Aubeeluck v The State of Mauritius
| Jurisdiction | UK Non-devolved |
| Judge | LORD CLARKE |
| Judgment Date | 21 July 2010 |
| Neutral Citation | [2010] UKPC 13 |
| Docket Number | Appeal No 0075 of 2009 |
| Court | Privy Council |
| Date | 21 July 2010 |
[2010] UKPC 13
Lord Phillips
Lord Rodger
Lord Walker
Lord Brown
Lord Clarke
Privy Council
Appellant
Siddhartha Hawoldar
Yanilla Moonshiram
(Instructed by MA Law LLP)
Respondent
Satyajit Boolell DPP
Mrs Sulakshna Beekarry
(Instructed by Royds LLP)
Introduction
The principal question raised by this appeal is whether, and in what circumstances, a court is entitled to pass a lesser sentence than the minimum sentence provided by law for the commission of a criminal offence.
The convictions
On 5 October 2004 the appellant, Gangasing Aubeeluck, was convicted by the Intermediate Court of three offences, all of which were committed as long ago as 15 December 1998. On count one, he was convicted of unlawfully and knowingly having in his possession 2.9 grams of gandia wrapped in ten packets, each in cellophane paper. The Magistrate, B Marie Joseph, in a conspicuously clear judgment, inferred that he was engaged in trafficking in drugs on the basis of these considerations: that he had in his possession ten small packets of gandia; that the gandia was wrapped in a manner which readily lent itself to retail sale; that he was standing at a conspicuous spot at the corner of two streets with no plausible reason to account for his presence there; that when cautioned he readily stated that he 'pe trace ene la vie'(which means 'I am trying to make a living') and that the money was the proceeds of sale of gandia; and that he also readily confessed to having sold one packet of gandia before he was caught.
The sale of the one packet of gandia for Rs 100 was the subject of count two. Count three simply alleged that he was smoking gandia. The Magistrate observed that those counts depended upon admissions made by the appellant in the first statement he had made to the police. There had been an issue as to whether the admissions were voluntary and admissible in evidence but the Magistrate had held a voir dire at which she had concluded that they were both voluntary and admissible. She also inferred that he was trafficking in drugs when he sold the packet the subject of count two, essentially for the reasons given above.
In short, the Magistrate held that the appellant was guilty of possession of drugs as a trafficker, of selling the single packet of gandia as a trafficker and of smoking gandia and that it followed that all three counts were proved.
The sentences
On 12 October 2004 the Magistrate sentenced the appellant to a minimum term of penal servitude for three years on counts 1 and 2. She also fined him Rs 15,000 on each of those counts. She fined him Rs 2,000 on count 3. In addition she ordered him to pay costs of Rs 400 and made some further consequential orders in relation to his assets.
The appeal to the Supreme Court
The appellant appealed against his conviction to the Supreme Court. He advanced a number of discrete points. It was said, among other things, that the Magistrate should have upheld a submission of abuse of process and that she should have ruled the admissions to be involuntary and inadmissible. In a judgment given on 29 January 2007 the Supreme Court (P Balgobin and AA Caunhye JJ) rejected all the appellant's grounds of appeal and dismissed his appeal against conviction. The appellant applied to the Supreme Court for leave to appeal to the Privy Council on a number of grounds. At the hearing of the application only two grounds were argued, both of which related to conviction. In a judgment given on 3 March 2009 the Supreme Court (YKJ Yeung Sik Yuen, Chief Justice, and R Mungly Gulbul, Judge) rejected them both.
Although the original grounds of appeal to the Supreme Court stated that the appellant was appealing against sentence as well as conviction, the only ground upon which he did so was that the sentence 'is manifestly harsh and excessive'. None of the points which have been advanced before the Board was put before the Supreme Court. The appellant has been on bail throughout.
The grounds of appeal to the Judicial Committee
In his statement of case before the Board the appellant advanced four grounds, only one of which related to conviction. It was a ground which had failed in the Supreme Court and was abandoned at the hearing of the appeal before the Board. The three grounds which were argued before the Board all related to sentence. None of them had been advanced, either before the Magistrate, or in the Supreme Court. However, the Board granted permission to appeal on 16 July 2009 and it was not contended by the Director of Public Prosecutions ('the DPP') that any of the points now relied upon should not be considered by the Board.
The issues now raised are these:
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i) whether the delay of 11 years since the commission of the offences infringes the appellant's right to a fair hearing within a reasonable time under section 10 of the Constitution, such that the court should not now require him to serve a sentence of imprisonment;
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ii) whether, having regard to the provisions of the Dangerous Drugs Act 2000, the application of the principle of 'la peine la plus douce' requires that he should not be required to serve such a sentence; and
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iii) whether the sentence of three years imposed by the Magistrate and in effect upheld by the Supreme Court on appeal breaches the principle of proportionality enshrined in section 7 of the Constitution.
It is convenient to consider the proportionality point first but, before doing so, it is appropriate to identify the relevant provisions both of the Constitution and of the Dangerous Drugs Acts 1986 and 2000 ('the DDA 1986' and 'the DDA 2000')
The Constitution
Sections 2, 7 and 10 provide, so far as relevant, as follows:
"2 Constitution is supreme law
This Constitution is the supreme law of Mauritius and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.
7 Protection from inhuman treatment
(1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.
10 Provisions to secure protection of law
(1) Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law."
The DDA 1986 and the DDA 2000
The appellant was charged and convicted under the DDA 1986, as amended by Acts 1/92 and 29/94. On counts one and two, which of course alleged possession and selling, he was convicted of a breach of section 28(1)(a) and (b) of the DDA 1986, as amended, respectively. Section 28 provided, so far as relevant, as follows:
"28 Unlawful dealing with dangerous drugs
(1) Subject to section 38, every person who unlawfully -
(a) (i) has in his possession, smokes, consumes or administers to himself or to any other person any drug specified in subsection (2);
…
shall commit an offence and shall on conviction be liable to a fine which shall not exceed 5,000 rupees and to imprisonment for a term which shall not exceed 8 years;
(b) sells … any drug specified in subsection (2) shall commit an offence and shall on conviction be liable to a fine which shall not exceed 50,000 rupees and to penal servitude for a term which shall not exceed 12 years.
(2) This section shall apply to
…
(b) … gandia …"
Section 38 provided for trafficking in drugs and by subsection (3) provided, so far as relevant here, that any person tried under section 28 and found to be a trafficker was liable in the case of a first conviction to a fine not exceeding Rs 100,000 "together with penal servitude for a term which shall not exceed 20 years".
Section 47 of the Interpretation and General Clauses Act provides that where several penalties are provided for an offence,
"the use of –
(a) 'or' means that the penalties are to be inflicted alternatively;
(b) 'and' means that the penalties may be inflicted alternatively or cumulatively;
(c) 'together with' means that the penalties are to be inflicted cumulatively."
Section 11(1) of the Criminal Code provides that the punishment of penal servitude is imposed for life or for a minimum term of 3 years.
It is common ground that the effect of those, somewhat unusual, provisions is that the Magistrate had no alternative but to sentence the appellant to penal servitude for a minimum of three years. The Board was told that, whereas penal servitude was at one time a particularly harsh form of imprisonment, it is now no different from what could be called ordinary imprisonment.
The appellant was charged, convicted and sentenced under the DDA 1986, which had been passed when there was very serious concern about drugs in Mauritius. Although that concern remains, the DDA 1986 was replaced by the DDA 2000, which came into force in September 2001. Section 28(1)(a) of the DDA 1986 was replaced by section 34 of the DDA 2000 which, for possession, provided for a fine not exceeding Rs 50,000 and, in the case of a second or subsequent conviction, for imprisonment for a term not exceeding two years.
Section 30 provided for a number of drug dealing offences, including selling gandia. The prescribed penalties for selling gandia were originally a fine not exceeding Rs 1 million and a term of penal servitude not exceeding 25 years. The period of 25 years was reduced to 20 years in 2008. Until early 2009 the effect of section 48 was that, where a court convicted a person of an offence under section 30 (among other sections) it was bound to inflict a fine of not less than Rs 10,000 'together with' imprisonment for a term of not less than 12 months. It follows that, if the DDA 2000 had applied to the appellant and he had committed an offence under ...
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