Harsh sentence for cannabis cultivation reopens case for decriminalisation

The case of a British national sentenced last week to 11 years imprisonment and fined €23,000 over cultivation of more than 1 kg worth of cannabis sativa - though the precise amount is disputed, as it refers to the total dry weight of the plant itself, and not the final product - has reopened a debate regarding Malta's 'draconian' drug law regime.  

On 24 November, Magistrate Lawrence Quintano convicted 35-year-old Daniel Alexander Holmes on a number of charges, including: importation of cannabis seeds without a licence; cultivation of cannabis without a licence and under circumstances which suggested that it was not for his personal use; and trafficking of over 1 kg of cannabis, which the court estimated was worth just over €13,800.

Holmes, who claimed a lifelong cannabis addiction, said that he had cultivated the drug for his personal use, and - while denying any intent to traffic - pleaded guilty to simple possession. He was sentenced to 11 years imprisonment and a fine of over €23,000: a sentence which sparked outrage on a number of counts, not least the perceived inconsistency whereby more severe sentences are meted out for relatively trivial offences, while much more serious crimes - including domestic violence, grievous bodily harm arising from criminal negligence, and even aggravated theft - are let off lightly, sometimes with a suspended sentence.

Soon after the court ruling, an online petition entitled 'Daniel Holmes does not deserve 10 years for growing weed' attracted almost 1,000 signatures within a few days.

The incident, which has been separately criticized by the Opposition spokesman for Justice, has also rekindled calls for decriminalization from professionals active in Malta's own national anti-drug addiction agency.

Decriminalise this!

Contacted on Monday, Dr George Grech, clinical director of Sedqa - the government's agency against drug and alcohol dependence - reiterated a call originally made just over a year ago, when he had urged a national debate on decriminalization during a conference hosted by the agency.

"Prison is not giving results - it's no secret there are drugs in prison, and we have come to learn that incarceration does not work in people who are purely drug addicts," Dr Grech had said on that occasion.

Clarifying that he was referring to decriminalization and not legalization (see box below), he insisted that his argument was raised independently of any individual court case, recent or otherwise.

"When I made the point last December, I was referring to simple possession cases, not trafficking. I pointed towards the example of Portugal, where all drugs, including heroin and cocaine, were decriminalised. There had been a decrease in drug use as a result."

However, Grech admits that there have been a few developments since then on the local and international front. "For one thing we now know more about cannabis, in that there has been research linking the drug to psychosis. It is not true, therefore, to suggest that it is entirely harmless."

The other major development concerns a major shift in the illegal drug landscape, whereby cocaine now emerges as the number one problem drug on the market.

"In the past year we have seen a steep increase in reported cocaine use. Even people we were treating for heroin addiction are crossing over to cocaine. Unfortunately, cocaine is still being perceived as a 'recreational' and therefore harmless drug, notwithstanding serious physical and psychological side effects."

"Again, I am talking about users, not traffickers. In our experience sending such people to prison is counterproductive. For one thing it doesn't help the user, and for another, we know there is a drug problem in prison also."

Instead, Grech recommends a treatment programme instead of prison for such offences. "Not necessarily rehab; treatment could also take the form of outpatient therapy."

Dr Grech also suggested the setting up of a specialised drugs court specifically to adjudicate such cases... not unlike the existing Family Court, in the sense that magistrates would have the opportunity to specialise in the field of drug law and drug-related issues.

In July, a similar call was separately raised by Caritas, when Mgr Victor Grech argued for a drugs court "in which the judiciary would have the support of a multi-disciplinary team to thoroughly examine the level of responsibility of a person suspected of a drugs-related offence and take measures  which promote intensive care in line with the needs of the individual concerned."

Mgr Grech added that "this would also drastically reduce the number of cases pending before the Courts."

By coincidence, on the same day that Dr George Grech renewed his call for a drugs court (Monday), Justice Minister Carm Mifsud Bonnici announced a wide-ranging reform of the justice system, including the setting up of a drugs court along the lines outlined above; and also the possibility of waiving criminal charges for first-time drug offenders.

Opposition calls for rescheduling

Reacting to the Holmes case, the Labour Party's spokesman for Justice Dr Jose Herrera suggested downgrading cannabis as a 'less harmful' drug.

"I feel that whilst certain hard drugs such as  heroin, cocaine and ecstasy should remain scheduled as they are today, I felt that cannabis, together with other lesser drugs such as khat, should be scheduled differently since they are more or less harmless," he told MaltaToday.

"I must also state that Malta does not seem to be in line with the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances 1988, even though Malta ratified this Convention in 1996.

He added that, although it is standard government practice to amend the local laws before ratifying any convention in Parliament "for obvious reasons", there seems to be "a great discrepancy between this convention and our laws."

Nor is this the only aspect of our legal system which appears contradictory. Referring specifically to the Holmes case, Herrera admitted that "there does not seem to be enough consistency in the judgments being meted out in this regard."

"I myself lately had a case regarding the aggravated possession of 3 grams of cannabis. Notwithstanding a plea bargaining note entered into the acts of the case, recommending a one-year sentence, the court condemned my client to three and a half years imprisonment. While I do agree that it is necessary in our country to have harsh laws regarding drug trafficking in order to act as a deterrent, I definitely do not believe in witch-hunts. At times, yes, certain judgments dealing with the possession of light drugs seem disproportionate to other judgments dealing with what might appear to be more heinous crimes."

"Undoubtedly in the light of what I had just stated I feel that we have to revisit our drug legislation.

Decriminalisation versus legalisation: what's the difference?

Decriminalisation is not the same thing as legalisation. If a drug like cannabis (to give one example) were to be legalised, the possession, use, trade, etc., of that substance would not be recognised as a crime in itself.

However, like all other legal commodities the trade would still be subject to certain restrictions: a licence would be required for import/export purposes; all the relevant taxes would have to be paid, and the relevant paperwork carried out, etc.

Failure to abide by those conditions would entail punitive consequences just as in the case of alcohol, cigarettes and practically any legal product or service. Once legalised, the drug would remain subject to all the legal regulations.

Decriminalisation, on the other hand, is a different concept altogether. Cannabis (to stick to the same example) would still remain illegal even if decriminalised: and depending on the model of law adopted and the scale of its local application, the restriction may still cover simple possession, buying and selling, use for recreational purposes, etc.

However, law enforcers would not be able to prosecute for the above breaches, as despite the illegality of the substance there would be no criminal penalties stipulated at law (except within certain parameters), depending on the legislation.

The degree of decriminalisation may vary from country to country: for instance, there may be a maximum allowable quantity for possession, and anyone caught with more than the specified quantity would be still be liable for criminal prosecution.

Criminal sanctions would be reserved for the more serious crimes associated with drug use: cultivation, international trafficking, etc. Depending also on other issues (such as judicial discretion) 'serial offenders' - i.e., people caught on multiple occasions - may still be prosecuted.