Suspended sentence cannot be awarded in certain circumstances

The Court of Criminal Appeal switched the punishment of a person who was first awarded a suspended sentence, since this was not permitted at law. This was held in a judgment on 2 June 2020 by Madame Justice Consuelo Scerri Herrera in Il-Pulizija -v- Rodrick Zahra and Ruth Spiteri.

The two accused were charged for a number of thefts of gas cylinders in 2017 in various localities in Malta. Spiteri was also charged on breaching a conditional discharge given in a previous judgment in terms of Article 22 of the Probation Act.

The Magistrates Court, in its judgement, found both guilty and awarded Zahra a three-year prison sentence and Spiteri a 18 month prison sentence suspended for 24 months.

The Attorney General appealed the judgement saying that Spiteri could not have been given a suspended sentence, since Article 28A(7)(c) of the Criminal Court, which states: “(7) An order under subarticle (1) shall not be made in any of the following cases… (c) where the offence has been committed during a period of probation or of conditional discharge under the Probation Act.”

The Court pointed out that Spiteri had admitted, including the charge that she breached the conditional discharge and therefore, the Court of Criminal Appeal has to decide whether the Magistrates’ Court could have given a suspended sentence in according to Article 28A of the Criminal Code.

The Court held that on 13 October 2017, Spiteri admitted to complicity to theft. On the same day she was sentenced to a suspended prison sentence. Spiteri did not appeal from this judgement.

The Attorney General (AG) held that the first court should have first dealt with the crime committed when Spiteri was given a conditional discharge in that a punishment should be awarded for that crime and this is in terms of Article 23(1)(a) of the Probation Act. In fact the crime in question was a simple theft in 2016 and she was given a conditional discharge for six months. The charges of theft in this particular case took place within the six-month period.  Article 23(1)(a) gives the discretion to the Court whether to deal with the crime previously committed or not. In this case where there is a different court, such as a Court of Criminal Appeal, the acts should be sent back to the Magistrates Court to deal with this previous crime. As such, then the Court of Criminal Appeal is not prohibited from giving Spiteri a probation order for the crimes committed in 2017.

Madame Justice Scerri Herrera took a number of factors into consideration, including that Spiteri had cooperated with the police when she was arrested. Furthermore, her criminal record goes back to 2005, but it is not alarming.

Therefore, the Court felt that the appropriate punishment should be probation. The Court quoted from Il-Pulizija -v- George Farrugia decided on 18 January 2001, where the Court of Criminal Appeal, where Farrugia was given a probation order irrespective of the fact that he had 77 previous criminal sentences, however, the Court saw that there was a wind of opportunity for him to reform.

The Court had quoted from a book entitled Principles of Sentencing, the authored by David Thomas, who wrote: “The probation order is clearly the most important individualized measure available to a sentencer. It is not limited to any one group of offenders [...] probation is used to deal with recidivists of mature age as well as the young and those of good character.”

Therefore, in terms of Article 7(2) of the Probation Act, Spiteri was made subject to a probation order for three years.