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Magistrate ignores minimum punishment in child abuse case

Magistrate Abigail Lofaro went below the legal minimum when she sentenced a man to two years’ imprisonment suspended for four years after he was found guilty of defiling a six-year-old girl.

The Criminal Code lays down that the defiling of a minor through lewd acts carries an imprisonment term of up to three years, with or without solitary confinement. However, the fact that the offence was committed upon a child younger than the age of 12 is considered as an aggravation which pushes the minimum term of imprisonment up to three years and the maximum to six. This is clearly stated in S. 203 (1) (a) of the Criminal Code. Mr Falzon was in fact found guilty of violently and indecently assaulting the six-year-old and holding her against her will in Pieta on 24 June 2000. Despite this, his suspended imprisonment sentence was limited to two years, that is one year below the statutory minimum.

Magistrate Abigail Lofaro justified the judgement by saying that there had been no penetration, the man had co-operated with the police and the prosecution had advised that a jail term might not be appropriate since Falzon probably suffered from a mental illness. Falzon was also put on probation for three years.

The possibility of institutionalising the offender at a mental health care facility was not considered by the Magistrate.

The judgement has drawn criticism both from social workers and from legal professionals. A two year jail term is considered a ridiculous penalty in view of the seriousness of the offence and the extremely young age of the victim. Moreover, Magistrate Lofaro’s defence that there was no penetration has caused offence because it implies that the mere act of violently and indecently assaulting a child is not a serious enough offence to warrant imprisonment.

Then there is the question of a suspended sentence, with lawyers arguing that this measure will hardly serve to deter the offender from repeating the offence. The practice of suspending prison sentences in general has received criticism from countless criminologists. Nigel Walker, in his book Why Punish? writes that ‘the memory of an actual prison sentence deters more offenders that the mere threat of one. There is independent evidence that the longer a prisoner spends inside, the less likely he is to be re-convicted. Walker reaches these conclusions from independent, quoted research including a six-year follow-up of a large sample of males sentenced in England and Wales. Re-conviction-rates for actual imprisonment were markedly better than for suspended sentences. Walker even describes suspended sentences as ‘a sentence of sorts’.

While suspended sentences undoubtedly can be of benefit to the offender and to society in certain cases, sources say that this is definitely not the case in offences such as paedophilia. A suspended sentence not only means that the offender is immediately turned lose upon society but also that there is no deterrent at all to stop him from repeating the offence.

Bondicini will be featuring paedophilia in next Tuesday’s edition.