Child molester's prison sentence reduced on appeal

The Court of Appeal ruled that the child molester had not been accused of the correct offence, and reduced his three years prison sentence to three months imprisonment, suspended for four years

(File photo)
(File photo)

A child molester who groped two sisters at Pretty Bay in Birzebbugia has had his jail term reduced to a suspended sentence, after a judge ruled that he had not been accused of the correct offence.

79-year-old Alfred Xerri had been sentenced to three years imprisonment when he was convicted in 2013 of having corrupted the two young girls.

A police report had been filed in August 2009 stating that the two sisters, then aged eight and nine had been at the beach when they had seen a man swimming and pushing some small dogs on a lilo.

The curious children had commented on how cute the dogs were and the man had agreed, before groping both sisters’ genital areas for several seconds.

“He was going to [put his hand under my swimsuit] but I didn’t let him,” one of the sisters, testifying via videoconferencing, had told the court. The accused had tried to pull her back but she swam away. 

Her sister had also described to the court how the man had done the same to her and then made her promise not to tell her mother that he had touched her. The children had told their mother of the incident later that evening as she was bathing them and the parents went straight to the police, who arrived at the conclusion that it was Xerri  - known as “il-Uomo” - from the children’s description of the man.

Xerri, who consistently denied any wrongdoing, had filed an appeal against his conviction, his lawyer insisting that the touching was “entirely accidental” and that in a worst-case scenario it would constitute the crime of violent indecent assault.

The crime of corruption of minors requires acts “of a certain weight” which were “capable of arousing the sexual interest of the victim”, pointed out defence lawyer Joe Brincat, asking how these fitted in with the facts of the case.

He requested the court reform its declaration of guilt by replacing the crime of corruption of minors with the lesser charge of violent indecent assault.

But Judge Consuelo Scerri Herrera went a step further, saying that she disagreed that the man should be found guilty of something which neither the police nor the Attorney General had asked him to be convicted of. The Criminal Code specifically stated when guilt for a lesser offence could be found from a more serious one and this was not one of them, she said.

Quoting from case law, the court said that for an offence to be comprised and involved in another offence, all of the ingredients of the first offence must also be found in the second.

The Court of Criminal Appeal therefore revoked the sentence at first instance where it found Xerri guilty of corruption of minors “bearing in mind that although this Court agrees with the appellant that the facts fit the crime of violent indecent assault, the appellant was not accused with this crime and this court therefore cannot find him guilty of violent indecent assault.”

It was up to the prosecution to accuse the appellant with this crime but it was not mentioned, so much that the Attorney General did not indicate it in his note of renvoi, said the court.

Despite being cleared of corrupting a minor, the man’s conviction for offending public morals was upheld.

The judge underlined that although the appellant was not being found guilty, “his behaviour was deplorable and can never be accepted, behaviour which causes fear both in the young victims as well as parents and society in general.”

Noting that the man had also been convicted in 1999 of offending public morals, the court fined him €1,000 and imposed the maximum punishment of three months imprisonment which the court suspended for the maximum of four years in view of the accused’s advanced age. He was also required to sign Malta's sex offenders register.

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