reintegration in the case of those who are drug abusers. In large part, these alternative approaches are lacking in the Commonwealth Caribbean. 4.9. The Guyanese law was recently highlighted when a young husband received a 3- year gaol sentence for having a mere 8 grams of cannabis in his possession, which caused an outcry: “. . . the Magistrate told them to be calm before explaining to them that the Laws of Guyana stipulate that any person found in possession of over five grams is liable to face a fine, together with the minimum of three years or the maximum five years imprisonment. She added “I gave him the least sentence which is three years. He could have been sentenced to between three and five years. . . I can’t do anything.”69 4.10. These are not isolated incidents. Such harsh and disproportionate sentences were reported to the Commission in its National Consultation in Guyana. The Commission heard of an eighty-something year old woman who had been jailed for one ‘joint’, which apparently she had taken to relieve pain.70 In 2017, a middle-aged women in Trinidad and Tobago was also jailed for taking small amounts of cannabis/ marijuana to relieve her pain and suffering. There have been similar incidents throughout the Caribbean. Courts have also imposed harsh concurrent sentences in convictions for cannabis/ marijuana, as seen in the recent case of R v Haywood, from Barbados.71 Indeed, it is believed that the ‘tipping point’ toward the 2015 law reform in Jamaica was the public’s condemnation of events whereby persons were identified as having spent several years in prison for cannabis/ marijuana and another was killed in prison after being incarcerated for possession of a ganja cigarette.72 4.11. Moreover, sentencing appears to be out of sync with social realities and the measure of the offence and are often inconsistent or even arbitrary. This may cause considerable confusion as courts seek to define their appropriate roles in this regard and obtain just outcomes. Importantly, in Trinidad and Tobago, the heavy, mandatory minimum penalties under section 5(5) of the Dangerous Drug Act, which imposed a mandatory minimum penalty of a fine of $100,000 and 25 years of imprisonment, with a further term of 15 years of imprisonment in the event of default of payment of the fine (a total of 40 years imprisonment) for trafficking was declared unconstitutional by the Court of Appeal in the case of Barry Francis, Roger Hinds v The State.73 The Court found that the restriction of its discretionary sentencing powers by the mandatory penalties was a violation of the separation of powers. It also spoke out against the oppressive, arbitrary nature of the legislative sentencing formula, deeming it cruel and inhumane punishment, disproportionate to the offences, saying: “. . . it imposes or authorises the imposition of a penalty which is arbitrary, capricious and oppressive. It is arbitrary because, in this case, there is no rational relation of the penalty to the actual offence committed. It is capricious because the judicial discretion to adapt the penalty to the nature of the crime is removed. It is oppressive because, in this case, the mandatory minimum, of itself, is excessive and wholly disproportionate to the crime committed. . . It breaches the right to the protection of the law in section 4(b) of the Constitution, in this case, by authorising the imposition of cruel and unusual treatment or punishment by permitting the imposition of a mandatory minimum penalty which is grossly disproportionate and inordinately excessive and which bears little or no relation to the crime committed. 4.12. The court reinstated that judicial discretion had to be read into the law. Notwithstanding this enlightened judgment and because the Court acknowledged Parliament’s intention to impose harsh penalties, sentences have often only been slightly less draconian. For example, 16 years imprisonment have been given for 4 kgs of marijuana and 20 years for 10.47 kgs74, while Barry Francis himself received 15 years imprisonment with hard labour for 1.6 kgs of cannabis. Sentences are also inconsistent, for ‘Court Erupts after Poultry Farmer gets 3 Years for 8 grams of ganja’, Kaiteur News, May 22, 2018, https://www.kaieteurnewsonline.com/2018/05/22/court-erupts-after-poultry-farmer-gets-3-years-for-8-grams-of-ganja/. See s.4 of the Act. 70 National Consultation, Guyana, November 6, 2017. 71 (2016) 88 WIR 45 72 Paul A Reid, ‘Mario Deane beaten, stabbed over use of bed, court told’, Jamaica Observer Newspaper, August 14, 2014, http://www.jamaicaobserver.com/news/Mario-Dean-beaten--stabbed-over-use-of-bed--court-told_17351341 73 Criminal Appeal Nos 5 &6 of 2010, decided Jan 31, 2014. 74 Ramesar v The State, Cr App No 8 of 2014; Lancaster v The State, Crim App No 4 of 2011 respectively. 69
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