Page 32 - Magistrates Conference 2019

legislature regarded trafficking in drugs as a serious matter but concluded that to
disregard all mitigation, including that these were the first offences by the
appellant, to impose a minimum sentence of three years penal servitude, would be
grossly disproportionate.

21. In Pandoo v The State [2006] MR 323, the Supreme Court of Mauritius held that
Section 7 of the Constitution incorporates the principle that the sentence must be
proportionate to the seriousness of the offence. Pandoo had pled guilty to a charge
of wilfully and unlawfully failing to pay tax. The minimum fine was R’s 200,000.00
whereas the tax was said to be R’s 35,600. It was accepted on behalf of the defendant
that a provision that provided for a sentence of treble the amount of the tax was
unexceptionable. The Supreme Court held that a minimum fine for wilfully failing

to pay what might be a few cents tax on the sale of a matchbox was
disproportionate. The Court declared the minimum sentence to be contrary to the
Constitution, at any rate as applied to the facts of the case before it, and substituted
a sentence of treble the tax.

22. In Madhub v The Director of Public Prosecution, 2007 SCJ 282, the Supreme Court

considered the minimum mandatory penalty of 12 months imprisonment for
possession of a firearm without a licence under section 24 (1) (a) of the Firearms Act
and held that in so far as it provided for a minimum penalty, it fell afoul of the
requirement of proportionality imposed by section 7 of the Constitution. The Court
held that having regard to the fact that the appellant had a clean record and that no
shot was fired, the minimum mandatory sentence of 12 months should be read
down and should be replaced in that case by one of six months imprisonment.

23. I now consider the principle of totality. An important component of the principle of
proportionality is the principle of totality. The principle of totality comprises of two
elements: (1) all courts when sentencing for more than a single offence, should pass
a total sentence which reflects all the offending behaviour before it and is just and
proportionate. This is so whether the sentences are concurrent or consecutive. (2) It
is usually impossible to arrive at a just and proportionate sentence for multiple

offending simply by adding together notional single sentences. It is necessary to
address the offending behaviour, together with factors personal to the offender as a
whole. (Sentencing Council Guidelines).