What are the justifications for punishment?
Modern Penal Law justifies punishment based on three key principles:
- retributive,
- preventive, and
- rehabilitative effects.
The retributive effect, as explained by jurist Francesco Carnelutti, seeks to restore societal order by requiring offenders to make amends for disrupting peace.
The preventive effect acts as a deterrent, using the fear of punishment to discourage crime. It works on two levels: general prevention, which restrains society from committing crimes, and specific prevention, which discourages repeat offenses by those who have experienced punishment. The stimulus behind this principle is that if penal laws weaken or penalties become lenient, the deterrent effect fades, increasing the risk of criminal behaviour.
Lastly, the rehabilitative effect focuses on reforming the offender rather than just punishing them, helping them break away from criminal tendencies and reintegrate as productive members of society.
What is Recidivism?
The term "recidivist" originating from the Latin word "recado," generally refers to the concept of "relapse," i.e. committing another offence upon already having been convicted of a crime.
In fact, Article 49 of the Maltese Criminal Code, holds that "a person is deemed to be a recidivist if, after being sentenced for any offence by a judgement, even when delivered by a foreign court, which has become res judicata, he commits another offence."
Article 50 further explains how a previous conviction might impact sentencing. In this regard, if an individual is convicted of a crime and commits another offense within ten years after completing or receiving a remission of a sentence longer than five years, or within five years for shorter sentences, they may face a punishment that is increased by one degree compared to the penalty established for the subsequent crime.
Maltese Jurisprudence on Recidivism
In order to understand the concept of recidivism with more clarity, reference to Maltese jurisprudence is essential. In fact, in the case "Il-Pulizija vs Vincent Xuereb1"the Court of Criminal Appeal held as follows:
"Ir-reċidiva mhix ir-reat per se iżda hija addebitu fuq il-persuna tal-imputat in kwantu ċirkostanza aggravanti inerenti għall-persuna tal-imputat.2'
The court also made reference to the Manuale di Diritto Penale which holds that "La recediva e' una circostanza del reato: in particolare si tratta di una circostanza aggravante soggettiva, e piu' precisamente una circostanza aggravante inerente alla persona del colpevole.3'
Correspondingly in the case of "Il-Pulizija versus Steven Zahra4"the courtheld as follows:
"L-effett tar-reċediva mhuwiex li l-istess persuna qed tiġi punita darbtejn fuq xi reat anteċedenti li fuqu tkun ġà ġiet mogħtija piena, iżda li fil-fatt dik l-istess persuna qed tiġi punita għal fatt ġdid b'mod aktar sever u differenti minn persuna li tkun qed tiġi punita għall-istess fatt iżda għall-ewwel darba u bla preċedenti.
Ir-reċediva fil-fatt hija ċirkostanza merament personali, u ma għandha ebda referenza għall-kontenut objettiv la tar-reat preċedenti u lanqas tar-reat attwali, billi l-awment fil-piena bħala effett tar-reċediva mhux inflitt għall-ewwel reat, li l-piena tiegħu ġà ġiet espijata jew kundannata. Lanqas dan l-awment mhu inflitt għar-reat attwali li baqa' l-istess fil-kontenut materjali tiegħu. L-awment fil-piena għandu rapport biss mal-personalità tal-ħati u jsib ir-raġuni tiegħu fil-persistenza tal-ħati fid-delinkwenza5'.
Public opinion often suggests that once an offender reoffends, the punishment should be stricter than their first conviction. However, this may not always be appropriate, as each crime should be judged on its own merits. In fact, often times the second offence may be less serious, leading the court to decide against increasing the penalty.
How is guilt for recidivism established?
The mere presentation of an accused's criminal record in Court does not automatically establish guilt for recidivism. The prosecution must prove this charge, just like any other.
There have been instances where the Court acquitted defendants of recidivism when no court registrar was called to confirm under oath that the judgments were final and binding. Only once this proof is established can the court find someone guilty of recidivism, which is a charge in itself.
For instance, in the case "Il-Pulizija vs Paul Abela,"6 the Court ruled that the best proof of recidivism is an official copy of the relevant judgment, followed by evidence of the accused's identity. The prosecution's obligation to produce these judgments remains, even if the accused has waived the right to provide identity proof. If such proof is not submitted, the best evidence of the prior conviction cannot be established.
The concept of Suspended Sentence
Various types of punishments can be imposed upon the finding of guilt. Besides imprisonment, the law allows for situations where incarceration is suspended for a certain period. However, this can only happen if the sentence is no longer than two years. In such cases, the sentence may be suspended for a period between one and four years, provided the offender commits no further offenses punishable by imprisonment.
That said, a prison sentence cannot be suspended if the person is a recidivist. Thus, if the prosecution successfully proves recidivism, the court has no discretion to impose a suspended sentence, as this decision is precluded by law.
Justifications of punishment vis-à-vis Incarceration and Recidivism
Meanwhile the concept upon which punishment shall be calculated, as described above, intends to specifically consider the rehabilitative aspect of establishing such punishment, in contradiction, the concept of recidivism goes counter to the latter, by punishing re-offending individuals by one degree in comparison to the prior crime.
To this effect, it leads one to ask what the true driving force behind the establishment of recidivism within the Maltese Penal Code is.
In fact, the Court emphasised on various occasions, on the necessity of the punishment being established from a reformative perspective at the expense of a detriment measure. In fact, in the case of "Il-Pulizija vs. Stephen Spiteri",7 the Court held as follows:
"Konsiderata l-piena bħala mezz ta' riforma tal-imputat fl-interess tiegħu u tas-soċjetà, iżjed u iżjed din il-piena karċerarja tidher inadatta. Infatti, permezz tagħha, tifel ta' kondotta sa issa tajba, u li diġà, bil-fatti, wera'; sogħba tar-reat li għamel, ser jinxteħet għal soġġorn ma' nies li fil-maġġjoranza tagħhom huma delinkwenti reċidivi multipli.
B'hekk minflok jiġi riformat, hemm il-possibiltà illi huwa jieħu lezzjonijiet fid-delinkwenza ... tara illi huwa opportun illi ineħħi l- impressjoni illi l- iskop tal-liġi kriminali u tal-piena huwa biss illi jkun ta' deterrent biex jgħallem lil dak li jkun illi 'crime does not pay'.
Huwa ċertament kunċett illi għamel żmien u kien il-kunċett predominanti, pero llum il-kunċett m'huwiex aktar ta' piena retributtiva, imma ta' sistema restorattiva, fejn anke jekk hu possibbli u safejn hu possibbli, u tenut kont anki taċ-ċirkostanzi kollha tal-każ, kif ukoll tal-preċedenti kriminali tal-imputat, isir tentattiv biex mhux biss issir rikonċiljazzjoni bejn l-aġent tad-delitt u l-vittma li tkun sofriet danni u anke sofferenzi oħrajn, imma anki illi jkun hemm possibilita' illi dak li jkun jiġi informat u jikkonvinċi ruħu illi għandu jsegwi t-triq it-tajba.8"
Conclusion
Having explored the principles behind sentencing recidivists and the justification for punishment, one might question whether the recognition of recidivism under Maltese Penal Law genuinely aims to rehabilitate offenders, or if it primarily functions as a retributive and preventative measure.
The Court itself rightfully established that offenders must be guided towards understanding and choosing the right path, and on the necessity of moving away from the outdated idea that the sole purpose of criminal law and punishment is to deter crime.
Therefore, one must ask, is the establishment of recidivism under Maltese Penal Law outdated and non-restorative or essential and effective?
It is important to move away from the outdated idea that the sole purpose of criminal law and punishment is to deter crime by teaching that "crime does not pay." While this concept was dominant in the past, today's approach has shifted towards a restorative system. This modern perspective seeks, as far as possible, to account for the specific circumstances of each case, including the defendant's prior criminal history.
The goal is not only to reconcile the offender with the victim who suffered harm, but also to guide the offender toward understanding and choosing the right path.
Footnotes
1 16th May 2023.
2 English Translation: The recidivism is not the crime per se but it is a charge on the defendant in terms of an aggravating circumstance inherent to the defendant.
3 English Translation: Recidivism is a circumstance of the crime: in particular it is a subjective aggravating circumstance, and more precisely an aggravating circumstance inherent to the guilty party.
4 26th May 1998.
5 English Translation: The effect of recidivism is not that the same person is being punished twice for an antecedent crime for which punishment has already been given, but that in fact that same person is being punished for a new fact in a more severe and different manner from a person who is being punished for the same fact but for the first time and without precedent.
Recidivism is in fact a purely personal circumstance, and has no reference to the objective content of either the previous crime or the current crime, since the increase in the penalty as an effect of the recidivism is not inflicted for the first crime, whose punishment has already been expiated or condemned. Nor is this increase inflicted for the actual crime which has remained the same in its material content. The increase in the penalty has a relationship only with the personality of the offender and finds its reason in the persistence of the offender in delinquency.
6 10th December 2004, Court of Criminal Appeal, Inferior Jurisdiction
7 22nd September 2003, Criminal Court of Appeal
8 English Translation: When considering punishment as a means of reforming the accused for their own benefit and that of society, custodial sentences often seem inappropriate. In fact, when an individual who has previously demonstrated good conduct—and who has already expressed remorse for their crime—is forced to be confined with repeat offenders, the risk arises that instead of being reformed, they may learn new criminal behaviours.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
