Sentencing policy

Prime Minister Robert Abela has deemed fit to call on the courts to be ‘on the side of society’ and to review sentencing policies without being bound to decades-old decisions.

For certain offences, our criminal law lays down a mandatory and fixed punishment; for others, it establishes a minimum and a maximum, while for a vast range of others, it affords wide discretion to the good judgement of our judiciary.

Being impossible for the law to anticipate with exactness the punishment best suited to each individual offence, our legislators have in consequence given more and more latitude to the judiciary for the employment of that necessary discretion, the exercise of which is so important for the proper administration of criminal law.

A judge or magistrate has no knowledge upon which to determine the punishment to be meted out other than the facts and circumstances which are ascertained at the trial of an offender.

I am against mandatory sentencing guidelines since they would simply increase uniformity in sentencing at the cost of fairness.

Such a guideline system would rarely take all relevant case characteristics into consideration and, as a result, impose sentences in particular cases that would provoke a backlash in society. Rather, punishment, in order to

satisfy public opinion, should be as nearly uniform as the circumstances of the case permit.

Justice must, in fact, be just and, to this end, the judge or magistrate must apply himself/herself.

The guilty party and the public should be made to understand that, in determining punishments, the judgement of the court is adapted to each individual case and that it is beneficial, upright and impartial.

This is why it is difficult to reconcile the application of punishment in different courts differently presided.

Whatever theory of crime and punishment one holds, it must be apparent that the punishment should be administered with the same celerity, certainty and uniformity as characterises the administration of the law up to that point.

Only in the application of such principles should there be uniformity and consistency. That this desirable uniformity of judgement is difficult to accomplish I am well aware. Its necessity and its difficulty should impel us to strive harder for its accomplishment. I do not view the situation in an altogether pessimistic light.

It is gratifying to note the increasingly large number among our judiciary who are making an intensive study of this most interesting and absorbing subject.

MARK SAID – Msida

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