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

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?

1: 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?

1: Yes.

.............................
Nazhat Shameem
JUDGE

At Suva
30th July 2001

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