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Judges hit sentence

By JADA LOUTOO Saturday, February 1 2014

GROSSLY disproportionate and inordinately excessive, were the findings of five appellate judges who ruled that the mandatory minimum sentence of 25 years for convicted drug traffickers, took away the discretionary power of a sentencing court.

Yesterday’s ruling came almost one and a half years after Chief Justice Ivor Archie and Justices of Appeal Paula Mae Weekes, Peter Jamadar, Alice Yorke-Soo Hon and Nolan Bereaux, in a rare sitting, presided over the appeals of two convicted drug traffickers who in 2010, were convicted of possession of drugs for the purpose of trafficking and were both sentenced in accordance with terms of imprisonment as stated in the legislation which was amended in 2000.

The five appellate judges were asked to determine whether the mandatory minimum sentence was cruel, unusual and arbitrary punishment in an appeal of two drug traffickers seeking to have the Appeal Court interpret whether the minimum sentence as outlined in Section 5 (5) of the Dangerous Drugs Act, which states a person convicted of drug trafficking is liable to imprisonment for 25 years to life and a fine of $100,000, was indeed mandatory or discretionary. In a ruling yesterday, the judges allowed the appeals of Barry Francis and Roger Hinds both of whom, in 2010, were convicted and sentenced in accordance with terms of imprisonment as stated in the legislation which was amended in 2000.

The two men were represented by Jagdeo Singh, Larry Lalla and Amerelle Francis.

They argued that the discretionary powers of the sentencing court were removed by the legislation giving rise to an infringement of the separation of powers between the legislature and judiciary.

Singh also argued that on a proper construction of the legislation as it relates to sentence on conviction, it was clear the intention of Parliament was not to establish a mandatory sentence but merely set out what was the higher scale of the threshold.

In their ruling yesterday, the five judges held that by removing judicial discretion, the section imposed or authorised the imposition of a mandatory minimum penalty which was in breach of the Constitution.

According to the judges, the section imposed a penalty which was “arbitrary, capricious and oppressive.”

While the five judges did not strike down the offending section, since they pointed out what was objectionable was not the imposition of a harsh sentence but its mandatory nature, they treated with the latter aspect of the legislation which will now permit judges to take into account the circumstances of the case before them while giving recognition to the gravity with which society views drug offences.

As it related to appropriate sentences for Francis and Hinds, the five appellate judges invited the lawyers for the two men to make further submissions on the issue before they give their final decision.

The court’s final decision will be given on February 14.

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