Derek Achong

Five judges in the Court of Ap­peal have re­served their de­ci­sion on whether the 25-year manda­to­ry min­i­mum sen­tence for con­vict­ed drug traf­fick­ers is cru­el, un­usu­al and ar­bi­trary pun­ish­ment. In an ap­peal brought by Bar­ry Fran­cis and Roger Hinds, the judges are called up­on to in­ter­pret Sec­tion 5 (5) of the Dan­ger­ous Drugs Act, which states that some­one con­vict­ed of drug traf­fick­ing is li­able to im­pris­on­ment for a term of 25 years to life, and to a fine of $100,000.

Fran­cis and Hinds were con­vict­ed of mar­i­jua­na traf­fick­ing by a nine-mem­ber ju­ry in the Port-of-Spain High Court in April 2010. They were sen­tenced by Jus­tice Car­la Brown-An­toine. Sev­er­al sen­tenc­ing ex­er­cis­es for drug traf­fick­ing that are pend­ing be­fore the High Court have been put on hold un­til the mat­ter is de­ter­mined, as it is ex­pect­ed to pro­vide guid­ance for tri­al judges and de­fence at­tor­neys.

Af­ter the ap­peal of the sen­tences, the court al­lowed the Crim­i­nal Bar As­so­ci­a­tion-which rep­re­sents crim­i­nal de­fence at­tor­neys-to in­ter­vene as an in­ter­est­ed par­ty. The as­so­ci­a­tion's pres­i­dent, Se­nior Coun­sel Pamela El­der, while mak­ing sub­mis­sions yes­ter­day, said the manda­to­ry sen­tence took away a judge's dis­cre­tion in sen­tenc­ing con­vict­ed drug traf­fick­ers.

She said the as­so­ci­a­tion al­so took is­sue with the 25-year sen­tence, which she said was ef­fec­tive­ly a death sen­tence. El­der ar­gued that each case of drug traf­fick­ing was dif­fer­ent and judges should be able to take in­to con­sid­er­a­tion the char­ac­ter­is­tics and cir­cum­stances of the con­vict be­ing sen­tenced. Chief Jus­tice Ivor Archie and Jus­tices Al­ice Yorke Soo-Hon, Paula Mae Weekes, Nolan Bereaux and Pe­ter Ja­mad­har sat on yes­ter­day's ap­peal hear­ing.

The as­so­ci­a­tion's sub­mis­sions cen­tred on the con­struc­tion of Sec­tion 5 (5) as well as its con­sti­tu­tion­al­i­ty. If it is ruled un­con­sti­tu­tion­al by the judges, the as­so­ci­a­tion will al­so seek to have the court de­ter­mine whether a con­sti­tu­tion­al ex­emp­tion can be ap­plied. Dana See­ta­hal, SC, who rep­re­sent­ed the State along­side pros­e­cu­tor George Bus­by, dis­agreed with El­der.

See­ta­hal said there was flex­i­bil­i­ty for judges when sen­tenc­ing drug traf­fick­ers. The as­so­ci­a­tion's le­gal team in­cludes Ra­jiv Per­sad, Michelle Solomon and Raphael Mor­gan, while Jagdeo Singh and Amerelle Fran­cis are ap­pear­ing for Fran­cis and Hinds in the ap­peal.