Judicial discretion in sentencing

Caroline Auma Majabu v R

The Court of Appeal at Mombasa

Criminal Appeal No. 65 of 2014

H M Okwengu, Asike-Makhandia, F Sichale, JJA

October 9, 2014

Brief facts

The appellant was tried and convicted for the offence of trafficking in narcotics drugs contrary to section 4(a) of Narcotic Drug and Psychotropic Substance Control Act No. 4 of 1994.

She was sentenced to pay a fine of Kshs.1,000,000/- in addition to serving life imprisonment. Being dissatisfied, she appealed to the High Court against her conviction and sentence.  The High Court (Omondi, J.) dismissed the appeal in its entirety.  Not deterred, the appellant lodged the appeal before the court of appeal.

The appellant was aggrieved that she was convicted of a charge which was incurably defective; that the evidence did not support the charge; that her defence was not considered; and that the sentence imposed upon her was manifestly excessive.

She maintained that the two lower courts failed to apply section 107 and 108 of the Evidence Act, as it failed to find that the prosecution did not discharge its burden of proof.

Issues

1. What is the interpretation of section 4(a) of The Narcotic Drugs and Psychotropic Substance Control Act?

2. Whether section 4(a) of The Narcotic Drugs and Psychotropic Substance Control Act provides judicial officers with discretion in meting the sentence.

3.  Whether the meaning of words “liable” and “shall” within the context of section 4(a) of The Narcotic Drugs and Psychotropic Substance Control Act were mandatory.

Criminal Practice and Procedure - Sentencing- mandatory sentencing - nature of mandatory sentencing  - whether mandatory sentences stifle power of court’s judicial discretion powers-unclear sentencing provisions should be interpreted not to stifle court’s judicial discretion powers

The Narcotic Drugs and Psychotropic Substance Control Act, Section 4 (a)

Any person who traffics in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable—

 (a)     in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life

Held

1. The court’s jurisdiction in hearing a second appeal was limited to considering matters of law only. Court had an obligation to pay homage to the findings of fact by the lower courts and only interfered if such finding of fact was based on no evidence or a misapprehension of the evidence or where the Judge was shown to demonstrably have acted on wrong principles in reaching those finding.

2. Severity of a sentence was a matter of fact which could not be considered on second appeal unless an issue of law arises therefrom.

3. the use of the word “liable” in section 4 (a) of Narcotic Drugs and Psychotropic Substance Control Act merely gave a likely maximum sentence thereby allowing a measure of discretion to the trial court in imposing sentence with the maximum limit being indicated.

4.  It had to be noted that sentencing was an exercise of judicial discretion, and therefore provisions which provided for mandatory sentence compromised that discretion, and were the exception rather than the rule.  Thus, where applicable the mandatory sentence had to be expressed in clear and unambiguous terms. 

5. In the case of section 4(a) of the Narcotic Drugs and Psychotropic Substance Control Act, the provisions did not contain such clear and unambiguous language with regard to mandatory sentence. That left room for judicial discretion and the court would be reluctant to adopt an interpretation that would defeat or muzzle the exercise of such judicial discretion. 

6.  Both the lower courts misdirected themselves in holding that the sentence was mandatory, and failing to exercise their discretion by addressing the appellant’s mitigating circumstances.  An error of law was thereby committed which justified the intervention of the instant Court.

7.  The appellant was sentenced  to pay a fine of Kshs.1,000,000/- in addition to a life sentence for possession of seven sachets of heroin worth Kshs.700/-.   Court was somewhat disturbed by the apparent disparity in the sentencing given the minimal amount of the narcotic drugs which the appellant was found in possession of. Given the gravity of the sentence provided for trafficking, the sentence for trafficking was a maximum sentence intended for drug barons and serious drug dealers dealing with drug worth thousands if not millions of shillings, and not small timers such as the appellant found in possession of a few sachets of heroin worth a few shillings. 

8.  While the court did not encourage small time trafficking in drugs, sentences imposed in such cases had to be realistic and had to aim at rehabilitation rather than incarcerating and completely destroying the offenders.

9. Having taken into account her mitigating factors and also taken into account that she had been serving the sentence for the last four years, the only remedy available was an order for a conditional discharge under section 35(1) of the Penal Code.  

Appeal against conviction dismissed

Appeal against sentence allowed

Sentence of life imprisonment and the fine of Kshs.1,000,000/ set aside  and substitute thereof an order for the appellant to be discharged forthwith under section 35(1) of the Penal Code on condition that she does not commit any offence for the next one year.