The Malta Independent 24 September 2018, Monday

Man has cocaine possession prison sentence reduced as court finds it was not proportional to crime

Wednesday, 12 September 2018, 13:12 Last update: about 12 days ago

A man has had his four-year prison sentence for cocaine possession reduced to a one year nine month term on appeal, after the Court of Appeal found that the original sentence was not proportional to the crime.

In its decision, the court also took into consideration the seven-year span taken from the date the crime was committed to the final decision by the appeals court, as well as the views of the legislators on illicit drugs as expressed by the recent amendments to the drug laws.

In a case dating back to November 2011, Kurt Buttigieg, a taxi driver, had been accused of trafficking cocaine, of being in possession of the drug not for his exclusive use, of smuggling the drug in an area which was within 100 metres of a school or area frequented by young people, and of relpsing.

In 2014, the Magistrate's Court had found him not guilty of trafficking the drug, but had declared him guilty of the other charges, and sentenced him to four years in prison. It had also ordered him to pay a €5,000 fine.

In his appeal, Buttigieg asked the Court of Appeals to confirm his not guilty verdict for the trafficking charge, and to also liberate him from the possession charge and that relating to smuggling the drug close to a school.

Alternatively, he asked the court to change the sentence he was given to one which is less harsh and more fit for his case.

In the case in question, Buttigieg had been arrested after having been stopped in his taxi by the police, who found on him a sachette containing some substance, and €600 in cash. The police also found, on the ground, around one and a half metres away from Buttigieg's car, a bag containing another 13 sachettes.

The police had also, before having stopped Buttigieg, seen a passenger board his taxi, only to leave the vehicle after it had travelled a short distance. This passenger had been stopped by police, but no drugs had been found on his person, and no charges were brought against him.

Buttigieg, in his appeal, argued that - while he was conceding that a single sachette which he admitted had within it a powder containing around 25% cocaine - he was disputing the first court's reasoning that the other 13 sachettes, which he says were found a number of metres away from his car, could have belonged to no one else but him.

The appeals court, however, saw how the appellants claim of the sachettes having been found "a number of metres" away from the car was incorrect, as the distance was that of only one and a half metres away.

Moreover, it had been raining the night the appellant was arrested, but the bag containing the sachettes was not wet when the police found it, leading them to conclude that it had just been thrown out of the car by Buttigieg.

Forensic tests on the 13 sachettes found that they contained cocaine, however none of the fingerprints on them were found to have matched the appellant's.

The first court had seen how the cocaine sachette found on Buttigieg was tied with the same style of knot as the other 13 sachettes. It had also seen how the police had found bags in his residence which were cut in a way which is usually used to store drugs.

The court had determined, therefore, that the only conclusion it could reach was that the sachettes found on the ground were Buttigieg's. The appellant had also not brought any proof to the contrary.

The appeals court, quoting case law, noted how while the evidence against Buttigieg was mostly circumstantial, circumstantial evidence is many time the best type of evidence. And if there is a combination of circumstantial evidence, this can be enough to amount to proof.

The purity of the cocaine found in the 13 sachettes was of precisely 28%, exactly the same as of the cocaine in the sachette found on the accused, the appeals court noted.

The appellant argued that the fact that no fingerprints were found on the 13 sachettes should work in his favour. The appeals court, however, pointed out that the fingerprints expert had said that no fingerprints which were legally of enough quality to be used for a comparison were found to be of the accused.

Buttigieg also argued that he would have expected the fingerprints of the passenger to have been compared to those on the 13 sachettes. The court, however, rejected this argument, noting that the passenger hadn't even been charged with anything.

The appeals court, therefore, concluded that it saw nothing unreasonable in the way the first court had decided that the 13 sachettes had been in the appellant's possession previous to being found.

Regarding the appellant's argument that his sentence was too harsh, he (Buttigieg), argued that he was considered to have been a relapser because he had previously been found guilty of offences related to traffic, dangerous driving and threatening. Given the nature of these offences, he argued he should not have been served a harsh sentence for being a recidivist.

The appeals court, however, threw cold water on this argument. "The less is said about this type of reasoning, the better", it said.

"It is not necessary for the recidivism charge be the same as the charge the accused is being tried for, in contrary to what the appellant seems to be alluding to," it underlined.

Buttigieg also brought forth the argument that he had stopped within a close distance of a school or place frequented by young people when the drugs were found on him, because this is where the police had stopped him as he was driving his taxi.

This argument was rejected by the appeals court, which noted that the appellant had been within 100 metres of the Manchester United Supporters Club, the Youth Centre and the Our Lady Immaculate School at every point indicated by the prosecution. The appellant was within these young people's establishments when he was stopped by the police, when he was searched, when he had been seen parked for the first time when the passenger had boarded, while he was travelling, and when the passenger left the car.

The first court, therefore, had applied the law correctly when finding the appellant was a recidivist and regarding the 100 metres distance, the appeals court found.

A final argument made by the appellant was that, in another case where a person had been caught with a greater quantity of drugs, the court had handed down a lesser sentence. The appeals court, however, said it would not be considering this argument, since the merits of the case referred to by the appellant were different to his, and did not contain the aggravating factors of recidivism and distance.

The appeals court, said, that, in terms of the appellants argument that the sentence was too harsh, it would be taking into consideration three elements: the proportionality of the sentence to the crime; the length of time taken for the case to be decided; and the recent ammendments to the law which reflected the legislators' views about drugs.

Buttigieg's case, having started in November 2011, had taken until October 2014 to be decided upon by the first court, and was ony being finally concluded now, with the appeals court's decision. The appellant was in no way to blame for this delay.

After considering this, as well as the element of proportionality, the court agreed with the accused that there was reason for the sentence to be modified.

Taking these factors into consideration, the court confirmed the accused's not guilty verdict for trafficking, and confirmed his guilt for the charges relating to recidivism and distance. It then changed his sentence from four years in prison and a €5,000 fine to a prison term of one year and nine months, and a fine of €3,000.

Judge Giovanni Grixti presided.

Lawyer David Gatt appeared for the appellant.

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