A “draconian” drug law has forced a magistrate to jail a 39-year-old woman for six months for cultivating six small cannabis plants for her personal use – because “it fails to distinguish between who deserves an effective jail term”.

Due to the wording of the law, the woman would have benefited from a legal provision that would spare her a jail term – had she cultivated one large plant instead of six small ones with a total leaf weight of five grams.

Magistrate Natasha Galea Sciberras said that the Drug Dependence Act, enacted in 2014, was originally intended to ensure that those found guilty of simple possession of small quantities of drugs were not jailed but fined.

Law intended to fine those found guilty of simple possession

However the law, as worded today, was failing to achieve this goal and forced the courts to jail people even if the courts were convinced they did not deserve imprisonment, the magistrate ruled as she ordered a copy of her ruling to be sent to Justice Minister Owen Bonnici.

The case in question dates back to July 2014 when police searched the Sliema home of Marieclaire Camilleri and found six small cannabis plants in one pot.

The woman, now 39, was charged with cultivating cannabis.

During the hearing the woman had pleaded guilty. But the court insisted on hearing the evidence. Ms Camilleri said she cultivated the plants for her personal use and smoked about six joints a day to help her cope with anxiety.

What’s wrong with the law?

According to law, a person found guilty of cultivating cannabis faces a jail term ranging from six months to 10 years.

The 2014 drug law reform introduced Article 7 of the Drug Dependence Act.

This was meant to distinguish between people who cultivate for their personal use and traffickers, to ensure that the former don’t end up behind bars.

The article states: “A person found guilty of cultivating the plant cannabis in a small quantity not exceeding one plant, in circumstances where the Court is satisfied that such cultivation was for personal use, shall not be liable to a mandatory term of imprisonment.”

Magistrate Natasha Galea Sciberras said that courts had to abide by the laws made by lawmakers and she had no choice but to jail the woman, even though she was convinced the cannabis was for her personal use.

“The court can’t fail to note that the law as it is today can easily lead to decisions that defeat the purpose for the introduction of the law that remains draconian as it does not suitably distinguish between who truly deserves effective imprisonment,” she said.

Magistrate Galea Sciberras, who is mostly employed hearing drug-related cases, had raised these concerns two years ago when she declared that although she welcomed the 2014 reforms, she felt some revision would be in order. She called for greater sentencing discretion in such cases.

This issue has also been raised several times by former Nationalist MP and criminal lawyer Franco Debono.

“The law could be amended to the effect that the applicable criterion and distinction should be whether cultivation is for exclusive use or else for trafficking, thus bringing this disposition in line with the rest of the law and avoiding creating anomalous situations arising out of the arbitrary ‘one plant’ rule introduced by the recent amendments,” he said.