The personal factors and social background of the offender as a ground for mitigation of punishment.

Abstract

To date there exists no code which sets out the appropriate attitude which a judge should adopt in determining a particular sentence, nor would it seem that such a code was a realistic possibility. The Maltese Criminal Code 9 like all other codes in the world, fixes a range of punishments in respect of particular offences. It seems fairly clear, however, that before passing sentence a judge must consider various factors, either consciously or subconsciously. Each of the following matters is of relevance -- ( 1) The court's duty to protect the public, which is said to be its primary duty. Thus, there will be some offences where the court‘s duty to protect society overrides all other factors. The same is true where the defendant's record shows that he is of particular danger to other people. (2) The punishment of the offender: Judges firmly believe that the courts are bound to express society's loathing of crime by punishing the offender in the sense of inflicting suffering on him as retribution for his offence. This theory could be said to be the concealed rationale of many sentences which are ostensibly supported on other grounds. (3) Deterrence: This could be either individual deterrence where it is intended to affect the offender's behaviour, or general deterrence where it is intended to discourage other men from following his example. (4) The reform of the offender: In modern times the courts have increasingly come to recognise that crime - 2 - may be the product of poverty and misfortune.