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Editors --- "State v Pickering - Case Summary" [2001] AUIndigLawRpr 51; (2001) 6(4) Australian Indigenous Law Reporter 75


Court and Tribunal Decisions - Fiji

State v Pickering

High Court of Fiji (Shameem J)

30 July 2001

Constitution of Fiji — mandatory imprisonment for drug offences —prohibition on disproportionately severe punishment — sentencing first offenders — young people — rehabilitation

Facts:

The matter is a reference by the Suva Magistrates Court to the High Court by way of case stated, seeking answers to the following questions:

(a) Is s 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 s 25(1) of the Constitution?

(b) 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?

The defendant, Audie Pickering on the 7 October 1998 was found to be in possession of 4.7 grams of Indian hemp. The defendant requested the Director of Public Prosecutions to withdraw the charge, but the request was refused.

On 8 November 2000, his counsel made an application to the magistrate to refer the constitutional questions to the High Court. She agreed, and the matter came before the High Court on 20 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 s 37(4) of the Human Rights Commission Act. The State was represented by counsel for the Director of Public Prosecutions.

Held:

1. 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 s 25(1) of the Constitution.

2. Even if the application had failed on general constitutional invalidity, it would have passed on the severe disproportionality test for this particular offender.

Shaheem J:

...

Particulars of offence

...

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 BC 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’.

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The law

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In 1990 the Dangerous Drugs Act (Amendment) Decree 1990 was passed ... Section 3 of the Decree provides:

Section 8 of the principal Act is repealed and the following substituted —

8. Every person

(1) growing opium poppy, Indian hemp or coca leaf, whether for private use or otherwise; or

(2) found in possession of or sells or otherwise traffics or engages in the trafficking of any substance to which this part applies, shall be guilty of an offence and upon conviction shall be sentenced to imprisonment in accordance with the Third Schedule of this Act —

Provided that a sentence imposed under this section shall be custodial.

The Third Schedule of the Act provides inter alia, that a conviction under section 8(b) of the Act, if it relates to possession of Indian hemp not exceeding 10 grams, has a penalty of a maximum term of 24 months imprisonment and a minimum term of 3 months imprisonment. ...

...

As Pain J said State v Alifereti Nakautogo Crim App No HAA 130 of 1997 (at page 3):

... the clear intention of section 8 (as substituted and amended by Decree) has been to provide for a mandatory immediate prison sentence as the penalty for the offence of possession of Indian hemp (and the other offences specified in the section), the term of such sentence to be within the minimum and maximum range stated in the Third Schedule.

...

On 27th July 1998, the Constitution Amendment Act 1997 came into effect. Section 2 provides:

(1) This Constitution is the supreme law of the State.

(2) Any law inconsistent with this Constitution is invalid to the extent of the inconsistency.

Section 3 provides:

In the interpretation of a provision of this Constitution:
(1) a construction that would promote the purpose or objective underlying the provision taking into account the spirit of this Constitution as a whole, is to be preferred to a construction that would not promote that purpose or object; and

(2) regard must be had to the context in which the Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural developments, especially:
(1) developments in the understanding of the content of particular human rights; and

(2) development in the promotion of particular human rights.

Section 25(1) of the Constitution provides:

Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.

...

Section 25(1) of the Fijian Constitution: Prohibition on Cruel, Inhumane, Degrading or Disproportionately Severe Treatment or Punishment

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] USSC 127; (1910) 217 US 349, the United States Supreme Court, in interpreting the Eighth Amendment of the US 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 BC 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 BC 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 US Supreme Court in the case of Furman v Georgia [1972] USSC 170; (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.

Section 25(1) and the Dangerous Drugs Decrees

How do we assess disproportionality in relation to a punishment imposed by the legislature?

It is not enough that the judge considers the sentence to be unfairly disproportionate. The sentence must be grossly or severely disproportionate. In interpreting section 25(1) in relation to a particular sentence, the court should prefer a construction which promotes the purpose or object underlying the provision (a purposive approach) and must ‘promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights’ (section 43(2) of the Constitution).

The clearest statements of how one is to approach the question of ‘disproportionality’ come from the United States, Canadian and Namibian authorities.

...

Insofar as sentencing policy generally reflects one or more of the four main purposes of punishment, that is, deterrence, prevention, rehabilitation and retribution, any of these aims, if reflected by the Drugs Act (Amendment) Decrees would be valid from the point of view of the justice system. Furthermore the reasons why mandatory minimum terms of imprisonment are adopted, are well-known to criminal justice personnel. They are, that punishment should fit the crime, that serious offenders should be incapacitated to protect the community, that it eliminates inconsistent sentencing and induces defendants to co-operate with authorities (see South African Law Commissions Issue Paper 11 ‘Sentencing Mandatory Minimum Standards’).

These purposes are not unconstitutional per se. As I have already said in this judgment, mandatory imprisonment is not unconstitutional per se. ...

...

What are the principles of proportionality in considering the constitutional validity of the effect of a law? The Canadian courts have considered firstly, the gravity of the offence, secondly, the circumstances of the offender, thirdly, a consideration of the appropriate range of sentences for such offences, fourthly, a comparison with other crimes within the jurisdiction, and fifthly, whether in the case before the court, the sentence would be grossly disproportionate. (Smith (supra)).

The Namibian Courts consider whether the punishment is startlingly inappropriate, for the reasonably hypothetical offender and whether in the context of Namibian society, the punishment is grossly disproportionate. The US Supreme Court test is whether the punishment is so severe that it is degrading to the dignity of human beings, or that it is arbitrarily inflicted, or that it is unacceptable to contemporary society, or that it is excessively severe.

...

In the context of Fiji society, is the sentence disproportionately severe? It cannot be disputed that all cultures in Fiji emphasise the nurturing of the young, the respecting of the elderly, and the protecting of the weak. It is this respect for humanity that forms the basis of our Constitution. The Bill of Rights protects the young, the weak, the disempowered and the disadvantaged from unjust and arbitrary behaviour. It is this compassion and belief in the nurturing and protecting of our youth, that is the backbone of the Juveniles Act which provides that juveniles must not be imprisoned except for the most grievous of crimes and only if there is no other option.

In the context of this society, our Fiji society, the punishment of mainly young first offenders many of them children, for a mandatory term of 3 months imprisonment irrespective of the circumstances of their offending and in the absence of a significant mens rea, or evidence of intention, is clearly grossly and disproportionately severe. It offends the compassionate humanitarian spirit of the Bill of Rights.

...

Audie Pickering

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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.

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