When the accused admits to charges, the Court of Criminal Appeal may change the punishment only if it finds an error when the sentence is given. This was held in a judgement delivered by the Court of Criminal Appeal on 22 December 2021 in Il-Pulizija -v- Firas Ale and Muhamed Teqer. The Court was presided by Judge Consuelo Scerri Herrera.
The accused were charged with having false identity documents in November 2021 and that they made use of these false documents.
The accused admitted to the charged and the Magistrates Court found them guilty and awarded them a six-month prison sentence. The two accused appealed the judgement on the ground that the punishment did not fall within the parameters outlined the law and it was manifestly excessive. The accused are minors and therefore Article 37 of the Criminal Code should have been applied and therefore the punishment should be reduced by one or two decrees. Furthermore Article 6 of the Probation Act should have been applied. This Article of the law allows that the Probation Services to prepare a report before judgement is delivered in order to see whether the accused can be given a probation order or a supervision order for a suspended sentence.
The Court of Criminal Appeal held that in essence the appeal is limited to the punishment awarded by the Magistrates’ Court. The judgement quoted from Ir-Repubblika ta’ Malta -v- Serag FH Bedn Abid decided on 4 December 2003, which held that it is not common for there be an appeal when the accused admitted to the charges. This is due to the fact that the person admitting to the charges is taking responsibility of his or her decision and is subjecting oneself to the Court’s decision.
Notwithstanding this the Court of Appeal should analyse all the circumstances surrounding the case to see whether the punishment is excessive or otherwise. In Il-Pulizija -v- Tarquin Vella decided by the Court of Criminal Appeal on 15 September 2020 held that there are 3 elements to punishment.
These are Retribution, Prevention and Rehabilitation . In Pulizija -v- Gilbert Bezzina decided by the Court of Criminal Appeal on 16 October 2020, the court explains these elements. Retributive because the accused must repay for the crime he has committed. Preventive is when there is a fear of the consequences if the accused commits another crime. The Court held that rehabilitation is essential and crucial for the person concerned to be reformed and will drives him away from delinquency.
In The Republic of Malta -v- Kandemir Meryem Nilgum et decided on 25 August 2005, the Court of Criminal Appeal held:
“The phrase ‘wrong in principle or manifestly excessive’ has traditionally been accepted as encapsulating the Court of Appeal’s general approach. It conveys the idea that the Court of Appeal will not interfere merely because the Crown Court sentence is above that which their lordships as individuals would have imposed. The appellant must be able to show that the way he was dealt with was outside the broad range of penalties or other dispositions appropriate to the case.”
In another judgement Il-Pulizija -v- Dailin Bennetti, decided by the Court of Criminal Appeal on 1 September 2020, the Court held that the Court would not disturb the discretion of the lower court simply because the judge would have given a different punishment. For a punishment to change, it has to be proved that there was a legal error.
Judge Scerri Herrera held that the Court is duty bound to examine all the circumstances in which the lower court was aware of and also if there are other circumstances that developed after the judgement. The minors had admitted to the charges presented against them and therefore, under Article 37(2) of the Criminal Code, their punishment should have been reduced by 1 or 2 degrees. In this case, what took place is similar to another case Il-Pulizija -v- Abdu Ruhman Abbas decided on 30 November 2020, where a co accused was an adult and the court had awarded the minimum for the adult and the maximum for the minor. The Court pointed out that Ale and Teqer were unaccompanied minors when they entered Malta as refugees. According to the Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, explained “‘unaccompanied children have often had little or no choice in the decisions that have led to their predicament and vulnerability.”
The Court took into consideration that the accused minors were vulnerable when they came to Malta.
They depended on their parents, they are now in a foreign country without any parents taking care of them and are faced with these criminal proceedings. The Court held that this is an important consideration where a prison term would not serve much. As such the court decided to reform the sentence from effective prison term to probation.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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