Facts
The appellant ([X.] ) committed several sexual acts between February 2009 and 25 November 2014 against his stepchild [A.] (born 2002), as well as several sexual assaults against his stepdaughter [B.] (born 2003), when she was nine years old. He partly documented the offences in 390 photographs and 22 films, distributed some of them on the internet, downloaded a large quantity of child pornographic material and showed [A.] pornographic depictions.
On 30 March 2017, the Lenzburg District Court found the appellant guilty of multiple sexual acts with children, multiple attempted rape, multiple, partly attempted sexual coercion, multiple sexual abuse, multiple counts of pornography and one offence under the Copyright Act, and sentenced him to eight years' imprisonment and 100 day-fines of CHF 20.--. Credited were pre-trial detention (99 days), substitute measures (66 days), security detention (8 days) and early enforcement of the sentence (97 days).
On 3 November 2017, the Cantonal Court of Aargau, partly upholding the appeal, acquitted the appellant of several charges and sentenced him to seven years' imprisonment for the undisputed convictions, confirming the crediting of a total of 315 days.
By judgment 6B_1416/2017 of 29 November 2018, the Federal Supreme Court upheld the appeal, set aside the judgment of the cantonal court and remitted the matter for a new decision, in particular because findings on the appellant's childhood and youth were lacking and the effects of the substitute measures on personal liberty had not been sufficiently examined.
On 10 May 2019, the cantonal court again sentenced the appellant to seven years' imprisonment and confirmed the crediting, now taking into account a total of 868 days of early enforcement of the sentence; the substitute measures were credited to the extent of 10% or 66 days.
By way of a criminal appeal, the appellant requested that the judgment be set aside and the matter remitted to the District Court, or alternatively to the cantonal court; he also applied for legal aid. He complained of a violation of his right to effective defence (Art. 6 ECHR, Art. 128 CrimPC), challenged the sentencing and requested a custodial sentence of six years as well as a higher crediting of the substitute measures (450 days). In the alternative, he requested that the Federal Supreme Court hear his treating psychiatrist as a witness.
Considerations
The Federal Supreme Court did not entertain the complaint regarding inadequate defence. On the one hand, the principle of good faith prohibits raising known relevant objections only after an unfavourable decision rather than before the lower court. In his submissions of 17 January and 4 March 2019, the appellant neither raised any breach of duty by his counsel nor questioned the adequacy of the representation, but even described his lawyer's statement as supplemented.
On the other hand, the criticism remained unsubstantiated. Generic allegations that counsel used only a small part of the arguments do not satisfy the reasoning requirements of Art. 42 para. 2 and Art. 106 para. 2 FSCA. The official defence counsel is not merely the uncritical mouthpiece of the client. According to case law, a serious breach of duty exists only in the case of conduct that is objectively untenable or manifestly erroneous and substantially restricts the rights of the defence; the mere feeling of the accused is not sufficient.
The complaint regarding sentencing is likewise inadmissible. The appellant assumed an offence period of two years and ten months and thereby departed from the binding facts (Art. 105 para. 1 FSCA), without demonstrating arbitrariness (Art. 9 Cst.). Moreover, the culpability concerning [A.] was not the subject of the remittal proceedings, and he did not engage with the lower court's reasoning.
Within the remittal proceedings, the lower court is bound by the considerations of the Federal Supreme Court (BGE 143 IV 214). Regarding the crediting of…