Bill for lighter ganja penal­ties for House by end of June, MP says

-High Court judg­ment points to scope for lower sen­tences

Stabroek News Sunday - - FRONT PAGE - By Zoisa Fraser and Femi Har­ris

De­spite an ap­par­ent di­vide be­tween APNU and the AFC on re­form­ing the sen­tenc­ing for pos­ses­sion of small amounts of cannabis, gov­ern­ment Mem­ber of Par­lia­ment Michael Car­ring­ton says that a re­worked bill will come be­fore the Na­tional As­sem­bly by next month end.

A Nar­cotic Drugs and Psy­chotropic Sub­stances (Con­trol) (Amend­ment) Bill, in­tended to ad­dress the sen­tenc­ing pro­vi­sions of the law, was tabled by Car­ring­ton in De­cem­ber, 2015, and has been left to lan­guish in leg­isla­tive pur­ga­tory since that time.

How­ever, Car­ring­ton told Sun­day Stabroek that there should be move­ment by the end of next month.

“The party [AFC] has de­cided that we are gonna push it [the bill]. It should come up very soon by… next month… I will have at least the full sup­port and the AFC and some mem­bers of the op­po­si­tion may sup­port it be­cause it may go to a con­science vote,” he said in an in­ter­view last week.

Al­though Car­ring­ton, an AFC mem­ber, sug­gested that it was the APNU that de­layed a de­bate of the bill after it was tabled, State Min­is­ter and APNU Chair­man Joseph Har­mon de­clined to re­spond to the as­ser­tion. He said that the is­sue is not about APNU and AFC, but about a mem­ber of the gov­ern­ment’s side who has filed a bill which is “be­ing dealt with by the gov­ern­ment side. That’s the po­si­tion.”

His com­ments came in wake of the wide­spread out­rage that was trig­gered by the sen­tenc­ing of Carl Man­gal to three years in jail for the pos­ses­sion of 8.4 grammes of cannabis for traf­fick­ing.

The sen­tence has since been ap­pealed.

The sen­tence prompted re­newed calls for the re­form of the sen­tences im­posed, with many ar­gu­ing that it was too harsh given the small quan­tity of the pro­hib­ited drug with which the fa­ther of three had been found.

Har­mon has said the gov­ern­ment be­lieves the cur­rent laws do not al­low mag­is­trates the dis­cre­tion to im­pose sen­tences below the manda­tory min­i­mum for pos­ses­sion of small amounts of mar­i­juana, al­though a recent High Court judg­ment sug­gests oth­er­wise.

Har­mon stressed last Thurs­day that the Nar­cotic Drugs and Psy­chotropic Sub­stances (Con­trol) Act, which was signed into law by the late Pres­i­dent Des­mond Hoyte in 1988, does not pro­vide mag­is­trates with dis­cre­tion when they are deal­ing with amounts above a cer­tain level. He fur­ther noted that the mag­is­trates have to utilise what is out­lined in the law and opined that if there is need for changes to the ex­ist­ing leg­is­la­tion, then that is the “re­spon­si­bil­ity of the leg­isla­tive branch.”

In­deed, in hand­ing down the three-year sen­tence to Man­gal, Prin­ci­pal Mag­is­trate Judy Latch­man told his cry­ing rel­a­tives that she was act­ing ac­cord­ing to the law. How­ever, a rul­ing by Jus­tice Jo-Ann Bar­low in March on the con­sti­tu­tion­al­ity of the manda­tory min­i­mum three-year sen­tence for ganja traf­fick­ing, had af­firmed that mag­is­trates do have the dis­cre­tion to im­pose lighter sen­tences where spe­cial cir­cum­stances may war­rant.

Ju­di­cial dis­cre­tion

In a rul­ing on March 28th, 2018, Jus­tice Bar­low found that the lower courts do have dis­cre­tion to go below the min­i­mum sen­tence set by statute, given the par­tic­u­lar cir­cum­stances of the case be­fore it. Ref­er­enc­ing leg­is­la­tion and case law, the judge high­lighted that courts can im­pose sen­tences, the length of which re­flects the judge’s own as­sess­ment of the grav­ity of the con­duct in the par­tic­u­lar cir­cum­stance of the case be­fore it.

Her rul­ing was based on an ap­pli­ca­tion brought by Vin­nette James, In­drani Daya­narain and Karen Craw­ford, who all chal­lenged the pe­nal pro­vi­sions of the Nar­cotics Drugs and Psy­chotropic Sub­stances Con­trol Act.

Among other things, the ap­pli­cants sought to chal­lenge the con­sti­tu­tion­al­ity of the im­po­si­tion of the manda­tory min­i­mum sen­tences pre­scribed by the Act.

Their con­tention had been that the manda­tory min­i­mum sen­tenc­ing

RRpro­vi­sions con­tained in the Acts were null, void and of no le­gal ef­fect in­so­far as they ren­dered nu­ga­tory, the doc­trine of sep­a­ra­tion of pow­ers.

The ap­pli­ca­tions by James, Daya­narain and Craw­ford were made on be­half of Del­lon St Hill, Parsram San­charra and Khalil Mustafa, re­spec­tively, who had all been con­victed and sen­tenced un­der the Act.

Their re­spec­tive at­tor­neys had ar­gued that the leg­is­la­ture by fix­ing a manda­tory min­i­mum sen­tence had blurred the lines be­tween the leg­isla­tive and the ju­di­cial arms of gov­ern­ment.

By stip­u­lat­ing an up­per and lower ceil­ing for sen­tenc­ing of­fend­ers un­der the rel­e­vant pe­nal sec­tions of the Acts, they ar­gued that the leg­is­la­ture was es­sen­tially dic­tat­ing to ju­di­cial of­fi­cers what course of ac­tion they must take when sen­tenc­ing an of­fender.

Jus­tice Bar­low, how­ever, found that the mere set­ting of pa­ram­e­ters within which a court ought to act nei­ther blurs the lines nor cre­ates an ob­fus­ca­tion of the doc­trine of Sep­a­ra­tion of Pow­ers.

One of the ar­gu­ments ad­vanced by the ap­pli­cants had been that by fix­ing a manda­tory min­i­mum sen­tence, the Leg­is­la­ture es­sen­tially re­moved from the sen­tenc­ing court that dis­cre­tion which it must pos­sess, thereby ren­der­ing the pro­vi­sions un­con­sti­tu­tional.

The court, how­ever, found that this was not an ac­cu­rate as­sess­ment of the na­ture of a manda­tory min­i­mum sen­tence and that in hold­ing that view, the ap­pli­cants are mis­taken. The judge pointed out that a court’s task is to ex­am­ine the le­gal frame­work to be sure that while there ex­ists an in­ter­de­pen­dence, there is no cross­ing of the line and sen­tenc­ing re­mains in the hands of the ju­di­cial arm of the state.

In her rul­ing, Jus­tice Bar­low drew the dis­tinc­tion be­tween the pre­scrip­tion of fixed penalty and the se­lec­tion of a penalty. She cited the rul­ing in Deaton v AG and Rev­enue Comrs [1963] IR 170, which found that “The pre­scrip­tion of a fixed penalty is the state­ment of a gen­eral rule, which is one of the char­ac­ter­is­tics of leg­is­la­tion; this is wholly dif­fer­ent from the se­lec­tion of a penalty to be im­posed in a par­tic­u­lar case...The Leg­is­la­ture does not pre­scribe the penalty to be im­posed in an in­di­vid­ual ci­ti­zen’s case; it states the gen­eral rule, and the ap­pli­ca­tion of that rule is for the courts…the se­lec­tion of pun­ish­ment is an in­te­gral part of the ad­min­is­tra­tion of jus­tice of and, as such, can­not be com­mit­ted to hands of the Ex­ec­u­tive.”

As a re­sult, Jus­tice Bar­low con­tended that there are suf­fi­cient safe­guards to keep the pow­ers of sen­tenc­ing ex­clu­sively within the purview of the Ju­di­ciary.

Another ar­gu­ment raised by the ap­pli­cants is that the manda­tory min­i­mum sen­tence pre­scribed by the Leg­is­la­ture is grossly dis­pro­por­tion­ate, ar­bi­trary and ex­ces­sive and there­fore amounted to cruel and in­hu­man pun­ish­ment.

In ad­dress­ing the is­sue, Jus­tice Bar­low be­gan with the prin­ci­ple that “the penalty must fit the crime.” It is against this back­drop that she went on to ex­plain that a penalty which is out of pro­por­tion with the of­fence is li­able to be struck down on grounds that it of­fends not only gen­eral sen­tenc­ing prin­ci­ples but also of­fends the fun­da­men­tal rights of ci­ti­zens and is there­fore un­con­sti­tu­tional.

Re­ly­ing on the case of v Lloyd [2016] SCR 130, Jus­tice Bar­low noted that it is not ev­ery sen­tence, even a manda­tory min­i­mum sen­tence, that ap­pears harsh or ex­ces­sive that amounts to cruel, in­hu­man or de­grad­ing pun­ish­ment and is there­fore un­con­sti­tu­tional.

To be so con­sid­ered, she ex­pounded, a sen­tence must be more than merely ex­ces­sive. Ac­cord­ing to v Lloyd, “it must be so ex­ces­sive as to out­rage stan­dards of de­cency and be ab­hor­rent and in­tol­er­a­ble to so­ci­ety.”

She noted, too, that the pres­ence of ap­pro­pri­ate checks and bal­ances seeks to en­sure that no of­fender would be sub­ject to the manda­tory min­i­mum sen­tence if the cir­cum­stances of his case war­rant a lesser sen­tence.

Jus­tice Bar­low said that ex­am­ples of leg­isla­tive preser­va­tion of the ju­di­cial dis­cre­tion in the face of manda­tory min­i­mum sen­tences can be found in the Pre­cious Stones Trade Act 1982 of Zim­babwe, New Zealand Sen­tenc­ing Act 2002 and the Mis­use of Drugs Act 1990 as amended by the Jus­tice Act 26/1994 of Belize. These Acts, the judge noted, all pro­vide that a court may im­pose a sen­tence lower than the manda­tory min­i­mum sen­tence if there are rea­sons for do­ing so, which must be recorded.

In this re­gard, she noted that some pieces of leg­is­la­tion speak of “spe­cial rea­sons” while others sim­ply speak of “rea­sons.” The Nar­cotics Act, she said, con­tains sim­i­lar pro­vi­sions. The court iden­ti­fied two ex­am­ples of spe­cial rea­sons con­tained in Sec­tion 73 (a) and (b) of the Nar­cotics Act. The first in­stance refers to the fact that the per­son was a child or young per­son at the date of com­mis­sion of the of­fence. In the sec­ond in­stance, it speaks to a per­son con­victed for an of­fence of pos­ses­sion, where the sub­stance is cannabis, the amount does not ex­ceed 5 grammes, and the court is sat­is­fied that it was for the of­fender’s per­sonal con­sump­tion.

Jus­tice Bar­low em­pha­sised that these are only two ex­am­ples and in no way rep­re­sent an ex­hausted list of the var­ied spe­cial cir­cum­stances with which a court may be con­fronted and which may war­rant the im­po­si­tion of a sen­tence lower that the manda­tory min­i­mum stip­u­lated by the leg­is­la­tion.

She fur­ther stated that in ar­riv­ing at an ap­pro­pri­ate sen­tence un­der the Nar­cotics Act, a court in as­sess­ing the cir­cum­stances to de­ter­mine what are spe­cial rea­sons, must bear in mind that nar­cotics of­fences are se­ri­ous of­fences, and that the Leg­is­la­ture by fix­ing manda­tory min­i­mum sen­tences was say­ing that they must be treated with se­ri­ous­ness given the ef­fect that they have on so­ci­ety.

“In each case it is for the sen­tenc­ing court to make a value judg­ment of the in­for­ma­tion that is be­fore that court,” the judge said.

Jus­tice Bar­low con­cluded that Sec­tion 73 of the Nar­cotics Act hav­ing ad­dressed spe­cial rea­sons pre­serves that in­her­ent ju­ris­dic­tion that ev­ery ju­di­cial of­fi­cer must pos­sess at the time of sen­tenc­ing an ac­cused per­son.

Jus­tice Bar­low ques­tioned whether the time has come for there to be a com­pre­hen­sive re­view of the leg­is­la­tion. Such re­view, she said, would in­clude ma­ture de­lib­er­a­tion on whether the manda­tory min­i­mum sen­tence is still nec­es­sary and might also ad­dress whether the present sen­tenc­ing regime which mainly con­tem­plates cus­to­dial sen­tences is still nec­es­sary.

Fine tun­ing

Car­ring­ton told Sun­day Stabroek that he will be do­ing some fine tun­ing to the ex­ist­ing ver­sion of the bill, after which it will en­gage the at­ten­tion of the House. Stress­ing that he is not seek­ing to le­galise mar­i­juana but rather to re­move some of the jail sen­tences for pos­ses­sion of small amounts, Car­ring­ton sin­gled out the ab­sence of fund­ing for re­hab as one of the things he has an is­sue with. The Act pro­vides for an ad­vi­sory coun­cil and a re­ha­bil­i­ta­tion fund but none of these were ever put in place.

Fol­low­ing the sen­tenc­ing of the farmer, the AFC re­newed its call for the re­moval of pro­vi­sions of the law that mete out heavy cus­to­dial sen­tences for pos­ses­sion of small quan­ti­ties of the drug.

Op­po­si­tion Leader Bhar­rat Jagdeo said last Thurs­day that he per­son­ally sup­ports the de­crim­i­nal­i­sa­tion of small amounts of mar­i­juana and mem­bers of the PPP/C would be al­lowed to vote ac­cord­ing to their con­science if it is ever put to a vote in the Na­tional As­sem­bly.

At the same time, he stressed that he was not in favour of peo­ple be­ing caught with small amounts of mar­i­juana go­ing scot-free. “Let us find another set of sen­tenc­ing. Sen­tence them to com­mu­nity work – clean up a school com­pound – to re­ha­bil­i­ta­tion,” he said.

Jagdeo, in a pre­vi­ous in­ter­view with Sun­day Stabroek, said that the AFC was be­ing “purely op­por­tunis­tic.” Not­ing that the PPP/C had ad­dressed the is­sue in its 2015 cam­paign man­i­festo be­cause it was of con­cern then, Jagdeo stressed that “it is an in­jus­tice to have peo­ple locked away for small amounts and peo­ple who com­mit more se­ri­ous crimes don’t even get jail time.”

At a press con­fer­ence last Fri­day, AFC Chair­man and Min­is­ter of Pub­lic Se­cu­rity, Khem­raj Ram­jat­tan re­ferred to Jagdeo’s com­ments as “fla­grant op­por­tunism.”

Both he and Car­ring­ton drew at­ten­tion to the fact that Jagdeo served as pres­i­dent for 12 years with­out ad­dress­ing the is­sue.

“After be­ing pres­i­dent for 12 years and not do­ing some­thing …all of a sud­den he wants to jump to front,” Car­ring­ton said, while Ram­jat­tan added that it was un­seemly that Jagdeo was “jump­ing as if he is the pro­moter of this bill and when he was in gov­ern­ment he did noth­ing.”

Backpedaled

Car­ring­ton, Jagdeo and the Guyana Rasta­far­ian Coun­cil all ex­pressed dis­agree­ment with At­tor­ney Gen­eral Basil Wil­liams’s view that there should be a pub­lic vote.

Har­mon told the me­dia that the is­sue will re­quire a large con­sul­ta­tion of the pop­u­la­tion and once that is done the gov­ern­ment will take a po­si­tion on the mat­ter.

When asked about this, Car­ring­ton made it clear to Sun­day Stabroek that he does not sup­port such a move. “It is very silly…the peo­ple who don’t smoke will vote against it and the peo­ple who do want to smoke…they will vote for it,” he said while not­ing that a 90% vote against it would sup­press the re­main­ing 10%. “I don’t think you should go in that di­rec­tion at all,” he said.

The Guyana Rasta­far­ian Coun­cil ex­pressed a sim­i­lar view.

“Per­son­ally I don’t think we need a ref­er­en­dum on our way of life. The herb is a part of our way of life,” mem­ber Ras Leon Saul said.

He added that he is over­whelmed with dis­ap­point­ment as he was per­son­ally as­sured by APNU and AFC prior to the 2015 elec­tions that the ex­ist­ing leg­is­la­tion would be re­viewed. He said that Rasta­far­ian com­mu­nity gave its full sup­port to the gov­ern­ment and par­tic­i­pated fully in the elec­tions process “based on the as­sur­ance they had given.”

He said that three years later the coali­tion party has backpedaled on the pledge given. “They have re­neged on their word and it wor­ries me per­son­ally,” he said be­fore re­call­ing that dur­ing a meet­ing with Wil­liams in Jan­uary, 2016, as­sur­ances were again given and the coun­cil sub­mit­ted a doc­u­ment that he needed. “Now to hear him speak­ing the way he is speak­ing as if he is not too sure of the whole is­sue, I think that he is be­ing disin­gen­u­ous,” Saul said.

“I think they will quiver in their boots when they un­der­stand we have the po­ten­tial to be­come a bal­ance of power …in the next elec­tions… It takes 5,000 votes for one seat and I am sure right now we have more than 5,000 votes in the Rasta­far­ian com­mu­nity and the ganja us­ing com­mu­nity and that is our lever­age re­ally,” he stressed.

Coun­cil Pres­i­dent Ras Simeon called the ex­ist­ing leg­is­la­tion a “dra­co­nian law,” which came into be­ing un­der the for­mer PNC ad­min­is­tra­tion. The re­named PNCR is now APNU’s largest con­stituent.

“A gov­ern­ment can­not deny a peo­ple their right to prac­tice their cul­ture. It is their con­sti­tu­tional and hu­man right…Gov­ern­ment should re­think the is­sue and make a de­ci­sion in keep­ing with peo­ple[s] con­sti­tu­tional and hu­man rights,” he stressed.

Carl Man­gal

Michael Car­ring­ton

Jo-Ann Bar­low

Sun May 27, 2018 15:00 - 16:30hrs Mon May 28, 2018 15:45 - 17:15hrs The open­ing lasts for 1 1/2 hours

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