Lucas v Moralez
| Jurisdiction | Belize |
| Judge | Conteh, C.J. |
| Judgment Date | 17 April 2000 |
| Court | High Court (Belize) |
| Docket Number | 350 of 1999 |
| Date | 17 April 2000 |
High Court
Conteh, J.
350 of 1999
Mr. Kirk Anderson for the appellant.
Mr. Linsbert Willis, Crown counsel, for the respondent.
Practice and procedure - Appeal against conviction and sentence — Drug trafficking — Three years imprisonment — Fine of $10,000 or three years imprisonment in default with sentences to run consecutively — Whether the sentence was excessive — Whether the magistrate erred in making the default term of imprisonment consecutive on the mandatory three year term — Section 17 of the Misuse of Drugs Act No. 22 of 1990 — Finding that under section 17 of the Act the twin mandatory penalties of imprisonment and fine applied on every conviction for drug trafficking — Finding that there was no concurrent or consecutive custodial punishment under the law for the offence of drug tracking and so the magistrate was wrong in law in imposing the sentence of three years imprisonment on default of paying the $10,000 fine — Sentence varied to three years imprisonment in addition to a fine of $10,000.
The appellant was convicted in the Corozal magistrate court on 20th April 1999 for the offence of Drug Trafficking, contrary to section 7(1), of section 17(2) and section 7(4) read along with section 17(1) of the Misuse of Drugs Act No. 22 of 1990 as amended by Criminal Justice Act No. 26 of 1992 and Act No. 6 of 1994.
The appellant, after the facts had been presented to the court by the prosecutor, pleaded guilty and said in mitigation “I have nothing to say, only that I was broke”. The appellant had no previous conviction. The trial magistrate then sentenced him to three years imprisonment plus a fine of $10,000 and $5 cost. The magistrate then ordered that the appellant should “pay now” (presumably both the fine and the cost) or in default three years wit the sentences to run consecutively.
So in effect, the appellant was sentenced to three years imprisonment for drug trafficking with a fine of $10,000 with $5 cost. He was also required by the order of the magistrate to pay peremptorily or to serve another three years imprisonment in default and the term to run consecutively after the original three years imprisonment. This would make therefore a total of six years imprisonment if the appellant failed to pay the fine immediately as ordered by the court. Against this conviction and sentence the appellant has now appealed.
Let me say from the outset that the appeal against conviction cannot now be challenged and in fact, could not have been allowed. It should be remembered that the appellate jurisdiction of the Supreme Court is conferred by statute. Section 23 of the Supreme Court of Judicature Act, Chapter 82 provides that I “Th(is) court shall have and exercise, in accordance with Part Vlll of this Act, or any other Act and of any rules of court, appellate jurisdiction in all cases determined in all inferior courts in respect of any misdirections or misrulings of the said courts.”
Now Part Vll of the Supreme Court of Judicature Act, Chapter 82 deals in extenso with the appellate jurisdiction of the Supreme Court under the caption INFERIOR COURTS (APPEALS) and section 106 states that:
“Pursuant to section 23 (already mentioned supra) any person dissatisfied with any decision of an inferior court may appeal to the court subject to the conditions and regulations prescribed by this Act and by any rules of court.” There then follows a proviso with five paragraphs (a-e) expressly precluding appeals to this court from inferior courts in the several case stated in paragraphs a — e. The proviso stipulates expressly in paragraph (a) that “no appeal shall lie to the court,
“a) Where a party in the inferior court confessed or admitted the truth of the accusation or correctness of the claim as the case may be, brought against him (emphasis added)
“b) …
c) …
d) …
e) …”
From the records in this case and even from the learned attorney's able arguments before this court, the appellant's confession or admission of the truth of the accusation of the offence of drug trafficking against him was not in any doubt. This may perhaps not be surprising as could be gathered from the facts of this case as presented before the trial court.
Police Constable 669 Morales who presented the facts to the magistrate court said that he was with a party of other police officers conducting a police check point on 20th April 1999, when at about 12:55 p.m. a green Ford taxi car with License Plate CZL-D-1455 was intercepted at the entrance of Louisville Village in the Corozal District. In this vehicle was the appellant who was sitting alone in the rear seat with a crocus sack which upon being opened, was found to contain two parcels of what subsequently turned out to be cannabis. The appellant was taken to the Corozal Police Station where the two parcels were weighed in his presence. Later that same day the appellant was arraigned before the magistrate court for Corozal and after the facts had been presented': to the court he thereupon pleaded guilty and said, presumably in mitigation: “I have nothing to say only that I was broke.”
On appeal (although as I had mentioned earlier the appeal at least against conviction could not have been allowed in view of the proviso to section 106 of Chapter 82, The Supreme Court of Judicature Act learned counsel for the appellant took issue with the difference in the weight of the cannabis (the drug in issue here) as given by the police officer in presenting the facts of the case and as stated in the complaint: one is stated as 13.5 (in the facts presented) and the other as 13.95 (on the complaint). This variation it was valiantly contended for the appellant, was fatal and that the magistrate therefore erred in law in accepting the appellant's guilty plea to the offence of drug trafficking.
But I don't think this is right, for even at the trial if this variation was taken as an issue (which it was not given the guilty plea) the trial magistrate had the power under section 127 of the Summary Jurisdiction (Procedure) Act Chapter 100 to have rectified it if it would have deceived or misled the appellant at the trial. It again should be remembered that even at the trial, no objection would have been allowed or be taken by reason of any alleged variance between the complaint as laid against the appellant and the evidence adduced in support of it -section 127(2) of Chapter 100 These provisions are also reflected in section 116 of Chapter 82 and to the same effect, when this Court is hearing an appeal from an inferior court.
The alleged variation is not in any event material, the appellant was not deceived or misled in any way. Perhaps it might have been material if the weight had been below the threshold specified in the scales stated in the proviso to section 17(1) of the Misuse of Drugs Act 1990 as amended by the Criminal Justice Act — No. 26 of 1994. This gives a discretion to the trial court, on conviction, for reasons to be stated in writing, to be able to refrain from imposing a mandatory custodial sentence, if the weight of the controlled drug in which the offence is committed, is less than five kilograms of cannabis in the case of cannabis; different weights are stated for different controlled drugs. In other words, weight should have been relevant in terms of the sentence as it would have given the magistrate some discretion if it had been less then five kilograms of cannabis.
In any event, as I've said, the alleged variance was one which the magistrate had power to amend. And I don't think anyhow that the alleged variance is one which I'm persuaded warrants me to exercise the discretionary powers granted this Court under section 116 of Chapter 82 I have however taken the pains to address this ground, which was Ground 2 because it bears, as will become clear later, some relationship to the only proper ground which could, in law, have been argued on behalf of the appellant the light of the circumstances of this case, namely, appeal against sentence. In sentencing for drug trafficking offences, the weight of the drug in question may have some bearing on the sentence the court could impose. I shall come to this later. The weight of the drug found with the appellant in this instance, however, was not in issue in so far as his sentencing was concerned.
However, as I have already stated, the appeal by the appellant against his conviction is incompetent in the face of the express stipulation in section 106 paragraph (a) of The Supreme Court of Judicature Act and I shall therefore refrain from addressing the other issues so plausibly argued on behalf of the appellant by his learned Attorney against his conviction. I am satisfied moreover that from a careful perusal of the records of the trial court, these issues did not arise in the course of the appellant's trial thereat.
Therefore, the only viable ground of appeal is that contained in Ground 5, complaining against the sentence handed down by the trial magistrate. This ground states: “That the learned magistrate erred in law and in so doing, imposed an excessive sentence of imprisonment upon the appellant in so far as the learned magistrate had imposed a sentence of imprisonment consecutive to the imprisonment imposed upon the appellant in default of his payment of the fine as prescribed by the court.”
The gravamen of this complaint is that the appellant's sentence was excessive given the fact that he had been handed a custodial sentence of three years plus a fine of $10,000 for the offence of drug trafficking which he had admitted and $5 cost. And, this is the rub of the complaint, in the appellant's counsel's contention: for the court to order the appellant to pay up immediately (“pay now” in the words of the trial magistrate) or suffer an additional three years in jail and this...
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