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
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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