No discrimination in thug’s sentencing, after lawyer flags magistrate’s comments

The man had his sentence reduced by a year after an appeals court judge ruled that he had turned his life around 

The lawyer said the presiding magistrate, Joe Mifsud, had passed comments which had not been transcribed, “expressing himself in disrespectful terms with respect to foreigners who break the law in Malta and how they should be treated more harshly than the Maltese.”
The lawyer said the presiding magistrate, Joe Mifsud, had passed comments which had not been transcribed, “expressing himself in disrespectful terms with respect to foreigners who break the law in Malta and how they should be treated more harshly than the Maltese.”

A man jailed for glassing a barman in 2017, causing him a serious and permanent eye injury, has had his sentence reduced by a year, after an appeals court judge ruled that he had turned his life around, whilst also ruling there was no evidence of anti-foreigner bias in the original judgment.

Srdan Simic, 25, from Serbia, had been condemned to imprisonment for five years in 2018, after he was found guilty of very grievous bodily harm. Simic filed an appeal from this sentence.

His lawyer, Roberto Montalto, argued that “there were manifest and serious elements of prejudice against the accused on the basis of the fact that he is a foreign national.”

Montalto said that that the presiding magistrate, Joe Mifsud, had passed comments which had not been transcribed, “expressing himself in disrespectful terms with respect to foreigners who break the law in Malta and how they should be treated more harshly than the Maltese.”

Whilst acknowledging that the punishment fell within the legal parameters established for the crime, the lawyer argued that the magistrate’s attitude had affected the punishment.

The Attorney General submitted that the allegations found no basis in the acts of the case and therefore did not exist for the purposes of the appeal.

In his judgment on the matter, Mr Justice Aaron Bugeja said that there was no evidence of what was being alleged by the lawyer and so had to reject the claim.

Montalto had also argued that the punishment had been calculated on the basis of the wrong article of the law.

Simic had a clean criminal record and had attacked the barman as a reflex action in the context of an incident involving his friend, said the lawyer, adding that the actions hadn’t been the result of bravado.

Mr Justice Bugeja carried out an in-depth examination of the elements of the crimes as charged. The deliberate use of a drinking glass as a weapon was classified as “arms improper” – as long as the glass remained intact as a blunt instrument. But the moment it smashed and broke up into sharp shards, the court said, it was transformed into “arms proper” – the same as any other sharp or pointed instrument.

The judge also noted that the victim had suffered a permanent injury to his eye, which he had not been compensated for.

Punishment must have re-educational and correctional value, to encourage the delinquent to improve himself and live a decent life, as well as to be able to compensate his victims, said the court, making reference to Italian jurist Carnelutti.

“The sentence is distinct from punishment, although it has a repressive efficacy.”

Turning to the case in point, the judge said that jurisprudence had established that as a rule, offences against the person are to be punished with imprisonment. He dismissed comparisons, made by the defence to similar cases, saying that such comparisons, given the different individual circumstances, “could be odious.”

However, he also noted that the accused had recognised his responsibility in the matter and had decided to change his life for the better – achieving tangible results in this regard. This change benefited society as well as the offender, noted the court, and merited a “moderate tempering” of his punishment.

The Court of Criminal Appeal therefore reduced Simic’s sentence by one year, jailing him for four years instead of five, and confirming the rest of the sentence.

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