Razcoomar Moodoosoodun v The State of Mauritius (Mauritius)

A statutory minimum sentence must be assessed against the circumstances as they stand when the appeal is decided. Available mitigation, inordinate delay, and a materially different later statutory regime may make an otherwise mandatory term wholly disproportionate. Where the appellate court lacks sufficient information about mitigation, it may quash the sentence and remit sentencing to the court better placed to assess the just sentence.

The appellant was convicted in Mauritius of cultivating gandia plants, with trafficking inferred from the quantity, and of possessing gandia. He received three years’ penal servitude on the cultivation and trafficking count and a fine on the possession count.

The Supreme Court dismissed his conviction appeal. The appellant pursued before the Privy Council a substantially similar sentencing ground to that advanced in Gangasing Aubeeluck v The State of Mauritius. The central issues concerned proportionality, delay, mitigation, the later position under the Dangerous Drugs Act 2000, and la peine la plus douce.

1. Disposition. The Board refused leave on the remaining grounds. It determined the sentencing application and appeal, quashed the sentence of three years’ penal servitude, and remitted sentencing to the Supreme Court.
2. Adopted reasoning. Lord Clarke delivered the judgment of the Board. The Board adopted the reasoning and conclusions in Gangasing Aubeeluck v The State of Mauritius. The issues and the relevant provisions of the Constitution of Mauritius, the Dangerous Drugs Act 1986 and the Dangerous Drugs Act 2000 were materially the same. The Board added nothing to its discussion there of proportionality, delay and la peine la plus douce.
3. Proportionality. Although the facts differed, the three-year minimum sentence was wholly disproportionate when assessed in light of the circumstances as viewed at the time of decision. The minimum made no allowance for available mitigation, the inordinate delay of approximately 11 years since the offences, or the fact that the statutory position under the Dangerous Drugs Act 2000 would be very different.
4. Remedy. The Board declined to substitute an increased fine. It knew little or nothing about the mitigation available to the appellant, and the Supreme Court was therefore better placed to assess the just sentence. The respondent was ordered, subject to written submissions within 21 days, to pay the appellant’s costs of the appeal.

• Privy Council. In [2010] UKPC 17, the Board quashed the three-year sentence and remitted sentencing to the Supreme Court, while refusing leave on the other grounds.
• Supreme Court of Mauritius. On 2 October 2009, the court dismissed the appeal against conviction. There was no appeal against sentence.
• Supreme Court of Mauritius. On 26 November 2009, the court refused leave to appeal to the Privy Council.