HIGH Court Judge Jo-Ann Barlow on Tuesday dismissed a constitutional motion brought by Vinnette James and her nephew Dellon St. Hill, challenging as unconstitutional the imposition of the mandatory minimum sentencing provisions in the Narcotics Drugs and Psychotropic Substances Act, Chapter 10:10 and the Firearms Act, Chapter 16:05.
St. Hill had been found guilty of the offence of possession of narcotics for the purpose of trafficking on July 20, 2017, at the Vigilance Magistrate’s Court by Magistrate Peter Hugh. He had been in possession of 281 grams of cannabis. However, by fixed-date application dated September 15, 2017, James challenged the constitutionality of the imposition of the mandatory minimum sentencing provisions in the Narcotics Drugs and Psychotropic Substances Act, Chapter 10:10 and the Firearms Act, Chapter 16:05.

She claimed that the mandatory minimum sentencing provision in the Narcotics and Psychotropic Substances Act, Chapter 10:10 and the Firearms Act, Chapter 16:05 are contrary to Articles 8, 39, 40, 65, 122(A), 141 and 154(A) of the constitution.
According to James, who was represented by Attorney Eusi Anderson, the mandatory minimum sentencing in provisions in the Narcotic and Psychotropic Substances Act Chapter 10:10 and Firearms Act 16:05 are unconstitutional, null, void and of no legal effect, insofar as they seek to abrogate the doctrine of separation of powers by encroaching on the exclusive jurisdiction of the court to determine sentences.

She argued that the mandatory minimum sentence under the said legislation is grossly disproportionate, arbitrary and excessive. Moreover, James posited that the mandatory minimum sentence amounts to torture, cruel and inhumane punishment.
In response, the state, represented by Oneka Archer-Caulder, argued to the contrary. Archer-Caulder told the court that the cited Acts are constitutional and reminded the court that the power is and has always been vested in the legislature to make laws for the peace, order and good governance of Guyana.

The attorney said too that the mandatory minimum sentencing provision as contained in the Narcotics Drugs and Psychotropic Substances Act, Chapter 10:10 and Firearms Act, Chapter 16:05 are proportional and just, considering the nature and seriousness of the offence and the prevailing legal, social and economic climate.
Meanwhile, the court in making its decision observed that the principle of the separation of powers is not an overriding supra-constitutional principle, but a description of how the powers under a real constitution are divided.

The state contended that the mandatory minimum provisions did not infringe upon judicial discretion, but rather defined the parameters in which the judiciary is expected to exercise its discretion, so as to ensure that any penalty imposed is not arbitrary and/or excessive.
The court agreed that while the power is vested in the legislature to make laws to govern the prevailing social and economic ills plaguing a country, which the mandatory minimum sentencing provision sought to do, it yet in its wisdom included in the legislation section 73 which in itself mitigates the harshness of the mandatory minimum provision and allows the magistrate to impose a sentence of less than three years, while taking into account any special circumstances of the case.

The court observed with some consternation that while it was unfortunate that for too long the magistrates have thought themselves restricted to the two stated special circumstances within the legislation (young person and for possession of cannabis under five grams), there was nothing in the section which limited the magistrate’s discretion in applying special circumstances to both the offence and the offender and applying a lesser sentence than three years.

Justice Barlow in examining Section 73 of the legislation, noted that the only requirement was that the magistrate should state in writing the reason for giving a lesser sentence than the statute imposed. As such, the High Court Judge ruled in favour of the state and found that the imposition of penal provisions in Narcotic Drugs and Psychotropic Substances Act, Cap 10:10 were constitutional.