A man jailed for shooting a protected bird of prey has had his sentence reduced on appeal.
Kirsten Mifsud, 28, had been sentenced to one year in jail, a fine of €5,000, the revocation of his hunters' licence and his shotgun confiscated in 2015 after he shot a kestrel which ended up falling onto a part of St. Edward’s College in Vittoriosa.
The shooting of the bird had prompted Prime Minister Joseph Muscat to end the hunting season three days ahead of its scheduled closure.
In the appeal, Mifsud’s lawyers, Franco Debono and Amadeus Cachia, had argued that the man’s fundamental right to a fair hearing was breached by the joinder of hunting federation FKNK as parte civile, despite the fact that the accused was not a member of the organisation. This was a complaint of a Constitutional nature which didn’t fall within the Court of Criminal Appeal’s remit, said Mr. Justice Giovanni Grixti, as he rejected the argument.
Mifsud’s second ground of appeal was that he hadn’t been given sufficient time to prepare his defence, having been arraigned on the same day of his arrest, with the prosecution bringing all its witnesses and closing its evidence on that same day. But the court observed that the accused had informed the court that he was not going to testify or bring any evidence. Neither had he asked for a postponement. The second ground of appeal was also, therefore, rejected.
On the merits, the judge noted several witnesses as testifying to hearing shots coming from the direction where the accused had been.
The decision of the court was reasonable and legal, he said, pointing out that “the court has minutely examined the acts of the case and … from this examination this court finds nothing censurable in the decision of the court of first instance.”
The defence had argued that the punishment was excessive and that the suspension of the man’s hunting licence could not have been awarded without being first requested by the prosecution. But court, quoting the law, said this was not true. Neither was the sentence of 1 year imprisonment discretional, but was laid down in the law.
However, the court examined the appellant’s criminal record which showed that he had only one minor conviction for drug possession for which he had been conditionally discharged.
Having already been given the benefit of a first time offender, the court could impose a “stronger dose” of punishment on the accused, it said, but had to also give the man a chance to reform himself.
For this reason, the court confirmed the finding of guilt, the fine, revocation of hunting licences and the confiscation of the shotgun, whilst at the same time reducing the man’s sentence to one year in prison, suspended for two years from today.