Probation is not excluded for long-serving prisoners

Alfred Bugeja and Clive Agius were accused of the theft of a car in December 2008 and a Magistrate’s Court found the pair guilty, awarding them a probation order for three years.

The Attorney General appealed the sentence on the ground that the punishment was not adequate. The Attorney General argued according to Article 7(2)(c) of the Probation Act, Chapter 446 of the laws of Malta put the onus on the magistrate to see that the probation order fitted the circumstances of the case and this included the character of the accused.

The Attorney General argued that the court should have weighed the negative aspects of the accused’s characters with the probability of change after these are followed and helped. The prosecution pointed out that Alfred Bugeja will leave prison in 2023 and this fact should not be a mitigating factor but an indication of his character. They further argued that Bugeja never showed signs of reform. The same applied for Agius who had various opportunities to reform but failed every time.

Mr Justice David Scicluna, who delivered the judgement on 25 March, 2015 held that it is not normal for the Court of Appeal to disturb the discretion of the first court in regard to the award of punishment.

The Attorney general agreed that the probations were within the parameters of the law and therefore the first court could have given this punishment. The main complaint was that Art 7(2)(c) of the Probation Act was not followed, “having regard to the circumstances of the case, including the nature of the offence and the character of the offender, the issue of such order is appropriate”.

The Attorney General does not think that the applicant’s character is conducive to probation due to this past criminal life. The court argued that it is true that the applicant’s criminal record speaks for itself, however, it quoted a previous judgement, Il-Pulizija -v- George Farrugia, of 18 January, 2001, which stated that the court could not agree with the Attorney General, who was of the opinion that the applicant’s situation was irreversible. Only death is irreversible. Neither did the court agree that probation should be given only to young first-time offenders. An older recidivist could be given a probation order and this could be his window of opportunity to end the cycle of prison sentences. 

In this particular case the appellants are serving prison sentences, but they should not be excluded from receiving a probation order. In fact this order may be useful for the appellants to prepare them when they are to leave prison. The probation officers who testified in these proceedings told the court that there is a possibility that they would have changed their lives. On the other hand Mr Justice Scicluna warned the two appellants that if they breach the conditions of probation, they cannot expect that the court will protect them in any way.

The court then moved to dismiss the Attorney General’s appeal.

Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates