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) 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) 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) 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.

Part Four: Section 25 (1), (freedom from... disproportionately severe treatment or punishment)
Part Five: Section 25 (1) and the Dangerous Drug Decrees
Part Six: Audie Pickering, Conclusion

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This page last updated 4th May 2004