The upcoming drug reform is being based on a false premise as personal drug users are never sent to prison, former judge Joseph Galea Debono told Times of Malta.
“Drug users aren’t sent to prison, this is a misnomer. They are given a slap on the wrist, perhaps a conditional discharge and a fine but certainly not prison.
“I don’t understand what all this hullaballoo is about,” he said adding that the same was true of repeat offenders.
The retired judge was reacting to Prime Minister Joseph Muscat’s statement that the current system of sending drug users to prison was “failing our youths”.
Dr Muscat had said a drug reform was next on the government’s agenda after championing the civil unions issue last month.
But the government has been vague on how this would be implemented and the Prime Minister’s Office has not replied to questions.
In his first public statement since retiring four years ago, Judge Galea Debono said he was dumbfounded by Dr Muscat’s statements which, he said, did not tally with the legal stance adopted by the courts.
“The system is not in favour of sentencing to prison those found in possession for personal use, so I don’t understand the Prime Minister’s comments,” he said.
Judge Galea Debono said he only knew of two cases of drug users having been sentenced.
One of the cases made the international headlines after a 16-year old Swiss student was imprisoned for six months when she was found in possession of under one gram of cannabis in 1997.
The student, Gisela Feuz, had admitted to bringing a small sachet of the drug with her from Switzerland in the aim of sharing it with her boyfriend.
She was imprisoned for a mandatory six-month period after a court found her guilty of importing drugs with the intent to traffic.
The system is not in favour of sentencing to prison those found in possession for personal use, so I don’t understand PM’s comments
Criminal defence Joe Giglio said the law had since been changed to avoid similar situations.
“When this case happened, importing drugs was tantamount to trafficking even if they were for personal use.
“An amendment was made and now courts can exercise their discretion in such instances,” he said.
Dr Giglio agreed with Judge Galea Debono that drug users were never sent to prison.
He said the penalty of conditional discharge did not even affect the individual’s criminal record and did not tarnish their reputation.
Judge Galea Debono said his conviction that drug users were not imprisoned was supported by the fact that there had been no legal appeals by drug users sentenced to serve time.
“If people were sentenced to prison I would have seen an appeal filed, but there have been none,” he said.
Dr Galea Debono explained Judge David Scicluna had set up an unofficial drug court within the magistrates’ courts that handled nearly all cases of drug possession.
This, he said, had set a standard of probation or conditional discharge for all cases in which the courts decided the offender did not intend to deal the drugs.
Criminal defence lawyer Roberto Montalto was also surprised by the Prime Minister’s statements.
“Dr Muscat was probably trying to get political mileage out of the statements he made. The fact is that it just isn’t the case,” he said.
Dr Montalto said it was a given among defence lawyers that clients facing possession charges would expect a conditional discharge.
Repeat offenders, he added, would almost always get a fine.
The law technically allowed for the imprisonment of drug users for up to one year, but this was not done in practice, he explained.
“If you were my client and found with a gram of cocaine, you could be certain that we’d walk into court and you would walk away on a conditional discharge,” he said.