THE Criminal Bar Association (CBA) has argued, through its president, Pamela Elder SC, that the sentence prescribed by Parliament for persons convicted of drug trafficking is cruel, unusual and arbitrary punishment.
Elder made the submission during a special sitting on Tuesday of the Court of Appeal in which five judges, as opposed to the usual three, sat on the appeal of convicted drug traffickers Barry Francis and Roger Hinds.
Francis and Hinds were convicted in 2010 of having 1.16 kilogrammes of marijuana in their possession for the purpose of trafficking and were sentenced under Section 5 (5) of the Dangerous Drugs Act (as amended in 2000).
The Act states: "A person who commits the offence of trafficking in a dangerous drug, or of being in possession of a dangerous drug for the purpose of trafficking, is liable upon conviction on indictment to a fine of $100,000 or, where there is evidence of the street value of the dangerous drug, three times the street value of the dangerous drug, whichever is greater, and to imprisonment for a term of 25 years to life."
Francis and Hinds are being represented by attorneys Jagdeo Singh and Amerelle Francis respectively. However, the Criminal Bar Association was granted leave by the Court of Appeal to intervene in the matter.
Since the filing of the appeal, several other persons found guilty of drug trafficking in the High Court have had their sentences put on hold pending the outcome of the matter.
Elder told Justices of Appeal, Ivor Archie (Chief Justice), Paula Mae Weekes, Peter Jamadar, Alice Yorke-Soo Hon and Nolan Bereaux, that the Act does not make a distinction between a person who has a dangerous drug for the purpose of trafficking and a person who is actually trafficking. She said the discretion of the sentencing judge, in taking into account the circumstances of the particular offender, has been removed.
"The punishment is the same for both offences."
Elder said the provision of a term of imprisonment and a fine, which in default of payment will result in further imprisonment for 15 years, is cruel, unjust and arbitrary.
"We are looking at cruelty here in a civilised society."
Jamadar said Trinidad and Tobago is not the only country to have effected such harsh legislation. He said it is being done all throughout the Commonwealth.
"If Trinidad and Tobago decides that drugs, and all that comes with it, is the primary cause for spiralling crime, why not 25 years?" Jamadar asked.
"Is there something objectionable about 25 years? Is it the numbers compounded by the removal of the discretion?"
Elder responded in the affirmative.
Jamadar asked: "So if the mandatory minimum sentence was six months, would it have been objectionable?"
Elder said one would have to look at the number of years set as the mandatory minimum sentence in determining whether it is justifiable to the Trinidad and Tobago society.
Archie said it would be difficult for the court to say that the imposition of a mandatory minimum sentence, which Parliament is empowered to prescribe, is unjustifiable.
"What are we to do with the provision? Strike it down in its entirety?"
Elder said the Criminal Bar Association is of the view that a mandatory minimum sentence of 25 years is not reasonably justifiable. She said Section 5 (5) of the Act should be declared null and void.
Senior Counsel Dana Seetahal who, along with attorney George Busby is representing the State, said the State also has some concern in relation to a fine and imprisonment being imposed. Seetahal said she is of the view that the use of the word "liable" in the Act suggests a person convicted "can" be fined up to $100,000.
She agreed with the Bar Association that it is unreasonable for someone to be sentenced to serve 25 years in prison and pay a fine of $100,000 and, in default of payment, serve an additional 15 years in prison.
Singh submitted that the court should find that the sentence of "25 years to life" is not a mandatory minimum sentence but an outer range depending on the criminal history and the personal circumstances of the convicted person.
The court has reserved its ruling for a date to be fixed.