Prosecutor Appeal Against Community Service Sentence for Theft Due to Defendant's Imminent Departure

The court addressed an appeal against a sentence of community service for theft, where the prosecutor sought an unconditional custodial sentence because the defendant was soon to leave the country, making community service or a fine unenforceable. The court reasoned that a short custodial sentence under Article 41 of the Penal Code can only be imposed if enforcement of a fine is likely impossible; to determine this, the prospective fine's basic terms must first be established, considering factors like the minimum daily rate. Given the defendant's confirmed impending departure from the country, lack of assets or income, and unknown current residence, the court concluded that enforcement of even a nominal fine (estimated at CHF 100) was unlikely, thus justifying the imposition of a short, unconditional custodial sentence as the only appropriate and enforceable sanction.