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CCJ’s say on mandatory sentences


Cecil McCarthy

CCJ’s say on mandatory sentences

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Today I focus on one aspect of a very important Caribbean Court of Justice (CCJ) decision with respect to among other things, mandatory minimum sentence. I refer to the case of the AG for Belize vs Phillip Zuniga et al [2014] CCJ 2 (AJ), an appeal from the Belizean Court of Appeal.
A mandatory sentence is one that compels a judicial officer to impose  a particular penalty. In other words,  it does not permit him to individualise punishment. A mandatory minimum sentence therefore, compels him to impose a fixed minimum penalty on  an individual convicted of a crime.  Again he is unable to individualise punishment and, for example, consider any mitigating factors in the case.
In recent times mandatory minimum sentences have been under challenge  on constitutional grounds. Whether  it be Canada, South Africa, Australia  or here in the Caribbean, courts  have been requested to adjudicate  on these matters.
On another occasion, I will address the issues that have arisen and the manner in which they have  been resolved.
In today’s column, I merely wish to highlight some of the discussion in the most recent CCJ decision on the subject.
That case involves, among other things, a consideration of legislation  that criminalised knowingly disobeying or failing to comply with an injunction issued by the court.
It imposed a minimum penalty  of $50 000 for persons found guilty  of an offence.
The CCJ found that the mandatory minimum sentences were grossly inhumane and unconstitutional and contravened section 7 of the Belize Constitution, which proscribes inhumane and degrading punishment.
Court’s view
The court’s view with respect to mandatory minimum sentences and  with respect to the particular provisions in the case are set out at paragraphs  61 and 62 of the judgement:
“61. It is a vital precept of just penal laws that punishment should fit the crime. The courts, which have their own responsibility to protect human rights and uphold the rule of law, will always examine mandatory or mandatory minimum penalties with a wary eye.  If by objective standards the mandatory penalty is grossly disproportionate in reasonable hypothetical circumstances,  it opens itself to being held inhumane and degrading because it compels  the imposition of a harsh sentence even as it deprives the court of an opportunity to exercise the quintessentially judicial function of tailoring the punishment to fit the crime. As stated by Holmes J.A. in State vs Gibson, a mandatory penalty ‘unduly puts all the emphasis on the punitive and deterrent factors of sentence, and precludes the traditional consideration of subjective factors relating to the convicted person’.  
“This is precisely one of the circumstances that justifies a court  to regard a severe mandatory penalty  as being grossly disproportionate and hence inhumane. A variety of expressions have been utilised to define ‘grossly disproportionate’ in this context. It is said to refer to a sentence that is beyond being merely excessive. 
“In Smith vs R, where the seven-year mandatory minimum sentence was invalidated, Wilson J characterised  such a sentence as one where ‘no one, not the offender and not the public,  could possibly have thought that that particular accused’s offence would attract such a penalty. It was unexpected and unanticipated  in its severity . . . .’”
“62. Ultimately, it is for judges, with their experience in sentencing, to assess whether a severe mandatory sentence is so disproportionate that it should be characterised as inhumane or degrading punishment. In this case, the mandatory minimum fines of $50 000 plus a daily rate of $100 000 are well beyond the ability of the average Belizean to pay and so are grossly disproportionate.
Equally, the imposition of a mandatory minimum fine of $50 000  or a sentence of imprisonment for at least a stretch of five years on anyone convicted of any of the offences in question (save those whose sentences  fall within mitigating criteria fashioned not by the court but by Parliament) is grossly disproportionate. It bears no reasonable relation to the scale of penalties imposed by the Belize Criminal Code for far more serious offences and for that reason it is also arbitrary. In our view, the mandatory minimum sentences here should indeed be characterised  as being grossly disproportionate, inhumane, and therefore unconstitutional for contravening  Section 7 of the constitution.”  
Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]

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