When awarding a punishment in criminal cases, the courts have to keep in mind that there are three principles. This was held on 20 May 2020 by Magistrate Dr Joseph Mifsud in Il-Pulizija -v- Mario Grima.
Grima was accused of a number of thefts in Valletta in October and December 2019 and in January and March 2020.He admitted to the charges brought against him.The Court pointed out that the procedure stipulated in Articles 453(1) and 392A of the Criminal Court were strictly adhered to, in that the accused was given chance to reflect on whether he wanted to confirm his guilty plea, which he did.
The Court then dealt with the punishment that had to be awarded. Magistrate Mifsud quoted from Article 142(1) of the English Criminal Justice Act, 2003, which reads:
“(a) the punishment of offenders (b) the reduction of crime (including its reduction by deterrence) (c) the reform and rehabilitation of offenders (d) the protection of the public (e) the making of reparation by offenders to persons affected by their offence”.
The Court pointed out that the person who has the responsibility of judging, must not only look at the interest of the person found guilty of a crime, but must also take into consideration the interest of the victim, the society in general.
The ultimate aim of punishment must be geared towards an overall reduction of crimes being committed, and the rehabilitation and reform of the guilty person.In Pulizija -v- Simon Borg, decided on 10 December 2019 by the Court of Criminal Appeal, the Court listed three principles of punishment. These are retribution, prevention and rehabilitation.
The first principle of retribution was highlighted by the Italian jurist Francesco Carnelutti.Punishment should allow the guilty person to repair the wrong that he or she carried out, which would have affected the people and tranquillity of society.
As to the preventive aspect, there are two sides of this in that there is the general element and the specific element.The general element is when there is a general fear to commit a crime because of the punishment which may apply.The specific side of this principle is that the offender himself or herself will be reluctant to commit a crime for fear of receiving a punishment from Court.
If this fear from punishment does not exist, then there will be no resistance from people committing crime and there will be a spread of delinquency.Therefore, the punishment must be effective.With regard to the last element that the punishment must re-educate and rehabilitate: this element is essential for society in that the guilty person must go through a process of reform.The guilty person must be allowed to distance himself or herself from the reasons and conditions that allowed him or her to offend and must recognise that this was wrong.
The Court then moved to award Grima seven months imprisonment and a further one month imprisonment for breaching a conditional discharge that he had been given in a previous judgement.
Av Malcolm Mifsud
Mifsud & Mifsud Advocates
This article is accessible on Malta Today.