The reformative theory of punishment : law and case-law in Malta

Abstract

This thesis deals primarily with the reformative theory of punishment and the way this is enshrined in Maltese law and case-law at the present day. This does not imply, however, that the other major theories of punishment should be disregarded. Although the retributive theory may be said to be wholly inappropriate and unethical at this day and age, other theories relating to deterrence and the protection of society were given their due weight throughout the course of this work. The most adequate punishment for every criminal offence must incorporate various elements and not just those relating to the reformation and rehabilitation of the offender. In an attempt to further promote the reformative theory of punishment our courts must be given a wider latitude of discretion. Judgments which are not consistent are not necessarily unjust. One of our primary concerns should be that each offender is dealt with individually. Each offender has his or her personal attributes, circumstances and experiences which surely do not merit the same treatment. Therefore, the maxim that the punishment must fit the crime does not help much in promoting the reformative theory. The punishment must indeed fit the crime but it must equally fit the offender. Under the Probation Act one finds various legal mechanisms which may be applied by our courts in order to reform and rehabilitate the person convicted. On the other hand, the suspended sentence was not deemed, generally, to provide an opportunity for one to undergo a process of reform and rehabilitation. Although this keeps the number of prisoners down and consumes very little of the state's limited resources, it does not put a convicted person in a better position to change his or her way of life. Whereas many of the mechanisms enshrined under the Probation Act may be deemed to inflict punishment, a suspended sentence may not be said, generally, to be a sentence awarding punishment.