Akif and Sina were two young boys separated from their mothers and taken into state care following their jail sentence by our criminal court. That episode sparked widespread anger in societal Malta. This has once more raised the perennial question of whether there should be sentencing guidelines to achieve uniformity thus preventing the imposition of sentences in particular cases that are biased relative to the ideal or best sentence. Perhaps the Turkish mothers’ jail sentence was a case in point.
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 a wide discretion to the good judgment of our judiciary. It 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 to the proper administration of the 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.
From the outset, I make it clear that 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 judgment of the Court is adapted to each individual case, that it is beneficial, upright and impartial. This is why it is difficult to reconcile the application of punishment in different courts differently presided. I have no doubt that the weakest point in the whole range of our correctional system is in the administration of the punishment, in other words, in the application of the social remedy. There is a small benefit to be derived from the intricate and expensive systems of our police investigations, court examinations and judicial procedure unless, having determined upon a method of suppression and correction, it is administered not only wisely but equitably. 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. As the primary purpose of punishment is to prevent a repetition of crime, the failure to apply it understandingly necessarily indicates a failure of the remedy to accomplish its purpose.
We must have a Judiciary that in determining the sentence, would go at great pains to take into consideration every possible factor bearing upon the offender, as well as the consideration of the offence itself. Age, previous record, familiar environment, all are or should be considered. What would be reformatory punishment for one might not be adapted to the case of another. Society should be made to understand these things. When other offenders or the public see that A is released on a suspended sentence or is placed on probation upon a conviction for aggravated theft, while B, for the same offence, is sent to prison for a term of years, they cannot understand why these distinctions are made. They still think, unconsciously, of the old idea of a given punishment for a given crime.
Picture it as a great social hopper or funnel into which are constantly being drawn those unfortunate members of society who have violated the law for one reason or another. Their guilt having been judicially determined they appear before the judge or magistrate for the imposition of such penalty, within the limits of the law, as may be prescribed. Upon them now rests the final responsibility. Their decision is important and they should exercise infinite care that the punishment is adjusted accurately to the crime and to the needs of the guilty party. The consequences are momentous. The offender may have, probably has, a family dependent upon him for support and should consider what it means to them. He may be a man of good purpose and high ideals, subjected to too great a temptation. He may be youthful and led astray by vicious companions. He may be a first offender or perhaps a victim of circumstances. Possibly he is mentally irresponsible, or depraved, or vicious, or an old offender. Each case presents a separate field of study, in no two are circumstances exactly alike, and each must be handled as a distinct social problem and with a realization on the part of the judiciary of the importance of the decision. Failure at this point means failure of the whole elaborate system society has built up at such trouble and expense for its protection.
Only in the application of such principles should there be uniformity and consistency. That this desirable uniformity of judgment 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 in our Judiciary who are making an intensive study of this most interesting and absorbing subject.
Dr Mark Said is advocate