Issue link: https://maltatoday.uberflip.com/i/490723
32 maltatoday, SUNDAY, 5 APRIL 2015 Opinion T he Court of Criminal Appeal in Il-Pulizija –v- Alfred Bugeja and Clive Agius held that the court may grant a probation order even though the accused are serving long prison sentences. Alfred Bugeja and Clive Agius were accused of the theft of a car in December 2008 and a Magistrate's Court found the pair guilty, awarding them a probation order for three years. The Attorney General appealed the sentence on the ground that the punishment was not adequate. The Attorney General argued according to Article 7(2)(c) of the Probation Act, Chapter 446 of the laws of Malta put the onus on the magistrate to see that the probation order fitted the circumstances of the case and this included the character of the accused. The Attorney General argued that the court should have weighed the negative aspects of the accused's characters with the probability of change after these are followed and helped. The prosecution pointed out that Alfred Bugeja will leave prison in 2023 and this fact should not be a mitigating factor but an indication of his character. They further argued that Bugeja never showed signs of reform. The same applied for Agius who had various opportunities to reform but failed every time. Mr Justice David Scicluna, who delivered the judgement on 25 March, 2015 held that it is not normal for the Court of Appeal to disturb the discretion of the first court in regard to the award of punishment. The Attorney general agreed that the probations were within the parameters of the law and therefore the first court could have given this punishment. The main complaint was that Art 7(2)(c) of the Probation Act was not followed, "having regard to the circumstances of the case, including the nature of the offence and the character of the offender, the issue of such order is appropriate". The Attorney General does not think that the applicant's character is conducive to probation due to this past criminal life. The court argued that it is true that the applicant's criminal record speaks for itself, however, it quoted a previous judgement, Il-Pulizija -v- George Farrugia, of 18 January, 2001, which stated that the court could not agree with the Attorney General, who was of the opinion that the applicant's situation was irreversible. Only death is irreversible. Neither did the court agree that probation should be given only to young first-time offenders. An older recidivist could be given a probation order and this could be his window of opportunity to end the cycle of prison sentences. In this particular case the appellants are serving prison sentences, but they should not be excluded from receiving a probation order. In fact this order may be useful for the appellants to prepare them when they are to leave prison. The probation officers who testified in these proceedings told the court that there is a possibility that they would have changed their lives. On the other hand Mr Justice Scicluna warned the two appellants that if they breach the conditions of probation, they cannot expect that the court will protect them in any way. The court then moved to dismiss the Attorney General's appeal. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application entitled "Change of use from garage to repack (using hand tools) pet food and pet care products, including storage of raw and finished product" was turned down by the MEPA board after it held that Class 11 operations (light industry use) are not allowed in basements located in residential areas. The board, whose decision was overturned on appeal, referred to policy 5.2 of DC2007 in support of the decision, adding that the proposed use is not identified among the listed commercial uses which are considered "acceptable" in basements. More so, the board held that access to the premises is via a shared ramp, which provides concurrent access to domestic garages, thus being in conflict with policy of 4.3 of DC2007. In this context, the board insisted that the proposed shared access would consequently have a deleterious impact on the amenity of the area. The applicant submitted an appeal to the Environment and Planning Tribunal, insisting that the proposal is of a "local nature". In addition, the appellant argued that the site consists of one dwelling along with seven underlying garages accessible from a common driveway. The applicant went on to argue that a "shared access" would be specifically prohibited in the case of sites featuring a mixture of dwellings and commercial outlets, maintaining that in his case, the "access" under consideration is exclusively tied to a complex of garages. The applicant also made reference to a number of planning permits where the authority allegedly approved similar permits for "disproportionately larger developments and higher car turnover" having access from "garage/parking accesses". As a final remark, the applicant underlined that his proposal is essentially "a small family business start-up", whereby "the operations are no different than normal activities a hobbyist would do in his/her garage at weekends". For its part, the authority reiterated that, according to current policies, Class 11 use is not listed as one of the acceptable uses for basements in residential areas. Even so, the authority highlighted that the permits quoted by the applicant relate to ground floor locations while the applicant's premises were located at basement level. In its assessment, the tribunal observed that although class 4, 5 and 6 uses are expressly prohibited at basement level in residential areas, there is nothing to suggest that lightweight industrial operations are likewise prohibited. Moreover, the tribunal held that in view of the limited floor space, the envisaged level of activity would not compromise the amenity of the area, even though access to the premises is via a "shared" ramp. On this basis, the tribunal ordered the MEPA to issue the permit, subject to the applicant submitting fresh plans showing a loading/ unloading bay within the premises. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law. The envisaged level of class 11 activity would not compromise the amenity of the area, even though a premises is accessed via a 'shared access' Robert Musumeci MEPAwatch Lightweight industrial use not prohibited in basements Probation is not excluded for long-serving prisoners