Mandatory sentencing unlawful in Fiji: the Audie Pickering judgement
Nazhat Shameem J, At Suva 30 July 2001

Part One: Particulars, Background, The Submissions

Part Two: The Law

Part Three: Mandatory Sentencing Generally

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

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS ACTION NO: HAM 007 OF 2001S

STATE

-v-

AUDIE PICKERING

Mr V. Kapadia for Applicant
Mr V. Vosarogo for Respondent
Mr U. Ratuvili for Proceedings Commissioner

Hearing: 18th July 2001
Judgment: 30th July 2001

J U D G M E N T

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.

Part Two: The Law
Part Three: Mandatory Sentencing Generally
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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Last updated 2001/08/09