Is it a weapon? The difference is 5 years in prison

“It is important for you to assess whether you will have to go to jail. We do not assume that at this point in time.” With these words, Martin Hofmann makes it clear at the beginning of a trial for unlawful armed trafficking in narcotics before the Munich II Regional Court that the accused Sebastian O. could face a severe sentence in view of the accusations made against him – but that the court is likely to be lenient. The chairman of the 4th Juvenile Chamber emphasized that under the circumstances, the 21-year-old would have to expect a prison sentence of at least five years if he were sentenced under adult criminal law. However, according to the court’s signals, this seems rather unlikely.

The accusation against the 21-year-old, who lives in the Fürstenfeldbruck district, weighs heavily by legal standards. O. was searched by police officers in September 2019 near a playground in Fürstenfeldbruck. They found around ten grams of marijuana, packaged in small quantities in plastic bags, as well as ten ecstasy tablets and 360 euros. The search of O.’s rooms in the parental home revealed 170 grams of weed, 120 ecstasy tablets, two grams of similarly acting MDMA active ingredient, 1700 euros as well as various utensils for packaging in commercial quantities with them.

The quantities of drugs seized are not small. But still: What brings the penalty range close to a prison sentence is not so much the quantity, but a small can of animal repellent spray that the defendant had with him at the time. The public prosecutor’s office has classified it as a weapon, which puts O.’s dealing in the vicinity of organized crime.

However, the 21-year-old does not convey this impression at all during the trial. “I started with the, excuse the expression, shit 2014,” he begins. His parents sit with him in the courtroom while he confesses to having procured drugs via the Darknet and reselling them to friends. His reputation and popularity are on the rise. The defendant has the drugs sent to a packing station. At that time, he himself consumed mainly marijuana, up to six grams a day; MDMA and ecstasy he tried only occasionally. He said he had the spray for his small dog, which had once been attacked and injured by a larger one. A detective testifies that the spray is not a weapon.

Who carries a weapon, no matter which kind, with itself in Germany when drug dealing, must count on at least 5 years prison after adult criminal law.
The quantity of the drugs no longer plays a role, it is the combination that makes the difference.

From the time of the inspection, the defendant behaved as any criminal defense attorney would probably want him to. He cooperated with the police, distanced himself from his clique, immediately stopped his drug consumption, which he proved by taking part in a charity course as well as two self-paid drug tests. He is mastering his apprenticeship as an IT electronics technician with best grades, and has already received three awards and an employment contract. The 21-year-old has had a girlfriend for 18 months and agrees to the confiscation of the confiscated items; he would only like his cell phone back.

“Drugs don’t seem to be a problem for him at this point,” evaluates a representative of the juvenile court service. As a punishment “to clarify the norm,” he recommends permanent detention for several weeks, or alternatively a suspended sentence. However, in view of the 21-year-old’s development, he considers this to be of little educational value. The public prosecutor considers this “not purposeful”. Hard drugs were also seized, and the quantity suggests a heavy trade.

With the packing station and the procurement via the darknet, he had demonstrated “a high criminal energy,” she says, and requests a one-year suspended sentence and a one-month fine. “I don’t see that as appropriate from an educational point of view either,” the defense attorney points to the defendant’s positive development. The juvenile chamber sees it the same way and imposes two weeks of permanent detention as well as two more negative drug tests over seven months at the defendant’s own expense.


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