Sentencing an under-aged person must be done with care

The Magistrates Court in its criminal jurisdiction held that when a youth is being sentenced, the court must be careful to not criminalise that youth. This was decided by Magistrate Dr Joesph Mifsud in the police -v- Omissis (name not being published) decided on 2 September, 2017

The unnamed 16-year old was accused of jumping over the barrier at the National Stadium in Ta’ Qali and behaving not in accordance with the law. The accused admitted the charges brought against him.

The incident took place on 1 September, 2017 during the Malta-England World Cup qualifying game. The accused leaped over the barriers into the football pitch when the game was underway. Magistrate Mifsud held that the accused is a young offender and the jurist Archbold held:

“A court sentencing a young offender must be aware of obligations under a range of international conventions which emphasise the importance of avoiding ‘criminalisation’ of young people whilst ensuring that they are held responsible for their actions and, where possible, take part in repairing the damage that they have caused. This includes recognition of the damage caused to the victims and understanding by the young person that the deed was not acceptable. Within a system that provides for both the acknowledgement of guilt and sanctions which rehabilitate, the intention is to establish responsibility and, at the same time, to promote re-integration rather than to impose retribution.”

According to Article 37 of the Criminal Code: 

“(1) The minor under sixteen years of age shall also be exempt from criminal responsibility for any act or omission done without any mischievous discretion.

(2) In the case where the act or omission is committed by a minor who is aged between fourteen to sixteen years of age with mischievous discretion and in the case where the minor is aged between sixteen and eighteen years, the applicable penalty shall be decreased by one or two degrees.”

Then the Court moved on by quoting from the Sentencing Council, which prepared guidelines on sentencing young people:

“While the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to the offence caused. For a child or young person the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour…

It is important to avoid ‘criminalising’ children and young people unnecessarily; the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish. Restorative justice disposals may be of particular value for children and young people as they can encourage them to take responsibility for their actions and understand the impact their offence may have had on others.”

The Court then quoted from an 1845 British judgement Reg -v- Smith:

“... a guilty knowledge that he was doing wrong – must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick (if you should be of opinion he did fire it) he had a guilty knowledge that he was committing a crime.”

Then Glanville Williams, British jurist wrote:

“As a matter of policy it is highly desirable that a child who has committed what, for an adult, would be a crime, should be put to answer, even if he is afterwards acquitted on the ground that he did not know his act to be wrong. This desirable result can be reached by drawing a distinction between the burden of proof (or persuasive burden) and the burden of introducing evidence (evidential burden). The burden of proving the child’s knowledge of wrong is on the prosecution, but this only means that, when all the evidence is in, the prosecution must fail if the court is not satisfied beyond reasonable doubt of the child’s guilt. The fact that the persuasive burden is on the prosecution does not control the burden of introducing evidence on particular issues, for the law may place an evidential burden on the accused even when the persuasive burden is on the prosecution.”

The Court then examined Article 9 of the Football (Offences) Act, 1991, which reads:

“(1) Any person who commits an offence against these regulations shall be liable, on conviction, to a fine (multa) of not less than fifty-eight euros and twenty-three cents (€58.23) but not exceeding one thousand and one hundred and sixty-four euros and sixty-nine cents (€1,164.69). 

(2) Where any person has been found guilty of an offence against these regulations, the court may, in addition to the punishment herein mentioned, prohibit such offender from attending at any sports ground for a period not exceeding one year.”

With regard to the punishment that the Court would have to give, Magistrate Mifsud referred to Repubblika ta’ Malta -v- Rene sive Nazzareno Micallef, where the Court held that the punishment should be aimed at paying society back for the wrong that the guilty person had committed and also in reforming the guilty person.

Then the Court fined the youth €200 and handed down a conditional discharge for one year. The youth was banned from the Maltese sports grounds for a year.

Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates