by Jacob Magri – Paralegal
Generally speaking, the term ‘recidivist’ refers to ‘relapse’, which derives from the Latin term ‘recado’. In terms of Article 49 of the Maltese Criminal Code, “A person is deemed to be a recidivist, if after being sentenced for any offence by a judgement which has become absolute he commits another offence.” Article 50 of the same Code goes on to explain the effects of a previous conviction for a crime. This section states as follows:
“Where a person sentenced for a crime shall, within ten years from the date of the expiration or remission of the punishment, if the term of such punishment be over five years, or within five years, in all other cases, commit another crime, he may be sentenced to a punishment higher by one degree than the punishment established for such other crime.”
It is the view of the general public that once an offender relapses and commits a second offence, punishment should by default be more severe when compared to his first conviction. However, this might not be ideal in all scenarios especially when considering that each time a wrong doer is punished, he is punished for the wrongful act itself and the second offence committed might be of minor importance, in which case the court might not wish to increase the prescribed punishment by any degree.
In fact, certain prominent criminal law jurists, including Carminiani and Pessina believe that a recidivist, should not be given a harsher punishment because the fact that he has served his sentence means that the effect of that sentence has been wiped out. Therefore, an accused person should only be given punishment commensurate with the crime committed at the time. However other jurists, such as Carrara, contend that recidivism is an aggravated circumstance since it shows that the offender has displayed a more evil disposition and it would seem that that the first punishment did not deter him from committing a second offence.
It is to be noted that the fact that the prosecution exhibits the conviction sheet of an accused person in court in his proceedings, wherein it transpires that the accused person has already got a number of convictions registered on it does not per se mean that the accused person, if found guilty of the charges brought against him, is also found guilty of being a recidivist. The prosecution has to prove such a charge just like the rest of the charges.
Thus, the prosecution is expected to first of all exhibit a true legal copy of the previous judgments delivered against the accused and moreover has to summon the prosecuting officer involved in that same case to confirm the identity of the current accused in relation to such judgment unless the identity of the wrong doer is already clearly indicated in the judgments exhibited. In a number of recent judgments, the Court has also been willing to acquit the accused of the charge of recidivism on the basis that no court registrar would have been summoned to testify in the proceedings in order to declare under oath that the judgments previously delivered against the accused, and exhibited in the acts of the proceedings, are in fact res judicata, i.e. absolute and final. It is only when this is done that the court can find the accused guilty of the charge of recidivism – which incidentally is a charge per se.
In fact, in the judgment in the names ‘Il-Pulizija vs Paul Abela’, delivered by the Court of Criminal Appeal (Inferior Jurisdiction) on the 10th of December, 2004, the Court held that:
“Bħal ma dejjem ġie ritenut, l-aħjar prova sabiex tiġi ppruvata xi akkuża ta’ reċidivita` hi li tiġi esebita kopja uffiċjali tas-sentenza relattiva, u wara ssir il-prova ta’ l-identita.` L-obbligu tal-prosekuzzjoni li tesebixxi dawk is-sentenzi jibqa’ dejjem, minkejja l-esenzjoni mogħtija mill-akkużat li tipproduċi prova ta’ l-identita`. Jekk ma tiġix esebita jew prodotta tali prova permezz tal-kopja uffiċjali tas-sentenza li tissemma fl-akkuża, allura wieħed ma jistax jgħid li saret l-aħjar prova dwar jekk verament precedentement l-appellant kienx ikkommetta xi reat ieħor li tiegħu ġie misjub ħati.
Għalkemm il-fedina penali tista’ tittieħed in konsiderazzjoni mill-Qrati ta’ Ġustizzja Kriminali biex ikunu jistgħu jikkalibraw il-piena, l-imputazzjoni tar-recidiva dejjem tinneċessita li ssir il-prova tal-kundanna jew kundanni preċedenti; tali prova ssir permezz ta’ kopja legali tas-sentenza jew sentenzi preċedenti kif ukoll billi jiġi ppruvat a sodisfazzjoni tal-qorti – permezz ta’ xhieda jew minn eżami tal-istess sentenza jew sentenzi (jekk din jew dawn ikunu jagħtu l-konnotati meħtieġa tal-persuna kkundannata) jew minn eżami tal-atti tal-kawża ta’ dik is-sentenza jew ta’ dawk is-sentenzi preċedenti – li dawk issentenzi jirreferu għall-persuna li tkun qed tigi akkużata bir-reċidiva.”
There are various types of punishments that may be meted out once guilt is established. Apart from imprisonment there are instances as specified by the law itself were for instance incarceration is suspended for a period of time. However, a suspended sentence cannot be given in all instances. Its applicability is restricted solely in those instances where the sentence of imprisonment is for a term of not more than two years, in which case the sentence can be suspended according to article 28A of the Criminal Code for a term of not more than four years and not less than one year, provided the wrong doer does not commit another offence punishable with imprisonment.
Article 28A (7) of the Criminal Code however provides instances wherein the prison sentence cannot be suspended, one of them being; where the person sentenced is a recidivist within the terms of Article 50 of the Criminal Code. Thus, the law clearly requires that where the prosecution has managed to prove to the satisfaction of the Court that the accused person is guilty of being a recidivist in terms of article 50 of the Criminal Code, he cannot be handed a suspended sentence. Therefore, in these cases the courts discretion of sentencing is tampered with by the legislator.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on firstname.lastname@example.org.