The Justice Ministry is examining “with an objective mind” a recent judgment that saw a woman jailed for cultivating just 6.5 grams of cannabis plants, which she admitted was for personal use, with even the presiding magistrate noting that the current drug law is not serving its purpose.
The case dates back to July 2014, when police searched the Sliema home of Marieclaire Camilleri and found six small cannabis plants in one pot. The woman, now 39, was charged with cultivating cannabis.
Whilst Camilleri pleaded guilty to the charges, she noted that she smoked about six joints a day, to help her cope with her anxiety and that the plants were only cultivated for her personal use.
Magistrate Natasha Galea Sciberras, presiding over the case, noted in her judgment that, while the court was convinced that the plants were for Camilleri’s personal use, the “draconian” law left her no option but to jail the woman.
In the judgment, a copy of which was ordered to be sent to Justice Minister Owen Bonnici, the magistrate said that the 2014 Drug Dependence Act was intended to ensure that people found guilty of being in possession of a small amount of drugs were fined, not jailed.
The wording of the law, however, is failing to achieve this goal and forces the courts to jail anyone found in possession of more than one plant of cannabis, even if the overall quantity is deemed to be small. The magistrate said the courts are being forced to jail people even if they do not deserve imprisonment.
The courts have the discretion to decide what a small quantity is, within reason, but their hands are tied when it comes to the number of plants since regardless of the amount, cultivating of more than one plant will lead to an effective jail term.
This notion was introduced in the 2014 drug law reform, through Article 7 of the Drug Dependence Act (Treatment not Imprisonment).
Article 7 of the said Act reads: “A person found guilty of cultivating the plant cannabis in a small quantity not exceeding one plant, in circumstances where the Court is satisfied that such cultivation was for personal use, shall not be liable to a mandatory term of imprisonment or to the exclusion of the application of a probation order or of the suspension of a term of imprisonment provided for in the drug laws.”
This is leading to a situation where a person in possession of one plant weighing, for example, 10 grams, is fined by the courts, but a person having two plants with a combined weight of seven grams has to be jailed.
Camilleri is appealing the judgement, her lawyer Joseph Giglio said, adding that “it makes no sense to have a situation were a Court has to send a person to prison when it does not want to do so. It makes no sense that, on account of flawed drafting, people’s lives are trampled upon in this way.”
The Justice Ministry also told this newsroom that “We have already gone through this debate to some extent prior to the enactment of Chapter 537.”
During the debate, on the drug reform, Bonnici had also noted that there was then an “enormous injustice” with regards to the cultivation of the cannabis plant (prior to the 2014 law). He had said if one has a cannabis plant that is producing a small amount, which is clearly for personal use, it should not be obligatory that one has to go to jail, but there should be an option.
When asked by this newsroom, if he felt an element of injustice was still present through Article 7 of the new law, the Ministry failed to reply to this particular question.
Criminal lawyer, Franco Debono noted this “unjust situation” as far back as 2016, when he argued that a person cultivating a two-metre cannabis plant would benefit from the amendments and receive a mere small fine, while another person caught cultivating two two-centimetre plants would be liable to the mandatory minimum six-month jail term.
Debono also noted then that the law could be amended to the effect that the applicable criterion and distinction should be whether cultivation is for exclusive use, or else for trafficking, thus bringing this disposition in line with the rest of the law and avoiding creating anomalous situations arising out of the arbitrary ‘one plant’ rule introduced by amendments.
Labour MP, Rosianne Cutajar also aired her views on the judgement, posting on Facebook: “I also don’t agree that a person should be sent to prison for six months and ruin her conduct because of 6.5g of cannabis.”
“If we really still believe that cannabis can be harmful (even though studies dispute this) than sentencing needs to focus on help and rehabilitation, not prison.”
This controversial sentence comes just as Malta continues to debate cannabis reform. Whilst personal use is deemed to have been significantly decriminalised, although this particular case proves otherwise, and medical use of cannabis having been legalised, the government has pledged an open discussion on the issue of cannabis for recreational use.
