Judge upholds three-year minimum for ganja trafficking but says law permits lighter sentences

Justice Jo-Ann Barlow

While upholding the constitutionality of the mandatory minimum three-year sentence for ganja trafficking, Justice Jo-Ann Barlow has ruled that magistrates do have the discretion to impose lighter sentences where special circumstances may warrant.

The judge made the ruling upon an application by Vinnette James on her own behalf and that of her nephew Dellon St. Hill, who was sentenced last July to three years’ imprisonment after being found guilty by Magistrate Peter Hugh of trafficking 281 grams of cannabis.

The application, presented by attorney Eusi Anderson, sought to challenge the constitutionality of the sentence, arguing, among other things, that the mandatory minimum three-year sentence for narcotic trafficking was null, void and of no legal effect insofar as it sought to abrogate the doctrine of separation of powers.

The argument had been specifically that the sentence, which was crafted by the legislature, encroached upon the exclusive jurisdiction of the judiciary’s function to determine sentences.

Justice Barlow, who heard the application, however, declared in her ruling that the principle of separation of powers is not an overriding supra-constitutional principle but a description of how the powers under a real constitution are divided.

Refuting the applicant’s claim, attorney Oneka Archer-Caulder, who appeared for the Attorney General, advanced that the mandatory minimum provisions did not infringe upon judicial discretion, but rather defined the parameters in which the judiciary is expected to exercise its discretion in order to ensure that any penalty imposed is not arbitrary and/or excessive.

Giving credence to the state’s case, the court, referencing case law, said that in addressing the question of separation of powers in Caribbean constitutions, power is conferred upon the Parliament to make laws for the peace, order and good government of their respective states.

In so doing, the judge noted that not only are definitions given as to what conduct shall constitute a criminal offence, but that it also prescribes the punishment to be inflicted on persons found guilty of that conduct by an independent and impartial court established by law.

The judge went on to clarify that in the exercise of its legislative power, Parliament may, if it thinks fit, specifically prescribe a fixed punishment to be inflicted upon all offenders found guilty of certain offences.

Alternatively, Justice Barlow noted that Parliament may likewise also prescribe a range of punishments up to a maximum in severity, either with, or, as is more common, without a minimum, leaving it to the court, by which the individual is tried, to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of the case.

The court reasoned, therefore, that Parliament in the exercise of its legislative power may make a law imposing limits upon the discretion of the judges who preside over the courts by whom offences against that law are tried, to inflict on an individual offender a custodial sentence—the length of which reflects the judge’s own assessment of the gravity of the offender’s conduct in the particular circumstance of his case.

Discretion

The court concurred that while the power is vested in the legislature to make laws to govern the prevailing social and economic ills plaguing a country, which the mandatory

minimum sentencing provision sought to do, it yet in its wisdom included in legislation Section 73 of the Narcotic Drugs and Psychotropic Substances Act, which in itself mitigates the harshness of the mandatory minimum provision and allows a magistrate to impose a sentence less than three years, having taken into account any special circumstances of the particular case before them.

The judge referenced the Act to illustrate the circumstances under which sentences lower than that mandatory minimum referred to in the Act may be imposed.

Section 73 (1)(a) states, “the fact that a person convicted of any offence under this Act was a child or young person on the date of the commission of that offence may be deemed to be a special reason.” Meanwhile, subsection (b)  states that “where   a   person   convicted   of   an offence under section 4  for  being in possession  of  cannabis  was  on  the date of the commission of the offence in the possession of an amount of cannabis  not  exceeding  five  grammes, and the court is satisfied that such cannabis was  in  his  possession only for his   personal consumption, the court may deem such circumstances to be a special reason.”

The court noted that while it was unfortunate that for too long the magistrates have thought themselves restricted to the two stated special circumstances within the legislation (young person and for possession of cannabis under 5 grammes), there was nothing in the section which limited the magistrates’ discretion in applying special circumstances to both the offence and the offender and applying a lesser sentence than three years.

Justice Barlow further noted that the only requirement was that the magistrate should state in writing the reason for giving a lesser sentence than that imposed by statute.

The court therefore found that the imposition of a penal provisions of the Narcotic Drugs and Psychotropic Substances Act was constitutional.

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