A father and son facing a 55-month and 33-month jail term respectively for attempting to steal equipment from a derelict Marsa factory had their punishments reduced to five months on appeal. 

Keith Joseph Mallia, 48, and his son Mario, 21, from Għaxaq, had landed the lengthy jail terms and ordered to forfeit €22,000 in bail bonds on conviction by a Magistrates’ Court in 2018. 

They were arrested in November 2017, when police came across father and son inside the rundown premises at Albert Town, formerly used as cold stores.

An anonymous phone call had alerted the police to the presence of intruders, reporting strange noises as though heavy objects were being dragged around, coming from the long-abandoned stores. 

Entering the premises through a garage door, held shut by means of a length of thin metal wire, policemen came across the two men, one of them sitting on a wooden pellet with his pants pulled down. 

They had an urgent call of nature, the men told the police, denying any intention to steal.

However, the officers noted a disconnected chiller, its water pipe still dripping and oil stains from the unit evidently fresh.

The intruders had no tools in their possession, but a search of their van parked outside, yielded a small sledgehammer, a set of pliers, three ropes and sealer. 

Father and son were subsequently charged with attempted theft, breaking into the factory premises, willful damage to third party property as well as for having been found in possession of tools normally used in break-ins.

The elder man was charged with driving a vehicle under an expired licence, breaching a suspended sentence as well as four bail decrees, besides being a relapser.

His son was charged with relapsing, breaching a conditional discharge, a bail decree and a suspended sentence.

Both were jailed and ordered to forfeit their bail bonds. The van was also to be confiscated. 

In their appeal, the accused argued that the prosecution had failed to prove the attempted theft. Besides, the chillers were abandoned property and the punishment was excessive, the they claimed.

The Court of Criminal Appeal, presided over by Mr Justice Aaron Bugeja, clearly stated that it did not believe the accused’s excuse for entering the abandoned building. 

Nor did the court uphold their argument that the evaporators were “res derelictae” in terms of law, since there was no proof that the items had been “unequivocally and irrevocably” abandoned by the owner. 

Although one of the owners had testified that the equipment was to be scrapped, no one had authorised its disposal, the court said. 

The evidence pointed to a case of simple theft, observed the court, citing criminal doctrine saying that, theft “is completed and not merely attempted” when the thing is moved from one place to another even in the same room. 

The prosecution had failed to prove the factors that made this an attempted aggravated theft, went on the court. 

The factory door was not locked but held shut by a thin metal wire and the forced entry had not been proven. 

The incident had taken place around 4.30pm, before sunset, which meant that the aggravation by time did not subsist.

Nor had the prosecution confirmed the value of the non-functioning chiller or any copper component that might have made it worthy scrap material, said the court. 

Neither was there evidence to show that the accused had caused voluntary damage when accessing the premises. 

As for the charge against the father of driving without a licence, the prosecution did not establish who had actually been driving the van that day. Moreover, its confiscation was to be revoked since the van was registered in the name of a third party who was totally extraneous to the case. 

The prosecution had also failed to produce sufficient evidence of the various alleged breaches of previous court orders, prompting the court to declare that it could not supplement the missing proof with “its own assumptions and suppositions”.

On the basis of the evidence put forward, the court concluded that the accused could only be found guilty of attempted simple theft and unjustified possession of tools possibly used in break-ins, condemning each of the men to a five-month effective jail term. 

The forfeiture of bail and the sums attached thereto was also revoked.

Lawyers Franco Debono and Amadeus Cachia were defence counsel.