Giving a second chance

 This was decided by Mr Justice David Scicluna in Il-Pulizija -v- Marco Rapinett.

The accused was charged with stealing a hand bag containing a mobile phone, digital camera and two pairs of glasses, of relapsing and of committing a crime in the operative period of a suspended sentence.

The accused pleaded guilty to all the charges.

The Magistrate’s Court on 23 June, 2012 jailed Mr Rapinett for six months and also extended for another four years the suspended sentence already awarded in a previous judgement.

The Attorney General appealed this judgement, arguing that the first court should not have ordered the suspended sentence to start all over again, but should have applied the prison terms and added to the six months imprisonment. The Attorney General further held that in terms of Article 28B(2)(a) of the Criminal Code, the first court committed an error, because the accused had admitted being in breach of the suspended sentence conditions and as a result he should have been awarded the original prison sentence of two years. The AG quoted Article 28B:

“28B. (1) Where an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence and either he is so convicted by or before a court competent under article 28C to deal with him in respect of the suspended sentence or he subsequently appears or is brought before such a court, then, unless the sentence has already taken effect, that court shall order that the suspended sentence shall take effect.

(2) If the further offence committed during the operational period is of an involuntary nature or if, in the case of any other kind of offence, the court is of opinion, in view of all the circumstances including the facts of such further offence, that it would be unjust to make an order under subarticle (1), it may deal with the offender by one of the following methods – (a) it may abstain from making an order under subarticle (1) and the operational period shall then remain in force; or

(b) it may by order vary the original order under article 28A(1) by substituting for the operational period specified therein a period expiring not later than four years from the date of the variation:

Provided that if it does not make an order under subarticle (1) the court shall state its reasons”

The AG continued the appeal by stating that the rule is that the sentence should be applied when another offence is committed and the exception should not be applied automatically and that the criteria mentioned in the law should be applied. According to the AG there are two circumstances when Article 28B (2) is applied. The first is when the crime committed was of an involuntary nature, while the second is when the court is of the opinion that it would not be just to apply the prison sentence. In this particular case the first does not apply and with the second the court did not give a reason nor justification why the suspended sentence was extended.

Mr Justice Scicluna in his judgement held that according to Article 28B(2) the court could either abstain from making an order or else change the original order. The court must give reasons if it is to extend the suspended prison sentence. The first court in this case changed the original order, since it ordered that the four years commence again from the date of the judgment subject to this appeal.

Although the Magistrate’s Court did not list the reasons specifically, it just the same gave reasons in that the stolen objects were returned immediately and that the accused admitted to the charges immediately.

The court could either abstain from making an order or else change the original order. The court must give reasons if it is to extend the suspended prison sentence

The Court of Criminal Appeal ordered a pre-sentencing investigation report in order to evaluate his personal circumstances. From this report it resulted that the accused has a drug addiction but he did not show any motivation to stop this problem. It seems that at the end the accused showed he was willing to seek help and in fact the probation officer recommended that the suspended sentence be attached to a supervision order with the condition that he attends a rehabilitation course. 

Mr Justice Scicluna confirmed the Magistrate’s judgement after also taking into consideration that he did not physically steal the hand bag and that it was returned immediately. The court also took into consideration that the accused showed he wanted to seek help for his addiction and therefore, wanted to give him this one last chance.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates