State v Pickering [2001] FJLawRp 59; [2001] 2 FLR 228 (30 July 2001)

STATE v AUDIE PICKERING

High Court Criminal Appellate Jurisdiction
18, 30 July, 2001 HAM007/01S

Dangerous Drugs Act – Interpretation - Questions posed for Case Stated –whether sentence imposed by Dangerous Drugs Amendment Decree ultra vire the 1997 Constitution because it removes judicial discretion in sentencing young first offenders – disproportionality - 1997 Constitution ss2(1) & (2), 3(b); 8, 25(1), 41(3), 43(3), 195(2)(e), 195(3); 1990 Constitution s8(1); Dangerous Drugs Act s8(b), 41(2) & Third Schedule; Dangerous Drugs Act (Amendment) Decree 4/90 s3; Dangerous Drugs (Amendment) Decree 1/91; Universal Declaration of Human Rights art 5; Juveniles Act ss30, 31; Penal Code s149; International Covenant on Civil and Political Rights art 7; Human Rights Commission Act s37(4)

The Court commented on the way all laws passed before the passing of the Constitution must measure up to the requirements of the Constitution, failing which they will be declared invalid to the extent of the inconsistency. The Court noted that there are some rights which were so fundamental, that even the legislature could not legislate them away, and which are expressly recognised in the 1997 Constitution.

Held – In the context of section 25(1) of the Constitution, it is not enough to show that a sentencing law is unfair. The punishment of a mandatory minimum sentence must be shown to be cruel, inhuman, degrading, or disproportionately severe for the offence.
(2) A sentence of minimum of 3 months imprisonment for possession of less than 10 grams of Indian Hemp prescribed by the Dangerous Drugs Decree No. 4/90 and Decree 1/91 may not be automatically ultra vires this provision but is subject to a test of disproportionality. A mandatory sentence for a first offender, who is clearly suited for rehabilitation is so grossly disproportionate to his offence that it is a clear breach of s25(1) of the Constitution.

[Note: this case is commented on in (2005) 1 PHRLD 58]

Cases referred to in Judgment
Buzani Dodo v The State Constitutional Court of South Africa CCT 1/01
Ex parte Attorney-General of Namibia, In re Corporal Punishment by Organs of State (1992) LRC (Const) 515
Frazer v State Services Commission (1984) 1 NZLR 116
Gerea & Others v DPP (1984) SILR 161
Hinds v The Queen (1977) AC 195
Kable v DPP (NSW) [1996] HCA 24; (1996) 70 ALJR 814
Latimer v The Queen (2001) SCR 3
Namunjepo & OS (1999) SACLR 35
Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52
R v Big M. Drug Mat Ltd. 1985 CANLII 69; (1985) 1 SCR 295
R v Goltz (1991) 3 SCR 485
Re B.C. Motor Vehicle Act (1985) 2 SCR 486
S v Likuwa (1999) SACLR 16
S v Swartz and Another (1999) SACR 380
S v Vries (1996) 12 BCLR 1666, 1996 SACLR Lexis 47
Smith v The Queen (1987) SCR 1045
State v Alifereti Nakautogo HAA 130/97
State v Kishore Kumar HAR 5/93
State v Makwanyane & Anr. (1995) 6 BCLR 665
Warner v Metropolitan Police Commissioner (1969) 2 AC 256
Weems v United States [1910] USSC 127; (1910) 217 US 349
Wynbyne v Adrian Arthur Marshall [1997] NTSC 120; (1997) 117 NTR 11

Viren Kapadia for the Applicant
Vilimoni Vosarogo for the Respondent
Usaia Ratuvili for Proceedings Commissioner

30 July, 2001 JUDGMENT

Shameem, J
This is a reference by the Suva Magistrates' Court to the High Court by way of case stated, seeking answers to the following questions:

1) Is section 8(b) of the Dangerous Drugs Act, as amended by the Dangerous Drugs Act (Amendment) Decree No. 4 of 1990 and the Dangerous Drugs (Amendment) Decree No. 1 of 1991, in breach of section 25(1) of the Constitution?

2) Is the mandatory term of imprisonment liable to be imposed on the offender in this case, disproportionately severe punishment and in breach of section 25(1) of the Constitution?

Background
On the 22nd of January 1999, Audie Pickering, a twenty year old man with no previous convictions, was charged with the following offence:

Statement of Offence

FOUND IN POSSESSION OF DANGEROUS DRUGS: Contrary to section 8(b) and 41(2) of the Dangerous Drugs Act Cap. 114, amended by the Dangerous Drugs Act (Amendment) Decree No. 4 of 1990 and Dangerous Drug (Amendment) Decree No. 1 of 1991.

Particulars of Offence

AUDIE PICKERING on the 7th day of October 1998 at Nasinu in the Central Division, was found to be in possession of 4.7 grams of dangerous drug namely, Indian hemp.

The Defendant Audie Pickering requested the Director of Public Prosecutions to withdraw the charge, but the request was refused. His counsel then on 8th November 2000 made an application to the Learned Resident Magistrate to refer the constitutional questions to the High Court. She agreed, and the matter came before the High Court on 20th April 2001. Counsel for the Defendant asked to file affidavit evidence of the Defendant's personal circumstances, and of the alleged offence. The Human Rights Commission was invited to appear to make submissions and leave was granted to the Proceedings Commissioner to appear under section 37(4) of the Human Rights Commission Act. The State was represented by counsel for the Director of Public Prosecutions. All counsel wished to file written submissions. They have done so, and the submissions and their oral arguments were well-researched and helpful.

The affidavit of Audie Pickering sworn on 3rd July 2001, states that the Defendant was born on 6th February 1978. At the time of the alleged offence he was 20 years old. He failed his 6th Form examinations in 1996 and left school. He then worked for the Army, Technic Bitumen Pacific Ltd., Carpenters (Fiji) Ltd., and Feeders (Fiji) Ltd. At the time of the alleged offence he was unemployed, but in 1999 he worked as a volunteer at the Fiji Recompression Chamber Society. He is currently self-employed in a grass-cutting business, earning about $100.00 a week. He lives with his parents and six siblings. He attends church regularly, and according to his Church Minister, is a member of the Church Youth Fellowship. It appears that he and his family, are valued members of the congregation.

The Submissions
Counsel for the Defendant submitted that although all mandatory sentences were not necessarily severely disproportionate to the offence, the now amended section 8(b) of the Drugs Act is. He says that the section is in breach of section 25(1) of the Constitution because it removes judicial discretion in sentencing young first offenders, it is against all sentencing policy and in any event it was effected by Decree and cannot have the same status as legislation which has survived parliamentary and democratic debate. He suggests that the Amendment Decrees 4 of 1990 and 1 of 1991 should be declared invalid or that the court declare in this case that the mandatory three month minimum term would be in breach of the Constitution and therefore cannot be imposed.

Counsel for the State did not oppose the submission that the Decrees imposing mandatory sentence were potentially unconstitutional but suggested that the Court adopt the approach of the Canadian Supreme Court in Smith v The Queen (1987) SCR 1045, Re B.C. Motor Vehicle Act (1985) 2 SCR 486 and Latimer v The Queen (2001) SCR 3, that is, that the question of whether the sentence of three months imprisonment is grossly disproportionate should be decided on a case-by-case basis. In a further submission, filed a few days before this judgment was due to be delivered, another State Counsel, Mr P. Ridgeway from the DPP's Office, submitted that where the legislature in clear and unambiguous language, provides for a law, it should be upheld even when it is inconsistent with the Constitution. He referred to Australian High Court decisions to support this astonishing submission.

Counsel for the Proceedings Commissioner agreed that mandatory sentences per se were not unconstitutional, but said that the Dangerous Drugs Act had been amended not by the legislative will, but by an executive Decree. He said that all laws passed prior to the promulgation of the 1997 Constitution had to be scrutinised for compliance with the Constitution under section 195 of the Constitution. He submitted that if the Decrees did not satisfy the test under section 25(1), then they could be declared unconstitutional and invalid.

He submitted, in the alternative, that even if the Decrees were valid, individual cases should be scrutinised to decide whether the mandatory term was disproportionately severe, and agreed that the Canadian Supreme Court's approach would be the most suitable, if this submission was accepted.

As a result of the further submissions filed by Mr P. Ridgeway of the DPP's Office, I called all counsel to Chambers to see if they wished to respond. The State's further submissions urged the court to uphold the Decrees even if they were in breach of the Constitution. In the course of this second hearing, it was apparent that Mr Ridgeway's submissions raised no new issues that had not already been raised in open court by State Counsel already on the record. What was new was the suggestion that the Decrees should be upheld even if they were in breach of section 25 of the Constitution.

However during the Chambers hearing Mr Ridgeway conceded that there were some punishments which were so disproportionate and inhumane, that they could not survive a constitutional challenge under section 25(1). It is, he said, a matter of degree, and a matter for the court to consider what is "severe and disproportionate" given the social context of the punishment.

In the light of this concession, it does not appear to be argued by the State that all punishments no matter how disproportionate, must be upheld by the courts on the ground of the "legislative will."

I then proceeded to judgment.

The Law
The Dangerous Drugs Act Cap 114 originally provided as follows:

"Every person –

1. growing opium poppy, Indian hemp or coca leaf, whether for private use or otherwise; or
   
2. found in possession of or selling, or who has given or sold to any person any substance to which this Part applies,
   

shall be guilty of an offence against this Act."

Section 41(2) of the Act provided:

"Every person guilty of an offence against this Act shall in respect of each offence for which no penalty is otherwise prescribed be liable upon conviction to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding eight years or to both such fine and imprisonment, and shall in every case, on conviction for the offence, forfeit to the Crown, all articles in respect of which the offence was committed...."

In 1990 the Dangerous Drugs Act (Amendment) Decree 1990 was passed by the then President "acting in accordance with the advice of the Prime Minister and the Cabinet." Section 3 of the Decree provides:

"Section 8 of the principal Act is repealed and the following substituted -

8. Every person

(a) growing opium poppy, Indian hemp or coca leaf, whether for private use or otherwise; or

(b) found in possession of or sells or otherwise traffics or engages in the trafficking of any substance to which this part applies, shall be guilty of an offence and upon conviction shall be sentenced to imprisonment in accordance with the Third Schedule of this Act -

Provided that a sentence imposed under this section shall be custodial."

The Third Schedule of the Act provides inter alia, that a conviction under section 8(b) of the Act, if it relates to possession of Indian hemp not exceeding 10 grams, has a penalty of a maximum term of 24 months imprisonment and a minimum term of 3 months imprisonment. The Third Schedule provides for minimum mandatory sentences for a number of drug related offences, including a minimum of 5 years imprisonment for selling or trafficking Indian hemp in quantities exceeding 100 grams.

After the passing of this Decree, it was held by the High Court in State v Kishore Kumar HC Revision No. 5 of 1993 that a minimum mandatory sentence need only be imposed if the court proceeded to conviction after the plea or finding of guilt. In order therefore, to avoid imposing the mandatory minimum, the courts were preferring to discharge without conviction. The then President then passed another Decree, on the 1st of February 1991. It was the Dangerous Drugs Act (Amendment) (No. 1) Decree 1991. Section 2 of the Decree provides:

"Section 8(b) of the principal Act is amended

(a) by inserting the word "immediate" after the word "to" in the sixth line;

(b) by repealing the proviso to section 8(b) and replacing it by the following proviso -

"Provided that the provision of section 29 of the Penal Code and any other law shall not apply to any sentence to be imposed under this Act."

This last Decree removed all doubt as to the mandatory nature of the imprisonment for an offence under section 8(b) of the Drugs Act.

As Pain J said State v Alifereti Nakautogo Crim. App. No. HAA 130 of 1997 (at page 3):

"... the clear intention of section 8 (as substituted and amended by Decree) has been to provide for a mandatory immediate prison sentence as the penalty for the offence of possession of Indian hemp (and the other offences specified in the section), the term of such sentence to be within the minimum and maximum range stated in the Third Schedule."

The Decrees were of course, followed by the 1990 Constitution, and then by the 1997 Constitution. In the sessions of Parliament following the 1992 elections, no attempt was made by the legislature to repeal or amend the Dangerous Drugs Act in respect of the mandatory sentencing. Paragraph 8(1) of the 1990 Constitution (the Preamble) provided:

"All existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution and this Decree."

Section 8 of the Constitution provided that:

"No person shall be subjected to torture or to inhuman or degrading punishment or other treatment."

On 27th July 1998, the Constitution Amendment Act 1997 came into effect. Section 2 provides:

"(1) This Constitution is the supreme law of the State.

(2) Any law inconsistent with this Constitution is invalid to the extent of the inconsistency."

Section 3 provides:

"In the interpretation of a provision of this Constitution:

(a) a construction that would promote the purpose or objective underlying the provision taking into account the spirit of this Constitution as a whole, is to be preferred to a construction that would not promote that purpose or object; and

(b) regard must be had to the context in which the Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments, especially:

(i) developments in the understanding of the content of particular human rights; and

(ii) developments in the promotion of particular human rights."

Section 25(1) of the Constitution provides:

"Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment." (My emphasis)

Section 43(2) of the Constitution states, in relation to the Bill of Rights:

"In interpreting the provisions of this Chapter, the courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights set out in this Chapter."

Finally, section 195(2)(e) of the Constitution Amendment Act provides:

"all written laws in force in the State...continue in force as if enacted or made under or pursuant to this Constitution and all other law in the State continues in operation;"

and section 195(3) provides:

"Subject to section 2 written laws referred to in paragraph (2)(e) or (f) are to be construed on, and from the commencement of this Constitution, with such modifications and qualifications as are necessary to bring them into conformity with this Constitution."

Mandatory Sentencing Generally
Section 8(b) which provides for a mandatory minimum term of imprisonment irrespective of the circumstances of offence or offender, is not a unique piece of law. Almost all common law jurisdictions have such provisions in their criminal law. Nor is it unique in Fiji. Murder, for instance carries a mandatory term of life imprisonment. Mandatory terms of imprisonment have been subjected to much criticism by judicial officers and law reformists. The reasons for such criticism are that mandatory minimum terms do not allow the judiciary to apply proper sentencing principles, and do not permit for adjustment according to the personal circumstances of the case. When the Crime (Sentences) Bill (now the Crime (Sentences) Act 1997 (UK)) was before the House of Lords for its Second Reading, Lord Bingham said:

"It is a cardinal principle of just sentencing that the penalty should be fashioned to match the gravity of the offence and to take account of the circumstances in which it was committed. Any blanket or scattergun approach inevitably leads to injustice in individual cases."

Despite judicial disapproval of mandatory minimum terms however, judicial opinion internationally, is that mandatory terms of imprisonment per se, are not unconstitutional, nor do they breach the doctrine of the separation of powers.

In Constitutional Reference by the Morobe Provincial Government (1985) LRC (Const) 642, the Supreme Court of Papua New Guinea considered the question. Kapi D.C.J said in relation to the Constitution of Papua New Guinea which prohibits "inhuman and cruel punishment" but is silent on proportionality:

"Under section 37(2) only the Parliament can define a criminal offence and prescribe the penalty for that offence. As to what is the proper punishment for these offences is a power given only to Parliament. The power of prescribing punishment for an offence is only limited to the extent that punishments which are prescribed are not of a kind that affect the inherent dignity of the human person."

In Kable v DPP (NSW) [1996] HCA 24; (1996) 70 ALJR 814, the High Court of Australia in considering an Act which provided for preventative detention, said, at page 824 (per Dawson J):

"The doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law. It is of its essence that a court, once it has ascertained the true scope and effect of an Act of Parliament, should give unquestioned effect to it accordingly."

In Hinds v The Queen (1977) AC 195, the Privy Council, in considering legislation in Jamaica which provided for, inter alia, mandatory minimum sentences for being in possession of firearms, said (per Lord Diplock) at page 226:

"In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence - as, for example, capital punishment for the crime of murder. Or it may 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."

It was on that basis that the Supreme Court of the Northern Territory found in Wynbyne v Adrian Arthur Marshall [1997] NTSC 120; (1997) 117 NTR 11, that a minimum mandatory term of imprisonment under the Sentencing Act 1995 was not in breach of the doctrine of the separation of powers in that it was not an interference with judicial independence in sentencing. (See also Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52 (per Barwick CJ at p.58)

Similarly the Solomon Islands Court of Appeal in Gerea & Others v DPP (1984) SILR 161 said that a mandatory fixed penalty for murder was not unconstitutional and did not deprive a person of his constitutional right to a fair hearing provided the penalty was general and applied to all citizens. Nor did such fixed penalty interfere with the independence of the judiciary.

There is therefore a wealth of opinion, that the legislature generally has the power to impose minimum penalties without offending judicial independence.

However, this is not to say that mandatory minimum terms can never be the subject of constitutional challenge. In Australia of course, there is no constitutional bill of rights. Fundamental rights in Australia are protected by the common law, statute and international law. The approach of the Australian High Court therefore to laws which offend fundamental human rights, is quite different from the approach of jurisdictions which have a constitutional bill of rights provision. Indeed, with the rapid development of international human rights law, such legislation and punishments have been challenged and will no doubt continue to be challenged on the basis that they are inconsistent with, "the dignity of the human person" (Kapi D.C.J. in Morobe Provincial Government supra, p.657).

In the Morobe Provincial Government decision, the majority decision was that a mandatory sentence for rape, was not inconsistent with the inherent dignity of the human person, and that the court considered that the Papua New Guinea Constitution did not permit an inquiry into the proportionality of sentences. However, it was conceded by the majority that excessiveness of sentence could lead to a finding that a punishment was cruel and unusual. As Bredmeyer J said at page 669:

"When Parliament imposes a mandatory sentence it stresses the public deterrent aspects of the punishment to the exclusion of other matters but I would not say that that per se infringes section 36. It is, of course, unfair to offenders in that it gives dissimilar offenders the same penalty but is not, I think for that reason alone inconsistent with respect for the inherent dignity of the human person. As I see it, the excessiveness of a mandatory penalty can infringe section 36 but not the fact that it is mandatory."

It was Lord Cooke in Frazer v State Services Commission (1984) 1 NZLR 116 at 121, who said that there were some rights which were so fundamental, that even the legislature could not legislate them away. In the context of the Fiji Constitution this is recognised expressly. All laws passed before the passing of the Constitution must measure up to the requirements of the Constitution. If they do not, they will be declared invalid to the extent of the inconsistency. In the context of section 25(1) of the Constitution, in order to successfully mount a challenge to a sentencing law, it is not enough to show that it is unfair. The punishment must be shown to be cruel, inhuman, degrading, or disproportionately severe for the offence. A mandatory minimum sentence is not necessarily in breach of section 25(1) nor of the doctrine of the separation of powers, but it can be, if it is shown to be cruel, inhuman, degrading or disproportionately severe for the offence.

In this regard, Mr Ridgeway's submission that the legislature has the right to legislate away rights guaranteed by the Constitution, cannot be accepted. Australian decisions in this regard are of limited value in Fiji which not only has an entrenched Bill of Rights in its Constitution, but whose Constitution provides that it is the Supreme law, the law by which all laws are measured.

Section 25(1)
Article 5 of the Universal Declaration of Human Rights and Article 7 of The International Covenant on Civil and Political Rights provide that:

"No one shall be subjected to torture or to cruel, inhuman or degrading punishment."

This declaration of the fundamental right not to be subjected to torture or inhumane treatment, is, in most written constitutions, declared to be an absolute unqualified right. It is not derogable even in an emergency. The legislature cannot whittle the right down, or legislate it away in the interests (for example) of public order. This is the case in Fiji's Constitution.

There is good reason for the creation of such an absolute unqualified right to be free from inhumane and degrading treatment, or from torture. The right, declared in 1948 to be a universal human right, emerged from the historical experiences of the gas chambers and concentration camps of Nazi Germany. It emerged from the prisoner-of-war camps and emergency decrees of a world torn by war, suffering, degradation and inhumanity. In the context of that human experience, it is not surprising that the right of freedom from torture and inhumane punishment or treatment, should be an absolute, unqualified, and non-derogable right.

Most jurisdictions with written constitutions have duplicated this provision as part of their Bill of Rights chapter. The Papua New Guinea Constitution added the words "or is inconsistent with respect for the inherent dignity of the human person."

Since 1948, when the Universal Declaration of Human Rights was adopted by the United Nations General Assembly, human rights jurisprudence has developed in leaps and bounds. Prior to 1948, in Weems v United States [1910] USSC 127; (1910) 217 US 349, the United States Supreme Court, in interpreting the Eighth Amendment of the U.S. Constitution held that a prohibition of cruel and unusual punishment included a prohibition of excessive and disproportionate punishment. This principle has been adopted by other countries with written Constitutions.

In State v Makwanyane & Anr. (1995) 6 BCLR 665 the Constitutional Court of South Africa, declared the death penalty to be inhuman and degrading treatment, giving the section a generous and purposive interpretation, and giving effect to the underlying values of the Constitution. Also in South Africa, a mandatory sentencing regime for rape, has been declared constitutional, but only because the legislature provides that the court can give a lesser punishment if there are "substantial and compelling reasons."

In S v Swartz and Another (1999) SACR 380, Davis J said, on a constitutional challenge of this provision:

"A sentence imposed by a court pursuant to this provision can be unconstitutional where it is so disproportionate to constitute cruel and degrading punishment. In R v Goltz (1991) (3) SCR 485, the Canadian Supreme Court found that there was a need to test the proportionality of the sentence by reference to a hypothetical example which had to be reasonable, that is, was there a reasonable hypothetical case for which the minimum sentence would be grossly disproportionate. Clearly this approach places minimum sentences in constitutional jeopardy, but this depends on the outcome of the hypothetical exercise and the case for unconstitutionality becomes all the weaker when there is room for deviation from the sentence, as is provided for in s.51(3)(a) of the Act."

In Buzani Dodo v The State Constitutional Court of South Africa CCT 1/01, Akermann J said:

"The concept of proportionality goes to the heart of the inquiry as to whether punishment is cruel, inhuman or degrading .... This was recognised in S v Makwanyana."

In Ex parte Attorney-General of Namibia, In re Corporal Punishment by Organs of State (1992) LRC (Const) 515, the Supreme Court of Namibia declared that corporal punishment was no longer justifiable in a democratic society. At page 518, Mahomed JA said:

"The provisions of the Constitution must therefore be read not in isolation but within the context of a fundamental humanistic constitutional philosophy introduced in the preamble to and woven into the manifold structures of the Constitution."

In S v Vries (1996) 12 BCLR 1666, 1996 SACLR Lexis 47, the Namibian High Court considered the right not to be subject to "cruel, inhuman or degrading treatment or punishment" under article 8 of the Namibian Constitution, in the context of a mandatory minimum sentence of three years imprisonment on a second conviction under the Stock Theft Act. The Court found, on the basis of the United States, Canadian and South African authorities, that "cruel, inhuman or degrading punishment" included "grossly disproportionate punishment" and that the test for the judiciary to apply to particular legislation involved an inquiry as to whether the sentence "would be startlingly or disturbingly inappropriate with respect to hypothetical cases which could be foreseen as likely to arise commonly." This principle continues to apply in Namibia (see S v Likuwa (1999) SACLR 16 and Namunjepo & OS (1999) SACLR 35.

Another clear statement that the right of protection from cruel, inhuman and degrading punishment includes protection against disproportionality, comes from the Canadian Supreme Court, in a series of cases commencing with Re B.C. Motor Vehicle Act (1985) 2 SCR 486, and Smith v The Queen (1987) SCR 1045.

In the latter case Smith pleaded guilty to importing seven and a half ounces of cocaine into Canada, contrary to section 5(1) of the Narcotic Control Act. He challenged the constitutional validity of the seven year minimum sentence imposed by section 5(2) of that Act, saying that the punishment was cruel and unusual.

The Supreme Court held that while the legislative purpose for passing the law was constitutionally valid, the test for assessing cruel and unusual punishment included a test for "gross disproportionality." It held that in assessing whether a sentence was "grossly disproportionate" the court must consider the gravity of the offence, the personal characteristics of the offender, and the particular circumstances of the case to decide what range of sentences would be appropriate to punish, rehabilitate, deter or protect society from the particular offender. Although arbitrariness of the sentence is a factor for consideration, it is a minimal factor. The Supreme Court held the seven year minimum term of imprisonment was grossly disproportionate because section 5(1) covered substances of varying degrees of danger, disregarded the quantity imported and treated as irrelevant the reason for importing and a previous good record. The minimum sentence was therefore declared to be of no force or effect.

In R v Goltz [1991] 3 SCR 485, Goltz was found guilty of driving while prohibited under the BC Motor Vehicle Act. The offence carried a minimum penalty of seven days imprisonment and a $300 fine for a first conviction. The Supreme Court of Canada held that the minimum sentence did not violate section 12 of the Canadian Charter of Rights. It held that the general test for determining whether a punishment is cruel and unusual, is one of gross disproportionality, which must consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case. It further held that the court can consider whether the punishment is necessary to achieve a valid penal purpose, whether it is founded on recognised sentencing principles, whether there are valid alternatives to the punishment imposed and whether a comparison with other crimes reveals great disproportion. If the particular facts of the case do not warrant a finding of gross disproportionality, then the court may examine whether the statutory provision would be disproportionate in reasonably hypothetical circumstances.

In Morrisey v R (1999) SCR, Morrwas convictnvicted of the offence of criminal negligence, which carried a mandatory minimum term of four years imprisonment. The Supreme Court held that section 12 of the Canadian Charter of R and Freedoms provided a br a broad protection against punishment which was so excessive as to outrage society's sense of decency.

In the earlier case of Re B.C. Motor Vehicle Act (supra) the Supreme Court held that law which provided for minimum terms of imprisonment for traffic offences which required no proof of mens rea, offended section 7 of the Canadian Charter. The Court held that while mandatory sentences did not per se violate the Charter, an absolute liability offence leading to mandatory imprisonment did. Wilson J said:

"It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence: it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so, can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system. This is not to say that there is an inherently appropriate relationship between a particular offence and its punishment but rather that there is a scale of offences and punishments into which the particular offence and punishment must fit .... I believe that a mandatory term of imprisonment for an offence committed unknowingly and unwittingly and after the exercise of due diligence is grossly excessive and inhumane."

Although the court decided the case on the question of whether such punishment offended the principles of fundamental justice under section 7 of the Canadian Charter, it was apparent that the proportionality of the sentence to the crime, was considered to be a fundamental principle of justice. It was later to be applied directly to the question of "cruel and unusual punishment" in Smith (supra) and Goltz (supra). In the U.S. Supreme Court in the case of Furman v Georgia [1972] USSC 170; (1972) 408 US 238 a similar approach was adopted. Brennan J in that case referred to four principles in considering whether punishment accorded human dignity. These were, (at pp 367-372) that a punishment must not be so severe as to be degrading to the dignity of human beings, the State must not arbitrarily inflict a severe punishment, a severe punishment must not be unacceptable to contemporary society, and a severe punishment must not be excessive.

In his strong dissenting judgment in Morobe Provincial Government (supra), at page 694, McDermott J said, after discussing the US authorities and considerations for sentencing:

"There is a great deal of subjectivity involved with sentencing an offender for a minimum penalty crime. Unlike a judge of the US Supreme Court, I also sit as a Judge of the National Court as circuit Judge in the first instance. What is cruel or inhuman becomes not a matter of cold speculation or impersonal inquiry from a distance, it is something very real .... when the punishment to be applied is out of all proportion to the offence because one or more of the factors to which I have alluded must be disregarded, the resulting cruelty or inhumanity does not need definition. It becomes the fact."

It therefore was no coincidence that the 1997 Constitution Amendment Act, referred specifically to the right of protection against disproportionately severe punishment. At the time the Constitution was drafted, and discussed at the Parliamentary Committee stages, the development of the concept of proportionality as an aspect of cruel, degrading or unusual punishment, by international human rights decisions, was available for perusal. The Reeves Report (the Fiji Constitutional Review Commission Report) at page 147 confirms that. It states:

"The Commission believes that first the Constitution should expressly forbid "disproportionately severe" punishment or other treatment. This would provide a clear standard with which to judge the appropriateness of particular penalties, taking into account the nature of the offence for which they are imposed. It would also provide a constitutional basis for an appeal against a particular sentence claimed to be disproportionately severe, and help to promote consistency of sentencing policy between courts in different places."

Our section 25(1) therefore in using the word "disproportionate" directly reflects the approach of the US Supreme Court, the Canadian Supreme Court, the Namibian and South African Courts and McDermott J's dissent in the Morobe Provincial Government case. It is an affirmation that the courts, in interpreting section 25(1) of the Constitution, may look not only at the type of punishment imposed by the legislature but also at the degree of punishment imposed.

Section 25(1) acknowledges and accepts, the changes to human rights law in the area of punishments, in the last 20 years.

Section 25(1) and the Dangerous Drugs Decrees
How do we assess disproportionality in relation to a punishment imposed by the legislature?

It is not enough that the judge considers the sentence to be unfairly disproportionate. The sentence must be grossly or severely disproportionate. In interpreting section 25(1) in relation to a particular sentence, the court should prefer a construction which promotes the purpose or object underlying the provision (a purposive approach) and must "promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights" (section 43(2) of the Constitution).

The clearest statements of how one is to approach the question of "disproportionality" come from the United States, Canadian and Namibian authorities.

In Canada the first consideration is the purpose and effect of the law challenged. Was the purpose a constitutionally valid one? Lamer J in Smith v The Queen (supra) said:

"In measuring the content of the legislation, the courts are to look to the purpose and effect of the legislation. Dickson J in R v Big M. Drug Mat Ltd. 1985 CANLII 69; (1985) 1 SCR 295 speaking for the majority of this Court said at p.331: "In my view both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation."

The judiciary has a traditional deference to Parliament. It is for Parliament to pass laws, and for the judiciary to give effect to them. Most legislation will have a valid constitutional purpose because it would have been passed after much research, discussion and debate. A recommendation for legislative change normally comes from a group or department after a need for the change has been acknowledged. A Minister, having discussed the matter with his/her own Ministry will then present a Cabinet paper. The matter will be discussed in Cabinet before it is prepared in Bill form. Once in Bill form, it is published so that the public and concerned parties can discuss it and make representations to their Member of Parliament. The Bill, if it is not channelled to a Sector Committee for Parliament to hear further representation from the public and from government, will be debated in Parliament, both in the Lower and Upper House. It is only after this process that a Bill might become law. The law when passed by Parliament, and assented to by the President, has the status of a law passed through a democratic process. There is an assumption that Parliament speaks for the people and passes laws with the assent of the people. This is the essence of democracy. It is a powerful reason why the judiciary should defer to the will of Parliament. Legislation passed by Parliament reflects in principle, the will of the people.

However, as counsel for the Human Rights Commission submitted, the mandatory minimum sentence under the Drugs Act was not imposed by the legislature. It was imposed by an executive act. It was passed by decree. There was no public discussion, no Parliamentary debate, and no opposition.

In the context of a decree, not only is it more difficult to ascertain a legislative purpose, but the customary deference to legislation must surely give way to a very close scrutiny of the constitutional effect of what is an executive act, albeit acknowledged and saved by section 195 of the Constitution.

State Counsel suggested that given the very real problem of drug use, growth and trafficking in Fiji, deterrence was the "legislative" purpose of the Decree. Counsel for the Human Rights Commission suggested that because the Decree was the brain child of the Health Ministry, the purpose of the Decrees was to protect people from the harmful effects of drug-taking.

It is not clear what the purpose of the Decrees was. However, it would be safe to assume that the Decrees were a response to the increased incidence of marijuana use in Fiji. In terms of the sentences imposed, trafficking and growing are seen as more serious than possession which carries a three month minimum term.

Mr Ridgeway suggested that the mandatory penalty for possession of less than ten grams of Indian hemp must be considered in the social context of Fiji including the damage done to society by drugs and the heavy costs involved in dealing with the consequences of drug use and abuse.

Insofar as sentencing policy generally reflects one or more of the four main purposes of punishment, that is, deterrence, prevention, rehabilitation and retribution, any of these aims, if reflected by the Drugs Act (Amendment) Decrees would be valid from the point of view of the justice system. Furthermore the reasons why mandatory minimum terms of imprisonment are adopted, are well-known to criminal justice personnel. They are, that punishment should fit the crime, that serious offenders should be incapacitated to protect the community, that it eliminates inconsistent sentencing and induces defendants to co-operate with authorities (see South African Law Commissions Issue Paper 11 "Sentencing Mandatory Minimum Standards")

These purposes are not unconstitutional per se. As I have already said in this judgment, mandatory imprisonment is not unconstitutional per se. As such, although the question of constitutional validity is based on an assumption that those who drafted and agreed to the Drugs Act (Amendment) Decree were concerned with legitimate sentencing goals, I am prepared to accept that the purpose of the Decrees was not unconstitutional.

However, no matter how well-intentioned the executive or the legislature might be, if the effect of the law is unconstitutional, in that it offends the provisions of the Bill of Rights, it is invalid to the extent of its inconsistency.

What was the effect of the Decrees? And is the effect severely disproportionate to the offence? It is not in dispute that the majority of offenders prosecuted under section 8(b) of the Drugs Act, are young first offenders. Some are children, normally entitled to the "imprisonment as last resort" protection under the Juveniles Act. Nor is it in dispute that most offenders prosecuted under section 8(b), are in possession of very small amounts of marijuana. It is not difficult therefore to find the "reasonably hypothetical offender." Counsel for the Defendant submitted that the effect of imprisonment on a young, first offender who may otherwise have a bright future, has resulted in public unease and discomfort amongst criminal justice professionals. He submitted that in removing a judicial discretion to give a non-custodial sentence for possession of small amounts of marijuana, the Decrees have an unconstitutional effect.

Although the legislature is entitled to provide for sentences which reflect its view of the seriousness of the offence, it cannot do so (and whether it is by Act or by Decree is irrelevant) if it results in a severely disproportionate sentence, or according to the test of the Canadian Supreme Court in Smith (supra), if it results in a punishment which is so excessive that it outrages standards of decency.

What are the principles of proportionality in considering the constitutional validity of the effect of a law? The Canadian courts have considered firstly, the gravity of the offence, secondly, the circumstances of the offender, thirdly, a consideration of the appropriate range of sentences for such offences, fourthly, a comparison with other crimes within the jurisdiction, and fifthly, whether in the case before the court, the sentence would be grossly disproportionate. (Smith (supra)).

The Namibian Courts consider whether the punishment is startlingly inappropriate, for the reasonably hypothetical offender and whether in the context of Namibian society, the punishment is grossly disproportionate. The U.S. Supreme Court test is whether the punishment is so severe that it is degrading to the dignity of human beings, or that it is arbitrarily inflicted, or that it is unacceptable to contemporary society, or that it is excessively severe.

Applying these principles to the amended section 8(b) of the Dangerous Drugs Act, I consider that the offence of possessing less than 10 grams of Indian hemp, to be the least grave of the offences created by the Act. Clearly, possession of larger amounts of Indian hemp, cocaine and heroin are more serious, as are cultivating, selling and trafficking in drugs. The "real mischief" under the Drugs Act is not the possession of small amounts of Indian hemp, but the acts of those who financially benefit from, and prey upon, the drug dependence of others. This is implicit in the State's further submissions. The thrust of the Drugs Act is against those responsible for the scourge of drugs in Fiji, not the children and young people who are the victims of the growers, dealers and traffickers.

The penological purposes of the mandatory minimum of three months is as I have said, not clear because the amendment was by way of Decree. However, if the purpose of the Decree was to deter, protect the public and/or rehabilitate, than that purpose could adequately be met by penalties which are non-custodial. The Community Work Act for instance would admirably satisfy these penological purposes.

Furthermore, comparing section 8(b) of the Dangerous Drugs Act with other offences in Fiji, there are no minimum mandatory sentences for rape under section 149 of the Penal Code, which is seen as a far more serious offence, or for manslaughter, or for theft, robbery with violence or receiving stolen property. A first offender who commits the offence of larceny in dwelling-house, or simple larceny will usually get a non-custodial sentence in accordance with sentencing principles. A rapist on the other hand will not, the gravity of the offence outweighing good character.

Children up to the age of 17 years, for all other offences will invariably get a non-custodial sentence. Section 30 of the Juveniles Act provides that a custodial sentence should not be imposed on children. Section 30 of the Act provides:

"No child shall be ordered to be imprisoned for any offence."

Section 31 of the Juveniles Act provides that a juvenile may be imprisoned if found guilty of murder, attempted murder or manslaughter or of wounding with intent if the court is of the view that none of the other methods of dealing with him or her is suitable. The Act therefore allows the court to give a juvenile a non-custodial sentence for murder. The Dangerous Drugs Decrees provide for no such discretion under section 8(b).

The difference between murder traditionally seen as the most heinous of crimes, and possession of less than 10 grams of marijuana, is vast. There is no comparison. A person who takes a life with malice aforethought cannot be put in a comparable category as a school student found with a "roll" containing a minute amount of Indian hemp.

It is also of some relevance that while the word "possession" in section 8(b) does not create an absolute liability offence, the law is that all the prosecution has to prove is that the accused consciously had something in his possession, and that that something was Indian hemp. As Lord Pearce said in Warner v Metropolitan Police Commissioner (1969) 2 AC 256, 305:

"I think the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities will not excuse. This would comply with the word 'possess'."

The offence under section 8(b) of the Dangerous Drugs Act creates an offence akin to an absolute liability offence once conscious custody is proved. This fact is also relevant to the question of proportionality of sentence.

This application is of course limited to the effect of section 8(b), and the possession of small amounts of marijuana, and has no effect on the other provisions of the Act. Suffice it to say, the more serious the offence, the better chances a mandatory sentence has of surviving a challenge under section 25(1). This is because the question of gross disproportionality depends greatly on the seriousness of the offence in relation to the seriousness of the penalty.

Therefore, in the case of a reasonably hypothetical offender, that is a young first offender found in possession of a small amount of Indian hemp, who is more likely than not to be the accused in each case, and for whom a non-custodial sentence would be the norm, is a mandatory sentence of 3 months imprisonment so disproportionate to the offending that it offends ordinary standards of decency?

In this regard, a consideration of what is severely disproportionate in Fiji is relevant. Although some caution must be applied by the judiciary in embarking on what the Namibian Supreme Court called a "value judgment" (Mahomed JA in Re Corporal Punishment (supra)), the 1997 Constitution requires the courts to make just such an assessment. Section 3(b) provides that in the interpretation of a provision of the Constitution, "regard must be had to the context in which this Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments, especially:

(i) developments in the understanding of the content of particular human rights; and

(ii) developments in the promotion of particular human rights."

In the context of Fiji society, is the sentence disproportionately severe? It cannot be disputed that all cultures in Fiji emphasise the nurturing of the young, the respecting of the elderly, and the protecting of the weak. It is this respect for humanity that forms the basis of our Constitution. The Bill of Rights protects the young, the weak, the disempowered and the disadvantaged from unjust and arbitrary behaviour. It is this compassion and belief in the nurturing and protecting of our youth, that is the backbone of the Juveniles Act which provides that juveniles must not be imprisoned except for the most grievous of crimes and only if there is no other option.

In the context of this society, our Fiji society, the punishment of mainly young first offenders many of them children, for a mandatory term of 3 months imprisonment irrespective of the circumstances of their offending and in the absence of a significant mens rea, or evidence of intention, is clearly grossly and disproportionately severe. It offends the compassionate humanitarian spirit of the Bill of Rights.

For the purposes of section 8(b) I consider that the possession of small amounts of Indian hemp, an offence akin to an absolute liability offence, by young people many of whom are first offenders, and whose personal circumstances are usually widely different, is an offence which cannot constitutionally lead to a mandatory term of imprisonment. There is no doubt that some offenders may deserve a term of imprisonment, and no doubt will be given one in the ordinary exercise of judicial discretion. However, the act of imprisoning all offenders regardless of good character, extreme youth, differing amounts of the drug and different circumstances explaining the possession, is a sentence which is grossly disproportionate to the offence. It is so disproportionate that it offends public standards of decency in Fiji, and is "startlingly inappropriate."

The amended form of section 8(b) insofar as it applies to the possession of Indian hemp below 10 grams, is therefore in violation of section 25(1) of the Constitution.

Having made this finding, what results from it? In Namibia, in S v Vries (supra) the High Court said that where a punishment is found to be startlingly inappropriate or "shocking", in a reasonably hypothetical case, there are four options open to the court (per Frank J. Gibson J concurring).

(i) To declare the provision to be of no force and effect for all purposes;

(ii) To declare the provision to be of no force or effect only in a particular class of cases;

(iii) To declare the provision to be of no force or effect in respect of the particular case before the court;

(iv) To allow the legislature to cure the defect.

In that case, the court found nothing objectionable with a term of imprisonment, what was objectionable was the length of it. There was therefore a "reading down" to allow the court to impose a lesser term of imprisonment.

In this case, it is the mandatory imprisonment, that is objectionable, or "startlingly inappropriate" for reasonably hypothetical offenders in Fiji's context.

It is therefore not possible, given the clear words of the Decrees, to give the provision a restrictive interpretation as provided by section 43(3) of the Constitution. Nor is it practical at this time in Fiji's history to await amendment through the legislative process. In the circumstances, I see no option other than to declare the amendment by Decrees No. 4 of 1990 and No. 1 of 1991 to section 8(b) of the Dangerous Drugs Act insofar as it applies to a minimum sentence for the possession of Indian hemp under 10 grams, to be unconstitutional and invalid. I do so in accordance with the powers of this Court under section 195(3) of the Constitution and section 41(3) of the Constitution. The maximum term of 24 months imposed by the Decrees for the offence remains.

Audie Pickering
Even if a particular punishment mandatory or otherwise were not declared unconstitutional for the reasonable hypothetical offender, it can still be challenged by the offender on the basis that the sentence would be disproportionately severe in the individual circumstances of his/her case. The onus is on the offender to show a breach of section 25(1) of the Constitution.

The Defendant has not pleaded guilty in the Magistrates' Court, and is of course presumed innocent. He is a first offender, he was 20 years old at the time of the offence, he has a history of unemployment and lack of educational achievement and has not succeeded in previous career choices. He has a supportive, and it appears, caring family, and a concerned church community willing to help him to rehabilitate. He has recently started his own grass-cutting business and is doing well in that endeavour.

He was found by police to be in possession of 4.7 grams of marijuana. The marijuana was found in a plastic bag in his pocket. There is no suggestion of trafficking, dealing or sale. He has no history of previous marijuana use.

An appropriate sentence if he is found guilty or pleads guilty would probably be a non-custodial sentence with a rehabilitative recommendation such as community work under the supervision of his pastor. Such a sentence would satisfy the penological principles under the Dangerous Drugs Act, and ensure that the offender does not get off "scot-free."

It is unfortunate that there are no rehabilitation programmes recognised by the courts for drug offenders which might help them to desist from future use and protect society from the continued scourge of drugs. However, the answer is not, and cannot be, to send offenders such as the Defendant to prison where they may well be exposed to additional criminal behavior. Nor is the answer a severely deterrent sentence which makes the offender an "example" for other potential offenders. As Ackerman J said in Buzani Dodo (supra) at p.31:

"Human beings are not commodities to which a price can be attached; they are creatures with inherent and infinite worth; they ought to be treated as ends in themselves, never merely as means to an end. Where the length of a sentence, which has been imposed because of its general deterrent effect on others, bears no relation to the gravity of the offence .... the offender is being used essentially as a means to another end and the offender's dignity assailed."

A mandatory term of three months imprisonment for this Defendant who is a first offender, and clearly suited for rehabilitation is so grossly disproportionate to his offence that it is a clear breach of section 25(1) of the Constitution.

Even if this application had failed on general constitutional invalidity, it would have passed on the severe disproportionality test for this particular offender.

Conclusion
The answers to the questions posed to this court are therefore:

Q: Is section 8(b) of the Dangerous Drugs Act, as amended by the Dangerous Drugs Act (Amendment) Decree No. 4 of 1990 and Dangerous Drugs (Amendment) Decree No. 1 of 1991, in breach of section 25(1) of the Constitution?

A: Yes, in respect of the minimum mandatory term of 3 months imprisonment for possession of less than 10 grams in Decree No. 4 of 1990 and Decree No. 1 of 1991.

Q: Is the mandatory term of imprisonment liable to be imposed on the offender in this case, disproportionately severe punishment and in breach of section 25(1) of the Constitution?

A: Yes.

Case Stated in the affirmative.

Marie Chan