A convicted arsonist who set fire to the door of a family home nine years ago has failed in his bid to challenge the Attorney General’s discretionary powers which were allegedly discriminatory in his regard.
Martin Marco Baldacchino, a reformed drug addict, was sentenced to a prison term of four and a half years after pleading guilty to the arson attack in Main Street, Qormi back in August 2011.
He had been caught red-handed by an off-duty constable, flinging a petrol-doused t-shirt at the front door of the residence.
The accused had subsequently admitted to having committed the act “for a shot of heroin”.
When making submissions on punishment at the man’s trial in December 2016, the prosecution had pointed out that the accused, although under the influence of drugs, must have been aware of the presence of family members inside the house.
A married couple was at home when the fire broke out, the husband having had just returned from night duty at the Corradino Correctional Facility, while their son happened to be on the roof with some workmen.
Later, the mother had told investigators how she had been alerted by the smell of burning and had been met with a blaze when opening the front door.
The family had to scramble out through the windows, seeking neighbours’ help to put out the flames.
Pending appeal proceedings, his lawyers had requested a constitutional reference, arguing that in similar cases of arson, the Attorney General had pressed charges for the lesser offence of arson that did not involve danger of life.
However, in this case, the Attorney General refused to accept the accused’s admission to the lesser crime, insisting that although there had been no loss of life, the accused “could have foreseen that any person was actually in the place” when setting fire to the door.
In October 2019 the First Hall, Civil Court rejected Baldacchino’s argument, observing that each case involved particular circumstances and even identical charges did not necessarily result in identical punishment, since facts and evidence varied from case to case.
The law granted the AG discretionary powers to decide upon the charges to be issued and, when engaging in plea bargaining, the AG was to ensure that the punishment agreed upon reflected the gravity and nature of those charges.
Moreover, whatever the outcome of the plea bargaining exercise, the Court always had the final say and was not bound to accept the punishment agreed upon.
Those conclusions were reaffirmed more recently by the Constitutional Court where the matter ended up on appeal.
The Court, presided over by Chief Justice Joseph Azzopardi and Mr Justices Giannino Caruana Demajo and Anthony Ellul, once again rejected the appellant’s arguments, stressing that each case presented different factual circumstances.
The appellant seemed to imply that whenever a person was accused of an identical offence, the AG’s hands were tied, meaning that, as in this case, he would have to issue charges for the lesser crime and agree to a suspended sentence as punishment.
Failure at plea bargaining did not mean that the accused had been denied a fair hearing, observed the Court, pointing out that the appellant’s claim had nothing to do with the right to a fair hearing as envisaged under article 39 of the Constitution and article 6 of the European Convention.
Baldacchino had been legally assisted all throughout the proceedings and had voluntarily registered an admission, the Court went on, adding it had no authority to force the AG to reach an agreement at plea bargaining.
As for the appellant’s reference to other “identical” cases which had ended in a suspended sentence, the Court observed that this was not a case of “like with like,” pointing out that Baldacchino, unlike the perpetrators in the cited cases, had been “commissioned” to carry out the crime.
“Society has every right to be protected from the kind of crime committed by the appellant,” the Court said, noting further that the accused had also breached a probation order.
The appellant’s argument had “absolutely nothing to do” with discrimination as a fundamental right in terms of law.
If anything, other similar cases were to be taken into consideration in the criminal proceedings when meting out punishment, remarked the Court, ordering a copy of the judgment to be delivered to the Court of Criminal Appeal for proceedings to continue.
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