Periodically one reads about thieves who forced their way into a home through one of the doors. Indeed, at one time in Guyana such thieves were described as “Kick down the door bandits.”
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Drug penalty law struck down
A mandatory penalty of 25 years in jail, meant to send a powerful message to would be drug traffickers, was yesterday deemed unlawful by the Appeal Court in long-awaited decision. The ruling now allows judges the discretion to pass more lenient sentences on offenders who can prove mitigating factors in their cases.
The judges’ newfound power is a consequence of a landmark ruling delivered by a special five-member panel of the Appeal Court, in the appeal of two men who were challenging the 25-year mandatory, minimum sentence for drug trafficking. The judgment stands to affect almost a dozen convicted traffickers, whose sentencing had been deferred pending the judgment, in the highly anticipated appeal, as well as those convicted of the offence in the future.
The judgment, which had been reserved by the Appeal Court since July 2012, was one of several long outstanding appeals which the Judiciary had promised to dispose of by July, this year. Chief Justice Ivor Archie, who headed the panel and read their five-page executive summary of the judgment, said: “An accused must be punished for the crime he commits. But not only must his guilt or innocence be fairly considered, his punishment must also be fairly applied to the facts and circumstances of his case.”
Archie described the mandatory sentence as “arbitrary and capricious” as he said it did not allow for judicial discretion in adapting a sentence to the exact nature of the crime. He also said it was oppressive because it was excessive and wholly disproportionate to the actual crime.
“Such considerations are fundamental to the proper exercise of justice in a democracy, whatever the system of law. They are founded in fairness and respect for the dignity of the human person which is one of the bases upon which our nationhood was proclaimed,” Archie said.
While the appeal panel struck down the mandatory nature of the sentence, it said it did not want to disregard Parliament’s clear intention in passing the legislation—to provide strict penalties for the offence of drug trafficking. The other members of the panel are Paula Mae-Weekes, Alice Yorke Soo Hon, Peter Jamadar and Nolan Bereaux.
In the appeal, which was brought by convicted drug traffickers Barry Francis and Roger Hinds, the judges were 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 or in default an additional 15 years imprisonment.
Francis and Hinds were convicted of trafficking 1.16 kilos marijuana by a nine-member jury in the Port-of-Spain High Court in April 2010 and were sentenced to the mandatory sentence. As part of the judgment Archie and the appeal panel quashed both men’s sentences, while stating that the mandatory sentence given the facts of their case, was “grossly unfair and offensive of the fundamental principles of justice.”
However, the judges did not immediately consider the prisoners’ revised sentences during the brief hearing but instead invited their attorneys to file submissions on the issue by next Friday. Francis and Hinds are being represented by attorneys Jagdeo Singh and Amerelle Francis. The Criminal Bar Association (CBA) had been given permission by the court to intervene in the appeal and as an interested party, it provided submissions on the sentencing issue.
The CBA’s legal team included Senior Counsel Pamela Elder and Sophia Chote and attorneys Rajiv Persad, Michelle Solomon and Raphael Morgan.
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