ALHR - Audie Pickering Judgement (Fiji) Part Four

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

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) 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, Morrisey was convicted 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 Rights and Freedoms provided 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) 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.

Part Five: Section 25 (1) and the Dangerous Drug Decrees
Part Six: Audie Pickering, Conclusion

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