Page 31 - Magistrates Conference 2019

with no previous record would contravene section 12 of the Charter in that it
would be cruel and unusual punishment “so excessive as to outweigh standards
of decency”.

14. Lamer J remarked that the test for review under section 12 of the Charter is gross
disproportionality, because it is aimed at punishments that are more than merely
excessive. Lamer J cautioned against stigmatising every disproportionate or
excessive sentence as being a constitutional violation, and stated that one should
leave to the usual sentencing appeal process the task of reviewing the fitness of
the sentence. Section12 will only be infringed where the sentence is so unfit,
having regard to the offence and the offender as to be grossly disproportionate.
In deciding whether a sentence is grossly disproportionate, the court must first

consider the gravity of the offence, the personal characteristics of the offender
and the circumstances of the case in order to determine what range of offences
would have been appropriate to punish, rehabilitate, deter or protect society
from this particular offender: pages 55, 56.

15. Section 7 of the Constitution of Saint Kitts and Nevis falls to be considered. Section 7

provides that “no person shall be subjected to torture or to inhuman or degrading
punishment or other such treatment”. This provision is not peculiar to St Kitts and
Nevis, as it is also found in other constitutions in the region, for example, section 5
of the Constitution of Saint Vincent and the Grenadines.

16. Section 7 of the Constitution of Saint Kitts and Nevis, is the kindred section to
section 12 of the Canadian Charter of Rights and Freedoms. We have seen the
operation of section 12 in R v Smith. Section 7 incorporates the principle that the

sentence must be proportionate to the seriousness of the offence. An issue can arise
as to whether a sentence of a court would be so disproportionate to the seriousness
of an offence, so as to be excessive and inhuman contrary to section 7 of the
Constitution of Saint Kitts and Nevis and other constitutions within the jurisdiction
of the court with a similar or kindred provision.

17. As you know, in some islands within the court’s jurisdiction, minimum mandatory
sentences exist for certain offences. In giving the advice of the Board in Sabapathee
v The Director of Public Prosecutions [2014] UKPC 19 at paragraph 9, Lord
Toulson, considered section 7 of the Constitution of Mauritius (the same as section 7
of Saint Kitts and Nevis) and said that this provision has been interpreted as making