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Bob likes fast cars. Two months ago, he was unfortunately caught for excessive speeding. Both his car and his driving license were confiscated immediately. By law (SVG Art 16c, Abs 2 a_bis and Art 90) he now expects a jail sentence of at least one year. But since this was the first incident of this kind, he will probably get away with a suspended sentence.

Today is his trial. To get to court, Bob does something very stupid: He steals a car and drives to court, again at excessive speeds and again, he is caught.

Can the judge, based on the second incident, change his sentence because he now knows that the suspended sentence probably won't hold Bob from speeding? The judge of course knows that there will likely be a second trial involving Bob (for speeding again, but also for stealing a car and driving without a license).

Answers for different jurisdictions are welcome. Also, I'm interested basically in "can the judge use evidence from a new case", rather than the exact sentencing in this example.

Question based on a true story.

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  • My impression is yes, if the prosecution introduces related evidences (as if there was a mini "trial" with a lower standard), especially considering the subsequent offence before sentencing of the first could not be used to revoke suspension. But I did not find an exact case like this in French (most cases are published in German only).
    – xngtng
    Oct 9, 2022 at 19:47
  • @xngtng I can read German, so if you have a (possibly matching) case, that would be helpful.
    – PMF
    Oct 9, 2022 at 20:13
  • The linked story is so ridiculous. He must have been out of his mind. 😂
    – plocks
    Oct 9, 2022 at 21:07

2 Answers 2

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The conditions of ordering a suspended sentence in Switzerland is regulated by art. 42 of the Penal Code, in particular al. 1 and 2:

  1. The court shall normally suspend the execution of a monetary penalty or a custodial sentence of no more than two years unless an unsuspended sentence appears to be necessary in order to prevent the offender from committing further felonies or misdemeanours.

  2. If the offender received a suspended or unsuspended custodial sentence of more than six months within the five years prior to the offence, the sentence may only be suspended where the circumstances are especially favourable.

[...]

Entered into force from 2007, the first alinea makes suspension of serious penalties the rule rather than the exception, unless the court is convinced that the offender is likely to reoffend after making a prognosis regarding their future behaviour. An unfavourable prognosis (due to likelihood or high uncertainty of new offences) is required and the benefit of the doubt is given to the offender in accordance with general criminal law principles (BGE 134 IV 1).

For the application of al. 2, where the presumption of favourable prognosis is reversed, only a serious previous pronounced sentence prior to the commission of an offence is a disqualifying factor (especially favourable circumstances aside). The judge consequently cannot automatically disqualify the convicted from a suspended sentence because of a subsequent offence.

However, the judge has a large latitude and discretion in determining the prognosis and may take into account all circumstances related to the offender until the moment of sentencing, unless otherwise prohibited by law (e.g. offences erased from the criminal record can no longer be used against an accused).

The presumption of innocence should only apply in so far that the judge does not consider the accused guilty of the other offence, but relevant evidences may still be introduced to show the accused's behaviour and character.

While I cannot find a statement directly related to the determination of suspended sentences from decisions in French, the Federal Court had ruled pending criminal procedures may be used in the justification of preventive detention, if the accused is storngly suspected, bordering on certainty, in the other procedure (BGE 146 IV 326, para. 3.1 citing BGE 143 IV 9, para. 2.3.1). I do not know if the determination of the possibility of suspended sentences necessarily requires such a high bar, but it demonstrates the possibility of using pending offences for risk determination in criminal law context.


I will note another consideration that may be relevant, depending on the timing of the commission of a subsequent offence.

Swiss law provides limitations on concurrent sentencing with art. 49 of the Penal Code, in particular

1 If the offender, by committing one or more offences, has fulfilled the requirements for two or more penalties of the same form, the court shall impose the sentence for the most serious offence at an appropriately increased level. It may not, however, increase the maximum level of the sentence by more than half, and it is bound by the statutory maximum for that form of penalty.

2 If the court must pass sentence on an offence that the offender committed before he was sentenced for a different offence, it shall determine the supplementary penalty so that the offender is not more severely punished than he would have been had the sentences been imposed at the same time.

[...]

Only the most serious offence will become the base of sentencing if two or more sentences of the same form are appropriate for one or more offences. The less serious offences are only punished via an appropriate increase in the sentence for the most serious offence.

A subsequent offence committed before the sentencing of the first offence is eligible for the application of al. 2. An offence committed after the sentencing of the first offence is not considered as concurrent but independently sentenced. This is a relatively new change in jurisprudence (without statutory change by Parliament) by the Federal Court in 2019 to prevent undue advantage for a serial offender.

Note that suspension is not considered as a form of penalty, but only a way to execute the penalty. The appropriate penalty is always first determined, then the possibility of suspension considered.

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    not just the day of the sentencing, but the very moment. they can last second alter their verdict because the defendant in a case of thievery is just this moment pickpocketing his lawyer and the judge notices.
    – Trish
    Oct 9, 2022 at 22:25
  • So I get a "discount" when I continue stealing while awaiting trial?
    – PMF
    Oct 10, 2022 at 6:55
  • @PMF in the opposite: the judge will remove any leniency they had awarded you. To illustrate, an anecdote: There was a pathological thief with a lawyer that had pleaded so well in court. So right out of the courtroom after having gotten a, as the judge said, a last, mild sentence with a fine for thievery, crossed the street and promptly stole a bottle of soda from the shop opposite the street. And was caught red-handed. With the note from the judge on his last case that he was a notorious repeat infringer he got the maximum allowed for the bottle of soda - IIRC just like 3 to 6 months.
    – Trish
    Oct 10, 2022 at 7:47
  • That anecdote illustrates one thing: The judge could not just take back the verdict rendered, but would the thief had stolen just minutes earlier, like his lawyer's wallet, he wouldn't have gotten the lenient, mild fine but the sentence in jail.
    – Trish
    Oct 10, 2022 at 7:52
  • @PMF You get a discount in so far that if every theft you committed is worth the maximum penalty, you will not get maximum penalty x the number of your thefts, but at most 150% of the maximum penalty prescribed. It reflects the same principle as the principle of totality under common law, that it is the total criminality of the offender that is punished (or in a more modern interpretation, the sentence as a rehabilitation measure is to cure the offender as a person) which is not an arithmetic sum of individual criminal elements.
    – xngtng
    Oct 10, 2022 at 8:07
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Evidence of offences other than the one for which the accused is being sentenced is admissable at a sentencing hearing, even evidence of untried offences. R. v. Edwards, 2001 CanLII 24105 (Ont. C.A.):

[39] There are statutory provisions that do permit the use of evidence about the offender, even though that evidence also discloses the commission of other crimes. First, s. 718(c) and (d) of the Criminal Code set out as two of the objectives of sentencing:

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

[40] Neither of these objectives can be fairly achieved through sentencing without knowing something, and perhaps quite a bit, about the background and character of the offender. The Crown, in this case, in effect put its case for admission of this evidence on the need to separate this respondent from society.

The sentencing judge can consider such evidence of untried offences. (R. v. Jordan, 1991 CanLII 203 (B.C.C.A.))

When there is a dispute about any fact that might aggravate the sentence, the Crown (prosecution) must establish that fact by proof beyond a reasonable doubt. Criminal Code, s. 724(3)(e).

See also R. v. Roopchand, 2016 MBCA 105:

The first ground [of appeal] is whether the sentencing judge erred by taking into account the accused’s pending charge for an untried offence when imposing sentence. The use to be made of evidence will be informed by the purpose for which it is to be admitted. With respect to what use can be made of evidence of untried offences at a sentencing hearing, the case law is clear: while such evidence cannot be used for the purpose of punishing the accused, it is admissible when its purpose is limited to shedding light upon some aspect of the accused’s character and background which is relevant to the objectives of sentencing being considered by the judge

R. v. Angelillo, 2006 SCC 55:

The fact that Mr. Angelillo had been charged with two new counts of fraud, both of which were allegedly committed while he was waiting to be sentenced, was obviously relevant to the assessment of the danger his release would represent for the community.

In Angelillo, the judge could even have "postponed the sentencing hearing to a date after the interim release hearing regarding the new charges in order to be better informed of the risk resulting from the subsequent act."

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