[2014] UKPC 19
Privy Council
Appeal No 0050 of 2013
JUDGMENT
Sabapathee
(Appellant) v The Director of Public Prosecutions (Respondent)
From the Supreme
Court of Mauritius
before
Lord Mance
Lord Clarke
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT
DELIVERED BY
Lord Toulson
ON
25 June 2014
Heard on 27
March 2014
Appellant
Yanilla Moonshiram
(Instructed by MA Law(Solicitors)
LLP)
Respondent
Geoffrey Cox QC
Iqbal Maghooa
(Instructed by Royds Solicitors)
LORD
TOULSON:
1. This is an appeal against a judgment of the Supreme Court (Y
K J Yeung Sik Yeun CJ and R Teelock J), allowing an appeal by the Director of
Public Prosecutions (“DPP”) against a sentence passed on the appellant in the
Intermediate Court of Mauritius by Magistrate Mrs A Ramdin for an offence of
possessing cannabis for the purpose of distribution, contrary to section
30(1)(f)(i) of the Dangerous Drugs Act 2000 as amended by Act 30 of 2008
(“DDA”). The appeal is brought by
special leave of the Board. The appeal
raises questions about the proper approach to the relevant sentencing
provisions.
Facts
2. On Saturday, 5 June 2010, police officers with a search
warrant went to an address where the appellant was living at Flic en Flac. On their arrival the appellant tried
unsuccessfully to dispose of two plastic bags by flushing them down the
lavatory. Each bag contained 100 packets
of cannabis leaf. In all the drugs
weighed a little over 70g. In an
interview with the police three days later the appellant said that he had
bought the cannabis on the afternoon of Thursday 3 June after he was approached
near the jetty at Flic en Flac by a man whom he did not know. The man was selling the packets for 75 rupees
each but offered a reduced price of 50 rupees for buying all 200 packets,
amounting to 10,000 rupees, which the appellant paid him in cash. The appellant said that the drugs were for
his own consumption.
3. The appellant was aged 29. He was not in paid employment,
but he said that he acted as an agent for renting bungalows and that the cash
which he used to buy the cannabis had come from that activity. He had two
previous convictions for possession of heroin, for which he was fined, and a
conviction in 2005 for dealing in heroin, for which he was sentenced to 2
years’ imprisonment.
4. The appellant initially pleaded not guilty to the charge of
possession for the purpose of distribution, but on the day of the trial, 28
September 2010, he changed his plea to guilty.
He gave evidence in which he confirmed that he had bought the cannabis
to consume, because it was a cheap offer, but he had decided to stop
smoking. It was not of course open to
him to go behind his plea of guilty to being in possession for the purpose of
distribution at the time when the cannabis was found. He was not crossexamined.
5. In her sentencing remarks the magistrate referred to the
time that the appellant had spent on remand (about four months), his guilty
plea, the value of the drugs (put at 30,000 rupees), his previous drug-related
offending and the fact that he had shown remorse. She concluded that a heavy fine would meet
the ends of justice. She sentenced him
to pay a fine of 150,000 rupees and costs of 500 rupees.
6. On 15 October 2010 the DPP issued a notice of appeal. The grounds of appeal were that the
magistrate was unduly lenient; that she failed to give proper consideration to
the appellant’s previous convictions for drug offences; and that she was wrong
not to have imposed a custodial sentence.
The appeal was heard on 13 February 2012 and judgment was given on 27
July 2012. In its judgment the Court
recognised that the possible sentencing range was large and allowed the trial
court to exercise its discretion according to the circumstances of each
particular case. The judgment continued:
“However, in the present case a fine sits
uncomfortably with the circumstances of the present offence. The appellant is not at his first offence,
the present one is his fourth offence, all drug related. It is his second drug dealing offence albeit
after five years. The amount found on
him exceeds what would be found on a small-time dealer or someone feeding his
own drug addiction. Two hundred packets worth Rs30,000 indicates a medium range
stock of illegal drugs. He did not plead
guilty at the first available opportunity; he did not assist the police in
arresting other persons involved in the illegal business; the time spent on
remand was on the low side and finally, even after his guilty plea, he did not
wholeheartedly embrace the fact that the drugs were in his possession for
distribution but attempted to downplay his criminality by saying the drugs were
for consumption. In principle, the
present circumstances deserve a custodial sentence and is in keeping with
precedents in sentencing for such offences.”
7. The court quashed the fine imposed by the trial court and
substituted a sentence of three years’ penal servitude, less time spent on
remand. The execution of the sentence
has been suspended pending the outcome of this appeal.
Legislative provisions
8. Section 30(1)(f)(i) of the DDA, as amended, provides that a
person who commits an offence under that section in relation to cannabis shall
be liable on conviction “to a fine not exceeding one million rupees and to
penal servitude for a term not exceeding 25 years”. Section 47 of the Interpretation and General
Clauses Act 1974 states that where several penalties are provided for an
offence, the use of “and” means that the penalties may be inflicted
alternatively or cumulatively.
9. Section 11(1) of the Criminal Code provides that the
punishment of penal servitude is imposed for life or for a minimum term of
three years. However, section 7 of the
Constitution, which provides that “no person shall be subjected to torture or
to inhuman or degrading punishment or other such treatment”, has been
interpreted as making it unconstitutional for a court to impose a sentence
which is grossly disproportionate to what the offender deserves and therefore
capable of overriding a statute dictating a minimum sentence: Aubeeluck v The
State of Mauritius [2010] UKPC 13. In
the case of a cannabis related offence under section 30 of the DDA, the
combined effect of that section and section 7 of the Constitution is that if
the court considers a custodial sentence to be necessary, it must pass a
sentence of penal servitude for not less than three years, unless a sentence of
that length would be grossly disproportionate.
If a sentence of that duration would be grossly disproportionate, the
proper sentence will be a custodial sentence for such shorter term as will not
involve a violation of section 7 of the Constitution.
10. The DPP’s appeal to the Supreme Court was brought under section
92 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888, as
amended (“DIC”). That section provides:
“Where any person is charged with an offence before a
Magistrate or before the Intermediate Court, an appeal shall lie to the Supreme
Court against any final decision of the Court –
(a) by the
person charged, against his conviction or sentence, where he is sentenced to
undergo penal servitude or imprisonment with or without payment of a fine, or
to pay a fine of Rs500 or more;
(b) by the
Director of Public Prosecutions or, in the case of a private prosecution, by
the prosecutor, against any dismissal of a charge or, in the case of a
conviction, against the imposition of any sentence.”
The powers of the Supreme Court on hearing such an
appeal are set out in section 96. Under
subsection (2), it may affirm or reverse, amend or alter the conviction, order
or sentence.
11. Where the Supreme Court is exercising its jurisdiction as court
of trial in a criminal matter, rather than an appellate court, appeal lies to
the Court of Criminal Appeal under section 5 of the Criminal Appeal Act
1954. Under section 5(2) of the Act, as
amended, the DPP may appeal to the Court of Appeal against a sentence passed in
the Supreme Court if “he is of opinion that the sentence passed is wrong in law
or unduly lenient”.
The proper approach on an
appeal against sentence
12. It was submitted on behalf of the appellant that the Supreme
Court should only allow an appeal by the DPP against a sentence passed in the
Intermediate or District Court under section 96 (2) of the DIC if it is
satisfied that the sentence passed in the lower court was wrong in principle or
manifestly inadequate. In other words,
it was submitted that the Supreme Court as an appellate court should adopt the
same test in substance as that which applies under section 5(2) of the Criminal
Appeal Act in the case of an appeal by the DPP to the Court of Criminal Appeal.
13. The appellant’s submission accords with the opinion of the
Board delivered by Lord Steyn in Kailaysur v The State [2004] UKPC 23; [2004] 1
WLR 2316. Referring to the power to
increase a sentence on appeal under section 96(2) of the DIC, he said at para
9:
“It is . . . a power which must be relatively
sparingly exercised and then only in cases where the sentence imposed by the
trial court was manifestly inadequate.
And in all cases the reasons for exercising this drastic power must be
explained.”
14. This
passage was cited by the Board as a statement of general principle governing a
statutory power to increase sentence in the case of Oliver v The Queen [2007]
UKPC 9 (on an appeal from a decision of the Court of Appeal of The Bahamas).
15. On behalf of the DPP it was submitted that the power of the
Supreme Court to increase a sentence passed in the Intermediate Court under
section 96 of the DIC is not so constrained.
In support of that submission the Board was referred to its decision in
DPP v Sabapathee [1997] 1 WLR 483. This
was an appeal by the DPP against a decision of the Supreme Court of Mauritius
allowing an appeal against the defendant’s conviction before the Intermediate
Court of offences of supplying or possessing drugs and possessing
ammunition. The Supreme Court had
allowed the appeal because they were not persuaded that the prosecution had
proved the defendant’s guilt beyond reasonable doubt. The DPP submitted that the power of the
Supreme Court to interfere with the findings of the magistrates was a narrow
one. Lord Hoffmann said of section 96 at
pp 485-486:
“Their Lordships consider that this section confers a
full right of appeal by way of rehearing in the Supreme Court. That Court will ‘revise’, ie go over again,
the ‘information, depositions and other evidence and conviction before the
Intermediate or District Court’ and after such revision may ‘affirm or reverse,
amend or alter’ the conviction, order or sentence. The reference to affirming the conviction,
rather than dismissing the appeal, shows that the Supreme Court is not
concerned merely to decide whether the lower court acted within its
powers. If it affirms the conviction
after revising the evidence, it makes that verdict its own. This requires that the Supreme Court should
itself be satisfied that the prosecution has proved the guilt of the defendant
beyond reasonable doubt.
The great difference between the hearing in the
District or Intermediate Court and the revision of those proceedings in the
Supreme Court is that the former Court hears oral evidence and is able to
observe the demeanour of the witnesses.
The Supreme Court has only the written record, which is seldom verbatim
and often translated. It follows that in
hearing an appeal the Supreme Court is ordinarily entitled to assume that the
findings of the lower court on questions of credibility were properly founded
upon their assessment of the merits of the witnesses. It will therefore be
unusual for such findings to be set aside merely because on a reading of the
record the Supreme Court would have been inclined to form a different
view. But this observation is not based
on any rule of law restricting the revising jurisdiction of the Supreme Court. Acknowledgement of the advantages enjoyed by
the magistrates in assessing credibility is no more than a matter of common
sense. On the other hand, the facts may
be such that the Court of Appeal is nevertheless left with a genuine doubt
about the guilt of the defendant; a feeling that the magistrates may have made
a mistake in accepting the prosecution evidence. Much depends upon the nature of the
case. If, however, the Court is not
satisfied that the prosecution have proved the guilt of the defendant beyond
reasonable doubt, it is their duty to allow the appeal.”
16. That decision was not cited in subsequent cases of Kailaysur
and Oliver, but it is not surprising.
The issues were very different.
In Sabapathee the Board was not considering the power of the Supreme
Court to increase a sentence passed in the Intermediate Court, and its decision
should not be read as authority on how that power should be exercised. The Board is in no doubt that the principle
stated in Kailaysur and repeated in Oliver is sound and should continue to be
applied.
17. The reasons were powerfully stated by the Court of Criminal
Appeal (YKJ Yeung Sik Yeun CJ and Domah and Matadeen JJ) in Dookee v Director
of Public Prosecutions [2010] SCJ 71 on an appeal by the DPP under section 5(2)
of the Criminal Appeal Act, as it then was.
The DPP’s power to appeal against a sentence passed by the Supreme Court
was not at that time expressly limited by the words “where … he is of opinion
that the sentence passed is wrong in law or unduly lenient”, but the court said
at para 177:
“. . . sentencing is not a science of mathematical
application of any set formula. It is a
normative science rather than a physical science which takes into account the
circumstances of the offender as well as the offence and the impact of the
offence on the community. A sentence may
look to be lenient because it is tailored to fit the offender, the offence and
the offended but, in our system of justice, the trial court is the only
constitutional institution which is empowered and sovereign in determining
which sentence to impose on an offender on the facts of the particular
case. An appellate court would scarce
intervene unless the sentence is wrong in principle or manifestly harsh and
excessive or unduly lenient. However,
even if there is nothing wrong with the principle, the sentence may be
increased by the appellate court if it is unduly lenient. The principle of proportionality pervades
through the whole system of justice, in procedure, substance and sanctions.”
18. In applying the “unduly lenient” test, used in that passage and
now in section 5(2) of the Criminal Appeal Act, the Board would caution against
reliance on English authorities because the sentencing regimes are not
identical. The words should be
understood in the same sense as the expression “manifestly inadequate”, used by
the Board in Kailaysur and Oliver. When
it is considering an appeal against sentence by the DPP, the question for an
appellate court in Mauritius is whether the sentence was wrong in law or
plainly too low, making full allowance for the matters properly stressed in
Dookee, namely that sentencing is not a mathematical exercise but is one in
which the sentencing court has a wide area of judgment. An appellate court must also make full allowance
for the fact that by the nature of things generally speaking a sentencing court
has advantages in its feel for the case and its ability to assess all the
relevant facts and circumstances, including the effect on any victim and the
attitude of the offender, which are not shared to the same extent by a court
subsequently reviewing its decision on the written record.
The DPP’s decision to appeal
19. The first ground of appeal raised by the appellant in his
petition is that the DPP’s decision to appeal was an arbitrary use of his power
under section 92 and a breach of the principle of fairness.
20. In support of this ground it was said that this was the first
occasion on which the DPP had exercised his right of appeal under section 92 of
the DIC, except by way of cross appeal in cases where the defendant had
initiated an appeal against conviction and/or sentence. The appellant also pointed to other cases in
which the DPP had not exercised his power to appeal against sentences which
allegedly involved greater leniency than the present case.
21. The logic of the submission is that by not previously
exercising his power to appeal in comparable cases the DPP made the statutory
provision a dead letter, except in cases where an appeal is initiated by the
offender. This “use it or lose it” approach
to the exercise of a statutory power is a novel constitutional proposition and
is unsound. The existence of the
statutory power means that Parliament must have intended that the DPP should
exercise it in circumstances in which, exercising his discretion, he considers
it right to do so. A decision not to
exercise that power in the case of X cannot, without more, make it wrong as a
matter of public law for the DPP to exercise his discretion to bring an appeal
in an unrelated subsequent case involving Y.
It should be added that there is no suggestion in this case that the
DPP’s decision to appeal was activated by some improper motive.
Unconstitutional delay
22. Section 10(1) of the Constitution provides:
“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.”
23. It was submitted on behalf of the appellant that his
constitutional right to the conclusion of the proceedings within a reasonable
time was breached by the Supreme Court allowing the DPP’s appeal against
sentence 1 year 10 months after the imposition of the original sentence.
24. The Board accepts that a defendant’s rights under section 10
could be violated by inordinate delay in the processing of an appeal by the
DPP. The question is whether the delay
is sufficiently inordinate to have that effect.
25. The Board is aware that judicial resources in Mauritius are
strained, but that is not a satisfactory explanation for the length of time
which elapsed in this case. The Court
record shows that the hearing of the appeal on 13 February 2012 occupied the
Court for 47 minutes. The date of the
appeal appears to have been fixed at hearing on 15 February 2011, at which the
parties were represented. The Board is
not aware of the full circumstances, but on the face of it the Board considers
it highly regrettable that an appeal of this kind should be fixed for a hearing
date in a year’s time. It is also
regrettable that it took nearly six months thereafter for the court to deliver
a 4 page judgment.
26. An appeal against sentence by the DPP is exceptional and
involves double jeopardy for the offender.
Such cases ought to be processed expeditiously. This is especially so
where the defendant has received a non-custodial sentence (or where a custodial
sentence imposed by the sentencing judge will have expired by the time that the
appeal is heard) and the DPP is arguing that he should receive a custodial
sentence (or be returned to prison to serve a longer sentence).
27. The Board is troubled by the overall delay in this case but it
is not persuaded that the period was so long as to make it unconstitutional for
the Supreme Court to disturb the original sentence. It was nevertheless a
factor which justice required should be taken into account in deciding the
outcome of the appeal.
The Supreme Court’s decision
28. It was submitted on behalf of the appellant that the Supreme
Court failed properly to address the question whether the original sentence was
unduly lenient; that the judge gave due consideration to the mitigating and
aggravating circumstances and arrived at a decision which was properly open to
her; and that the Supreme Court failed to give adequate reasons for allowing
the appeal.
29. The judgment began by setting out the DPP’s grounds of appeal,
the first of which was that the appeal was wrong in principle and unduly
lenient. The court did not state in
express terms that it considered the sentence to be unduly lenient, and it
would have been better if it had done so, but it is clear in the Board’s view
that the court came to that conclusion for the reasons which it gave in the
passage set out in para 6 above, and it supported that conclusion by referring
to sentences passed in a number of other cases.
30. The Board considers that the Supreme Court was entitled to
reach that view and gave sufficient reasons.
The quantity of drugs with which the appellant was caught was not
inconsiderable. Importantly, it was not
his first offence of drug dealing.
Having pleaded guilty only at the last minute, he was entitled to very
little discount for doing so. Moreover,
the Supreme Court is in a far better position than the Board to assess the
proper tariff for drugs offences in Mauritius, and the Board would be
accordingly slow to interfere with its decision in such a matter.
31. Ms Moonshiram submitted that it was unfair for the Court to say
that “even after his guilty plea, he did not wholeheartedly embrace the fact
that the drugs were in his possession for distribution but attempted to
downplay his criminality by saying the drugs were for consumption”, since the
appellant had not been cross-examined.
The Board does not consider this to be a point of significance. The appellant’s evidence on the point was
either inconsistent with his plea or involved a novel suggestion, not expressly
stated, that during the 48 hours between buying the drugs and the visit by the
police he had decided, implausibly, to sell the drugs initially bought for his
own consumption. The transcript of the
proceedings before the Supreme Court shows that this explanation was not put
forward by Ms Moonshiram when the court pointed out that by his evidence the
appellant appeared to be going back on his plea. On the contrary, she had no answer to the
court’s suggestion that his evidence was in contradiction of his plea.
32. The Board considers that the Supreme Court was entitled to
conclude that the original sentence should have been a custodial sentence for
three years and that a noncustodial sentence was manifestly inadequate. However, the Supreme Court did not go on to
consider the factor of double jeopardy and the length of the delay which had
elapsed since the imposition of a non-custodial sentence, nor did it consider
whether in these circumstances the substitution of a three-year sentence would
be grossly disproportionate so as to involve a violation of section 7 of the
Constitution. In these respects it fell
into error.
33. The Board has considered whether the right course would be to
send the matter back to the Supreme Court for its reconsideration. However, this would involve yet further delay
and uncertainty for the appellant.
34. There have been changes in the appellant’s personal
circumstances since his conviction. He
is now married, his wife is pregnant and he has employment at a gym. The offence was a serious one and the Board
is not persuaded that it would be grossly disproportionate for the appellant to
serve a period in custody for it, but it is satisfied that it would be grossly
disproportionate, in all the circumstances that he should now be required to
serve a sentence as long as three years.
The Board concludes that the appropriate course is that his appeal
should be allowed, the sentence of three years imposed by the Supreme Court
should be quashed and there should be substituted a sentence of 18 months’
imprisonment, less the period spent by the appellant on remand in custody.
