Gangasing Aubeeluck v The State of Mauritius

A statutory minimum sentence may be disapplied where its application would be wholly or grossly disproportionate to the seriousness of the offence and would therefore constitute inhuman or degrading punishment contrary to section 7 of the Constitution. The court must consider individual culpability and mitigation while recognising the legislature’s assessment of the offence’s seriousness. Inordinate delay may infringe the right to a fair hearing within a reasonable time. Its sentencing consequences are fact-sensitive and should ordinarily be determined by the sentencing court, together with current sentencing practice and any later, more lenient regime.

The appellant was convicted in Mauritius of possessing and selling small quantities of gandia and of smoking gandia. The offences were committed in 1998. He was convicted and sentenced in 2004 under the Dangerous Drugs Act 1986, which required a trafficker to receive at least three years’ penal servitude. The Supreme Court dismissed his appeal against conviction and later refused leave to appeal to the Privy Council.

Before the Board, the issues concerned proportionality under section 7 of the Constitution, delay under section 10, and the principle of la peine la plus douce in light of the Dangerous Drugs Act 2000. The central question was whether the statutory minimum could lawfully be applied in the circumstances of this case.

The appeal was allowed to the extent that the sentence of three years’ penal servitude was quashed. The question of sentence was remitted to the Supreme Court. Subject to written submissions within 21 days, the respondent was ordered to pay the appellant’s costs of the appeal.

1. Proportionality. Section 7 of the Constitution outlaws wholly disproportionate penalties. A statutory minimum may be disapplied where, in the particular case, its application would be wholly or grossly disproportionate to the seriousness of the offence and would amount to inhuman or degrading punishment. The Board accepted the approach reflected in the Mauritian authorities and in Reyes v The Queen [2002] UKPC 11.

2. The appellant was convicted as a trafficker, but the offending involved small quantities of gandia, first offences, a person of good character, and conduct which would not now have been charged as trafficking under the Dangerous Drugs Act 2000. The legislature’s concern about drug trafficking remained important, but could not justify disregarding all mitigation. The three-year minimum was grossly disproportionate and had to be set aside.

3. The Board declined to determine the appropriate replacement sentence. The Supreme Court was better placed to consider current sentencing practice, up-to-date information about the appellant, the effect of delay, and the principle of la peine la plus douce.

4. Delay. The proceedings involved inordinate delay which infringed the appellant’s right under section 10 to a fair hearing within a reasonable time. Relevant considerations included the complexity of the case, the defendant’s conduct, and the manner in which the state’s administrative and judicial authorities dealt with the proceedings. The appellant’s failure to press for expedition did not answer the constitutional complaint.

5. The effect of delay on sentence was fact-sensitive. The sentencing court had to take it into account and might conclude that custody was no longer necessary, but the final decision was remitted to that court.

• Privy Council: The appeal was allowed to the extent that the three-year sentence was quashed. Sentence was remitted to the Supreme Court, with costs subject to written submissions.
• Supreme Court of Mauritius: On 29 January 2007, the court dismissed the appeal against conviction. On 3 March 2009, it rejected the grounds advanced on the application for leave to appeal to the Privy Council.
• Intermediate Court: On 5 October 2004, the appellant was convicted of three offences. On 12 October 2004, he received the statutory minimum of three years’ penal servitude on the possession and selling counts, together with fines and consequential orders.