Section 189: Inhuman treatment – Proportionality – Minimum penalty—The first

189. Inhuman treatment – Proportionality – Minimum penalty—The first appellant was convicted and sentenced to 45 years’ penal servitude for murder (by virtue of section 222 (1) of the Criminal Code); the other appellants were convicted and sentenced to serve a term of 45 years’ penal servitude for diverse drug dealing offences qua trafficker (by virtue of section 41 (3) of the Dangerous Drugs Act 2000). All seven appellants challenged the constitutionality of the mandatory sentence imposed by the trial Court, and in particular argued that it: (i) was in breach of the principle of separation of powers, and (ii) amounted to inhuman or degrading punishment or treatment in violation of section 7 of the Constitution. [Issue 1] CON – 216 Revised Laws of Mauritius HELD: (i) a mandatory sentence does not per se and necessarily infringe the principle of separation of powers; (ii) the issue of mandatory sentences in Mauritius raises the question of proportionality rather than one of separation of powers; (iii) a law which denies an accused party the opportunity to seek to avoid the imposition of a substantial term of imprisonment which he may not deserve, would be incompatible with the concept of a fair hearing enshrined in section 10 of the Constitution. A substantial sentence of penal servitude cannot be imposed without giving the accused an adequate opportunity to show why such sentence should not be mitigated in the light of the detailed facts and circumstances surrounding the commission of the particular offence or after taking into consideration the personal history and circumstances of the offender or where the imposition of the sentence might be wholly disproportionate to the accused’s degree of criminal culpability; (iv) section 222 (1) of the Criminal Code and section 41 (3) of the Dangerous Drugs Act 2000 (as they read prior to the amendment effected by Act No. 6 of 2007) contravened section 7 (1) of the Constitution in as much as the indiscriminate mandatory imposition of a term of 45 years’ penal servitude in all cases contravened the principle of proportionality and amounted to “inhuman or degrading punishment or other such treatment” contrary to section 7 (1) of the Constitution; (v) the relevant sections should be read down in such a way that, upon conviction, an offender would be liable to a prison sentence in the discretion of the Court but which would carry a maximum of 45 years; (vi) the appeal was allowed in so far as the imposition of the mandatory prison sentence of 45 years was concerned. In lieu of the mandatory sentence the trial Court should have discretion to pass a maximum sentence of 45 years’ penal servitude. Philibert v State (2007).