Appeal Court Judges Say ‘Yes’ To Drugs
The Court of Appeal yesterday exposed weaknesses in the government’s mandatory minimum sentence law when it quashed the sentences of two men who pleaded guilty to possessing small quantities of drugs and were sentenced to four years each in line with the law passed by Parliament last year.
The justices remitted both cases to the magistrate who originally heard them, on the grounds that the sentences were not proportionate to the crimes. The magistrate must now consider ‘appropriate’ sentences in each case.
The justices determined that Parliament cannot bind the hands of higher courts to determine the relevance of a sentence to an offense.
But the court said even if magistrates are of the view that the mandatory minimum sentence in any particular case would be unconstitutional, they must impose it and may thereafter refer the matter for determination by the Supreme Court.
“…Magistrates in the exercise of their sentencing functions…going forward, are bound to apply the law as enacted,” said the ruling, which was jointly written by Court of Appeal President Justice Anita Allen and Justice Christopher Blackman.
The justices noted that the government introduced mandatory minimum sentences in an attempt to deal with the very serious problem of trafficking in dangerous drugs, and the accompanying high incidence of violence in The Bahamas.
The ruling yesterday was handed down in the matters of Andrew Davis and Anthony Armbrister.
Davis pleaded guilty on December 8, 2011 to possession of dangerous drugs with intent to supply six ounces of marijuana. He said the drugs were for his use and that of his friend.
Davis did accept, however, that he was ‘supplying’ his friend, and technically in breach of the law.
Deputy Chief Magistrate Carolita Bethel imposed the minimum sentence of four years, which was the sentence provided by the amendment to the Dangerous Drugs Act passed November 4, 2011.
Davis’ attorney Murio Ducille argued that when the magistrate sentenced Davis on his conviction following the guilty plea, she erred when she said she had no discretion and could only impose the mandatory minimum of four years.
Ducille further argued that Parliament could not fetter the discretion of a magistrate as magistrates were a part of the judiciary.
He also urged the court to find that the sentence imposed was disproportionate to the offense, and that disregard for the principle of proportionality is inconsistent with Article 17 of the constitution where that principle is enshrined.
Armbrister was arraigned in court on November 11, 2011, on the charge of possession of dangerous drugs with intent to supply.
He pleaded guilty to possessing 51 grams of cocaine and was sentenced to four years.
His attorney, Jomo Campbell, submitted that the sentence imposed was unduly harsh and severe and that the magistrate had not taken into account the relevant mitigating factors, including that he was found with a very small quantity of drugs, that he had pleaded guilty at the earliest opportunity after being charged, and that he was suffering from penile cancer.
He told the court he intended to sell the drugs to raise money for surgery.
Campbell also made the point that the sentence violated the doctrine of proportionality.
The justices said, “Given the constitutional roles of Parliament and the courts, we agree that the enactment of a mandatory minimum sentence is not unconstitutional per se, notwithstanding that it may purport to fetter the court’s discretion in sentencing.
“A more important, but related matter to be considered in these appeals, is the principle of proportionality.”
The justices wrote: “We express no view on what is the appropriate sentence in either case, and leave the sentencing court to determine what that is. The appeals are allowed, the sentences quashed and the matters are remitted as noted.”