Francis and Another v State

JurisdictionTrinidad & Tobago
CourtCourt of Appeal (Trinidad and Tobago)
JudgeBereaux, J.A.
Judgment Date02 February 2014
Neutral CitationTT 2014 CA 7
Docket NumberCriminal Appeal Nos. 5 & 6 of 2010
Date02 February 2014
Francis and Hinds
and
the State

Archie, C.J.; Weekes, J.A.; Jamadar, J.A.; Yorke-Soo Hon, J.A.; Bereaux, J.A.

Criminal Appeal Nos. 5 & 6 of 2010

Court of Appeal

Constitutional law - Fundamental rights and freedoms — Right to liberty, security of the process and right not to deprived thereof except by due process of law — No law passed by parliament should authorise or effect the arbitrary detention, imprisonment or exile of any person — No law passed by parliament should authorise or effect the arbitrary detention, imprisonment or exile of any person — No law passed by parliament should impose or authorise the imposition of cruel and unusual treatment or punishment —Appeal against the sentence imposed by the Dangerous Drugs Act — Whether section 5(5) of the Dangerous Drugs Act was ambiguous — Whether sections 5 and 61 in conjunction created a mandatory minimum sentence of imprisonment — Whether the penalty imposed by the mandatory minimum sentence was inconsistent with section 13 of the Constitution as it was not reasonably justifiable — Separation of Powers — Whether the fixing of a mandatory minimum penalty was an exercise of legislative function — Proportionality test — Unconstitutional— Whether section 5(5) inconsistent with sections 4 and 5 of the Constitution — Due Process — Whether the imposition of the mandatory minimum sentence amounted to a complete removal of judicial discretion to consider any mitigating factors and whether the sentence was arbitrary, capricious and oppressive — Protection of Law — Whether the right to the protection of law was violated where the imposition of the sentence is inordinately excessive and bore little relation to the crime committed — Whether the inconsistency was reasonable justifiable — Whether the mandatory minimum sentence disapplied section 68(2) and 68(3) of the Interpretation Act — Whether the removal of judicial discretion resulted in a serious hardship to offenders and thus eroded the fundamental right to liberty — Appeal against sentences allowed — Consideration of Roodal v. The State [2003] U.K.P.C. 78; Haroon Khan v. The State (2003) 64 W.I.R. 319 and Reyes v. R [2002] U.K.P.C. 11 — Section 13 (1) and 13 (2) of the Constitution — sections 5 (1),5(5),5(9),18 and 61 of Dangerous Drugs Act, Chap 11:25 — sections 68(2); 68(3) of the Interpretation Act, Chap 3:01.

APPEARANCES:

J. Singh, L. Lalla, Katlalsingh and Khan for the first appellant.

A. Francis for the second appellant.

P. Elder S.C., R. Persad, R. Morgan and J. Heath for the Criminal Bar Association.

D. Seetahal S.C. and G. Busby for the respondent.

EXECUTIVE SUMMARY OF DECISION
ISSUES

The following issues are decided in this appeal:

  • (a) Is section 5(5) ambiguous or does it, in conjunction with section 61, create a mandatory minimum sentence of imprisonment for 25 years and a fine of one hundred thousand dollars ($100,000.00) with a default term of 15 years to be served consecutively? (This sentence is hereafter referred to as the mandatory minimum penalty)

  • (b) If the mandatory minimum penalty is created by section 5(5) (in conjunction with section 61), does the creation of such a sentence violate the constitutional doctrine of separation of powers?

  • (c) Is the imposition of the mandatory minimum penalty, inconsistent with sections 4 and 5 of the Constitution?

  • (d) If such a mandatory minimum penalty is inconsistent with sections 4 and 5 of the Constitution, is the inconsistency reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual?

SUMMARY OF DECISION
ISSUE (A)

Section 5(5) of the Act is not ambiguous. It imposes for the crime of possession of a dangerous drug for the purposes of trafficking, a mandatory minimum penalty of a fine of one hundred thousand dollars ($100,000.00) and twenty-five years imprisonment with a further term of fifteen years imprisonment in the event of default of payment of the fine, to be served after the twenty-five year term of imprisonment is completed.

ISSUE (B)

The creation by section 5(5) of the Act, of a mandatory minimum penalty, does not violate the separation of powers. The fixing of a mandatory minimum penalty is a valid exercise of the legislative powers of Parliament.

ISSUE (C)

Section 5(5) of the Act in conjunction with section 61, by removing the judicial discretion, imposes or authorises the imposition of a mandatory minimum penalty which is a breach of sections 4(a) and 4(b) of the Constitution. It breaches section 4(a) because it imposes or authorises the imposition of a penalty which is arbitrary, capricious and oppressive. It is arbitrary because, in this case, there is no rational relation of the penalty to the actual offence committed. It is capricious because the judicial discretion to adapt the penalty to the nature of the crime is removed. It is oppressive because, in this case, the mandatory minimum, of itself, is excessive and wholly disproportionate to the crime committed. It is also a direct breach of the prohibition in Section 5(2)(a) and 5(2)(e) of the Constitution.

It breaches the right to the protection of the law in section 4(b) of the Constitution, in this case, by authorising the imposition of cruel and unusual treatment or punishment by permitting the imposition of a mandatory minimum penalty which is grossly disproportionate and inordinately excessive and which bears little or no relation to the crime committed. It is also a direct breach of section 5(2)(b) of the Constitution.

ISSUE (D)

The removal of the judicial discretion, by the conjoint effect of sections 5(5) and 61 of the Act, results in serious hardship to offenders because of the Court's inability to apply a sentence appropriate to the nature of the offence, to the part played by the offender and to circumstances in mitigation. Such considerations are fundamental to the proper exercise of justice in a democracy, whatever the system of law. They are founded in fairness and respect for the dignity of the human person which is one of the bases upon which our nationhood was proclaimed.

The removal of such considerations from the sentencing process erodes the fundamental right to liberty and cannot be justified in any society which has a proper respect for the dignity of the human person and the inalienable rights with which we all, as human beings, are endowed. Thus, a provision which indiscriminately applies a mandatory minimum penalty to all offenders, irrespective of the nature of the offence, the degree of culpability of the offender and the mitigating circumstances affecting him, resulting in the offender serving a total of forty years imprisonment for one point one six kilogrammes (1.16kg) of marijuana, is so grossly unfair and offensive of the fundamental principles of justice and the rule of law, that it cannot be reasonably justifiable in a society which has a proper regard to the rights and freedoms of the individual.

SENTENCE

While this appeal is concerned only with S5(5), we were invited to consider other provisions of the DDA that might impose mandatory minimum sentences. Mindful of that and of the fact that what is objectionable about S5(5) is not the imposition of a harsh sentence but its mandatory nature, we are of the view that the appropriate relief is not to strike down S5(5), but to strike down S61 of the DDA, which disapplies S68 of the Interpretation Act. This will permit the Courts to interpret this and similar sections in a way that takes into account the particular circumstances of the case while giving recognition to the gravity with which society views drug offences as reflected on the high potential penalties.

The consequence of all this is that the appeals against sentence will be allowed and this Court is entitled to substitute an appropriate sentence.

But in substituting an appropriate sentence, we cannot disregard Parliament's clear intention. The minimum sentence of twenty five years must therefore be taken into account in any penalty to be meted out to the appellants. In doing so however we cannot be fettered in our discretion to apply the law appropriately to the facts and circumstances of the cases coming before us. This consideration is rooted in fairness. An accused must be punished for the crime he commits. But not only must his guilt or innocence be fairly considered, his punishment must also be fairly applied to the facts and circumstances of his case.

We therefore invite counsel's submissions on the extent to which the minimum sentence is to be taken into account in each appellant's case, before we make our final decision on sentence.

ORDER

The Appeals against sentence are allowed. The court will invite written submissions on the appropriate sentences to be substituted in these appeals. Parties are to file written submissions on or before the 7 th February, 2014. The Court's final decision will be delivered on Friday 14 th February 2014.

Bereaux, J.A.
1

This is a criminal appeal the outcome of which is determined by answers to important constitutional questions. The central question is whether section 5(5) of the Dangerous Drugs Act Chap 11:25 (the Act), read in conjunction with section 61 of the Act, is “reasonably justifiable in a society that has a proper regard for the rights and freedoms of the individual”. This phrase is part of an explicit provision in section 13(1) of the Constitution which gives efficacy to an Act of Parliament even though it is inconsistent with the human rights provisions in sections 4 and 5 of the Constitution; provided that the Act is passed by the votes of not less than three fifths of all the members of both Houses of Parliament.

2

The legislation criminalising illicit drug use and trafficking was initially enacted in 1961 as the Narcotic Control Ordinance No. 27 of 1961. It was later amended by Act No. 37 of 1985 entitled the Narcotic Drugs and Psychotropic...

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