Sabapathee v The Director of Public Prosecutions

On an appeal by a public prosecutor against sentence, an appellate court may increase the sentence only where it was wrong in law or plainly too low, making full allowance for the sentencing court’s wide judgment and superior feel for the case. “Unduly lenient” has the same meaning as “manifestly inadequate” in this context. Earlier non-use of a statutory appeal power does not invalidate a later appeal absent improper motive. Delay may breach section 10(1) of the Constitution if sufficiently inordinate; even where it does not, it must inform the outcome. Under section 7 of the Constitution, a statutory minimum custodial sentence yields where grossly disproportionate. If custody remains justified, a shorter term should be imposed.

The appellant pleaded guilty in the Intermediate Court of Mauritius to possessing cannabis for distribution, contrary to section 30(1)(f)(i) of the Dangerous Drugs Act 2000. The Magistrate imposed a fine. The Director of Public Prosecutions appealed under section 92 of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888. The Supreme Court allowed the appeal, quashed the fine and substituted three years’ penal servitude. On appeal by special leave, the Privy Council considered the threshold for increasing sentence, whether the DPP’s decision to appeal was arbitrary, whether delay breached the constitutional right to a fair hearing, and whether three years’ custody would be grossly disproportionate.

Appeal allowed. The three-year sentence imposed by the Supreme Court was quashed. The Board substituted 18 months’ imprisonment, less the period spent on remand.

1. Appellate threshold. Section 96(2) of the District and Intermediate Courts (Criminal Jurisdiction) Act 1888 gives the Supreme Court power to alter a sentence, but that power must be exercised relatively sparingly. The sentence must be wrong in law or plainly too low, which has the same meaning in this context as manifestly inadequate. The principle stated in Kailaysur v The State [2004] UKPC 23 and repeated in Oliver v The Queen [2007] UKPC 9 was reaffirmed.
2. Appellate restraint. Sentencing is a normative rather than mathematical exercise. An appellate court must allow for the sentencing court’s wide area of judgment and its advantages in assessing the offender, the offence, victims and surrounding circumstances. Dookee v Director of Public Prosecutions [2010] SCJ 71 was relied on for those principles. DPP v Sabapathee [1997] 1 WLR 483 concerned a conviction appeal and was not authority on how the sentencing power should be exercised.
3. DPP’s discretion. The fact that the DPP had not previously exercised the statutory power in comparable cases did not make the later appeal arbitrary or unlawful. The suggested “use it or lose it” principle was unsound. There was no suggestion of improper motive.
4. Delay and double jeopardy. A DPP appeal against sentence is exceptional and involves double jeopardy. It should be processed expeditiously. Delay may violate section 10(1) of the Constitution if sufficiently inordinate. The delay here was highly regrettable but not constitutionally decisive; it nevertheless had to be taken into account.
5. Constitutional proportionality and disposal. Under section 30 of the Dangerous Drugs Act 2000, read with section 11(1) of the Criminal Code and section 7 of the Constitution, three years was ordinarily the minimum custodial term where custody was necessary. The Supreme Court was entitled to find the original fine manifestly inadequate, but erred by failing to consider double jeopardy, delay and gross disproportionality. Custody remained justified, but requiring three years at that stage would be grossly disproportionate. Eighteen months was appropriate.

1. Privy Council. On appeal by special leave, the Board allowed the appeal and substituted 18 months’ imprisonment for the three-year sentence: [2014] UKPC 19.
2. Supreme Court of Mauritius. Allowed the DPP’s appeal against the Intermediate Court sentence, quashed the fine and substituted three years’ penal servitude.
3. Intermediate Court of Mauritius. Convicted the appellant following his guilty plea and imposed a fine of 150,000 rupees and costs.