Page 31 - Magistrates Conference 2019

it unconstitutional for a court to impose a sentence which is grossly
disproportionate to what the offender deserves and therefore capable of overriding
a statute dictating a minimum sentence.

18. In Aubeeluck v The State of Mauritius [2010] UKPC 13, the principal question
raised was whether, and in what circumstances, a court is entitled to pass a lesser
sentence than the minimum sentence of three years provided in section 11 (1) of
the Criminal Code for the commission of an offence. Section 11 (1) of the Criminal
Code stated that the punishment of penal servitude is imposed for life or for a
minimum term of three years. The question was whether the minimum sentence
provisions should be dis-applied on the ground that they were wholly
disproportionate because not to dis- apply them would be to deprive the appellant

of his rights under section 7 of the Constitution. Section 7 (i) provides that no
person shall be subjected to torture or to inhuman or degrading punishment or
other such treatment. Section 2 provides that the Constitution is the Supreme law of
Mauritius and if any other law is inconsistent with this Constitution, that other law
shall, to the extent of the inconsistency, be void.

19. The appellant’s case was that the effect of section 7 of the Constitution is that a
statute which has the effect that the application of a minimum sentence would be
wholly disproportionate and as such, contrary to section 7 of the Constitution, in a
particular case, must be dis- applied. Further, the effect of the provisions of the
statute requiring the magistrate to sentence the appellant to a minimum term of
three years penal servitude is wholly disproportionate, that they should be dis-
applied and the sentence set aside. At paragraph 21, the Board stated: “A literal
reading of section 7 of the Constitution does not immediately suggest that this is the

correct approach to it. The prohibition against subjection “to torture or to inhuman
or degrading punishment or other such treatment” might be read to refer to
something much more severe than the three year penal servitude in the present
case. However, the DPP accepts, in their Lordships’ opinion correctly, that the effect
of section 7 is to wholly outlaw disproportionate penalties.

20. The Board concluded that a sentence of three years imprisonment would be wholly
disproportionate to the offences committed by the appellant. Although convicted as
a drug trafficker, he was dealing in a small way in small quantities of cannabis. He
was a person of good character and would not have now been charged as a
trafficker under the relevant law. The Board paid full regard to the fact that the