Dellon St. Hill, Parsram Sancharra and Khalil Mustafa—the three men who earlier this year won their challenge to the mandatory minimum three-year sentence for ganja trafficking—have been granted bail pending the appeal of their convictions.
At the conclusion of their individual trials before the Magistrate’s Court, each was sentenced to three years behind bars—the term of imprisonment previously held by the magistracy to be the mandatory minimum sentence, and below which it could not go.
In a March 28th, 2018 ruling, however, Justice Jo-Ann Barlow found that the lower courts do have a discretion to go below the minimum sentence set by statute, given the particular circumstances of the case before it.
Having regard to Justice Barlow’s ruling, which came after the men’s conviction and sentence, the appellants in their bail applications argued that they have a likelihood of success and the unlikely nature of their sentence being as long as what was originally imposed.
Through their attorney, Eusi Anderson, they are also contending that their appeals are unlikely to be heard with any swiftness because of the case backlog with which the judiciary is plagued.
In court documents seen by this newspaper, the man have all expressed concern at what they have described as “a real and present risk,” of their sentences being served before the hearing and determination of their appeals.
The result, they said, would mean that their appeal would have been rendered irrelevant in the latter circumstance.
Last Friday, Justice Priya Sewnarine-Beharry, before whom the applications were heard, granted bail in the sum of $500,000, $150,000, and $75,000 to St. Hill, Sancharra and Mustafa, respectively.
St. Hill, 24, was convicted and sentenced by Magistrate Peter Hugh in May of last year for trafficking 281 grammes of cannabis. The magistrate also imposed a $421,000 fine, with the imposition of an additional one-year sentence if he fails to pay the fine.
Sancharra, also 24, was convicted and sentenced by Magistrate Hugh last September for possession of 8 grammes of cocaine. He was also fined $30,000.
Meanwhile, 21-year-old Mustafa was tried and convicted by Magistrate Clive Nurse in December of last year for trafficking 16 grammes of marijuana. He was also fined $30,000.
Anderson has advanced that in light of Justice Barlow’s ruling, not only is it unlikely that their sentences would be as long but that there was a “real risk” that “each further day of incarceration is a day beyond the maximum sentence a magistrate with a wider discretion would have imposed.”
He contended that any such additional day would amount to “excessive, cruel, [and] inhuman punishment which exceeds the aims of sentencing.”
Having been granted bail, all three men have committed to attending court when their appeals come up for hearing, citing their previous track record of never missing court dates while out on bail before their convictions.
In her ruling, Justice Barlow had found that the lower courts do have discretion to go below the minimum sentence set by statute, given the particular circumstances of the case before it.
Referencing legislation and case law, the judge highlighted that courts can impose sentences, the length of which reflects the judge’s own assessment of the gravity of the conduct in the particular circumstance of the case before it.
Her ruling was based on a direct challenge by the trio to the penal provisions of the Narcotics Drugs and Psychotropic Substances Control Act under which they were convicted and sentenced.
Among other things, they sought to challenge the constitutionality of the imposition of the mandatory minimum sentences prescribed by the Act.
Their contention had been that the mandatory minimum sentencing provisions contained in the Acts were null, void and of no legal effect insofar as they rendered nugatory the doctrine of separation of powers.
The imposition of the three-year sentence had caused widespread public outcry by many who believe it was too harsh given the small quantities of drugs for which some persons are convicted.
Justice Barlow had noted that some pieces of legislation speak of “special reasons,” while others simply speak of “reasons,” in which discretion could be used. The Narcotics Act, she said, contains similar provisions.
The court identified two examples of special reasons contained in Section 73 (a) and (b) of the Narcotics Act. The first instance refers to the fact that the person was a child or young person at the date of commission of the offence. In the second instance, it speaks to a person convicted for an offence of possession, where the substance is cannabis, the amount does not exceed 5 grammes, and the court is satisfied that it was for the offender’s personal consumption.
The judge had concluded that Section 73, having addressed special reasons preserves that inherent jurisdiction that every judicial officer must possess at the time of sentencing an accused person.
To this end, she had questioned whether the time had come for there to be a comprehensive review of the legislation. Such review, she said, would include mature deliberation on whether the mandatory minimum sentence is still necessary and might also address whether the present sentencing regime, which mainly contemplates custodial sentences, is still necessary.
Challenging the evidence on which his clients were convicted, Anderson in his notice of appeal argues, among other things, that their conviction fell below the required standard of reasonable doubt.
According to Anderson, the trial magistrates erred in their finding that his clients had the required intention which was attributed to them for possession of the narcotics.
He said that even if the court disbelieved the defence put forward, it could not convict his clients for the offences on the strength of the prosecution’s case, which he again stressed was lacking proof of reasonable doubt.
The lawyer argues, too, that the magistrates erred in law in failing to draw the “rational inference of innocence,” in favour of the defendants that they had no knowledge of the presence of the drugs.
According to Anderson, the prosecution called no independent witnesses, “and every other witness was an after the fact witness,” while he added that at the trial there was contradictory evidence which was not resolved in his client’s favour.
Dates have not yet been fixed for hearing of the appeals before the Guyana Court of Appeal.