Judge raps magistrates over suspended jail terms

An Eritrean immigrant, who had been handed down a six-month suspended jail term for the attempted violent indecent assault of a woman, yesterday had his punishment changed to an effective jail term after an appeal court ruled that suspended jail terms were not being applied in a satisfactory manner by the Magistrates' Courts.

While noting that he was "mystified" at how, given the circumstances of the case, Gide Idris Mahder, 27, had been charged with attempted violent indecent assault when he could have been charged with attempted rape, Mr Justice Joseph Galea Debono ruled that Mr Mahder deserved an effective jail term.

He added that, when it came to handing down suspended jail terms, there was a need for greater sensitivity and attention by the courts not to give the impression that they were not responding to society's imperative need to be protected from rising crime.

Mr Mahder, who had been in Malta for seven months, had been given a six-month jail term suspended for a year after admitting to the attempted violent indecent assault of a Maltese woman, slightly injuring her and offending public morals in Floriana on March 17.

The Attorney General had filed an appeal requesting that the punishment be converted to an effective jail term to reflect the serious nature of the crime.

Mr Justice Galea Debono noted that Mr Mahder faced a prison term ranging from a month to seven-and-a-half months and, therefore, the punishment handed down by the Magistrates' Court was within the legal parameters.

In fact, in his appeal, the AG was not objecting to the jail term but to the fact that it had been suspended.

In order to decide on this, the judge felt it was necessary to hear the evidence of the victim especially since the crime of violent indecent assault included gestures ranging from an unwanted kiss on the cheek to more violent acts.

In her testimony before the Court of Appeal, the woman explained how she was walking towards the Floriana car park at night after work and, while she was speaking to her husband on her mobile phone, she felt someone grab her from the neck.

As she started screaming and falling, Mr Mahder, who had been drinking at a nearby bar, gagged her with his hand to muffle her screams. She bit him and he signalled that he would slit her throat and then punched her in the eye.

As she tried to break loose, he pulled down her trousers as he did his. That was when her husband and a police officer arrived at the scene and arrested the man.

On hearing this, the judge ruled that he was mystified how Mr Mahder had only been charged with attempted violent indecent assault because the evidence showed the elements of violent indecent assault and even of attempted rape.

The judge added that the first court was right to have reached a six-month jail term after taking note that Mr Mahder had filed an early guilty plea and had a clean criminal record, although he had been caught red-handed.

The judge did not agree with the part where the jail term had been suspended.

"This court notes that the dispositions that regulate the handing down of a suspended jail term are not always being applied in a satisfactory way.

"It also seems that it is becoming a practice in the Magistrates' Court that, when a person is apprehended when committing a crime... no matter how serious, s/he admits on arraignment to be given some form of mitigated punishment, or a suspended jail term, and that way within a few minutes, that person is free again, as though nothing had happened."

After hearing the witness, the judge noted that it was clear that this was a very serious case. Had the Magistrates' Court taken the trouble to listen to the evidence of the witness, who after suffering a black eye and bruises to the neck had not even been notified that her assailant had been arraigned, it probably would have handed down an effective jail term.

Assistant Attorney General Stephen Tonna Lowell prosecuted.

Lawyer Patrick Valentino represented Mr Mahder.