceeded or failed to exercise its discretion or abused it, thereby violating federal law. The lower court has considerable discretion, particularly in determining the individual and aggregate sentences under Art. 49 para. 1 SCC. The lower court must record the circumstances relevant to sentencing and their weighting and set out its reasoning in outline so that the sentencing decision is comprehensible (Art. 50 SCC). Particularly high standards apply to the reasoning if the sentence imposed is unusually high or lenient.

Assessment of the lower court’s sentencing:

The lower court justified the 6-year custodial sentence as follows

a) Commercial and gang-related theft: The lower court classified the offence as the most serious offence and considered the commercial and gang-related nature as aggravating factors. The sentencing range for commercial theft extends up to ten years’ imprisonment (Art. 139 nos. 2 and 3 para. 2 SCC). The lower court considered the culpability to be no longer minor to moderately serious and set an individual sentence of 48 months. It based this on the high value of the stolen goods (over CHF 200,000), the emotional value of the stolen items (jewellery, watches) and the appellant’s considerable freedom of choice, given his training as a painter and work experience as a car mechanic, yet he committed the burglaries. The lower court considered the appellant’s entry into Switzerland solely for the purpose of committing offences to be a slight aggravating factor.

b) Criminal damage and trespass: The lower court increased the individual sentence by a total of 22 months due to the criminal damage and trespass. In the case of criminal damage, it took into account the damage caused (up to CHF 6,850) and the culpability, which was minor to just moderately serious. In the case of trespass, it differentiated between burglaries in private properties (moderately serious culpability) and parish halls (minor to moderately serious culpability) and considered the significant impairment of the victims’ sense of security.

c) Offender characteristics: The lower court considered the appellant’s relevant prior convictions as aggravating factors…