IN THE SUPREME COURT OF BELIZE, A.D. 1999

(APPELLATE JURISDICTION)

ON APPEAL FROM THE MAGISTRATE COURT
FOR THE COROZAL JUDICIAL DISTRICT

ACTION NO. 350

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BEFORE the Hon. Chief Justice Abdulai Conteh.

APPEARANCES:
Mr. Kirk Anderson for the Appellant.
Mr. Linsbert Willis, Crown Counsel, for the Respondent.

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JUDGMENT

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 7(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 with 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 "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 Vlll 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 in 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 $10,0000 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 to be served after (consecutively) the first three years, was excessive and an error in law.

Mr. Willis on behalf of the D.P.P. however argued that there was no error in law, for that was precisely what the Legislature had intended. If people on conviction for some offences are given prison term and a fine and another jail term if they defaulted in paying the fine, it was only logical, he submitted, that they should serve the other jail term in default of paying the fine; otherwise they could simple ignore paying the fine and serve only the initial jail term and that would be the end of the matter. There was therefore nothing excessive or illogical, he submitted, in ordering the Appellant's sentences to run consecutively, that is, if he failed to pay the fine instantly as the court had ordered, he should still spend the other three years in jail in default.

There may be some merit in this contention. For a person who is given a prison term and fined on conviction may well serve the period of incarceration but escape the consequences of the fine altogether unless some sanction were attached to the failure to pay the fine. The prospect of failure to pay is therefore often met by the default alternative, "in default . . . so much time in prison." But it must be remembered that in law, generally when a fine is imposed it becomes due for payment immediately. A fine creates a debt of record recoverable by the State or the Crown.

In any case, the law has ample provisions as to how to enforce compliance with the orders of a court for the payment of any sum of money the court adjudges to be paid. In the case of summary conviction, the relevant provisions are to be found in PART Vll of the Summary Jurisdiction (Procedure) Act - Chapter 100 of the Laws of Belize in sections 61 through to section 78.

In the case of conviction on indictment, the relevant provisions are in sections 167 to 172 of the Indictable Procedure Act - Chapter 83 of the Laws of Belize.

However, as I shall explain later, under the statutory scheme and structure for the punishment for the offence of drug trafficking under the Misuse of Drugs Act, as amended by the proviso under both subsections (1) and (2) of section 17 of the Criminal Justice Act, No. 26 of 1992, failure to pay the requisite fine the Court may impose on conviction shall result in a kind of mandatory imprisonment in lieu.

Mr. Anderson for the Appellant however, forcefully argued that to hand out three more years in default of the Appellant paying the $10,000 fine immediately, in addition to the initial three years already imposed, was harsh and excessive and an error in law especially as the sentences were to run consecutively.

Now in section 34 of the Interpretation Act - Chapter 1 of the Laws of Belize there is the following provision:

"Where in any (Act) a penalty is prescribed for an offence under that (Act), such provision shall imply -

"(a) that such offence shall be punishable upon conviction by a penalty not exceeding the penalty prescribed; and

"(b) if the amount of the fine is unspecified, that such offence shall, without prejudice to any law against excessive or unreasonable fines or assessments, be punishable by a fine of any amount within the jurisdiction of the Court"

The offence of drug trafficking is currently made punishable by section 17 of the Criminal Justice Act No. 26 of 1992. As this appeal arose out of a summary conviction we are only concerned here with subsection (1) paragraph (a) of this section which provides:

"17(1). A person who is convicted of the offence of drug trafficking, or of being in possession of a controlled drug for the purposes of drug trafficking -

(a) on summary conviction, shall be imprisoned for a term which shall not be less than three years but which may extend to ten years, and in addition, shall be ordered to pay a fine which shall not be less than ten thousand dollars but which may extend to fifty thousand dollars or three times the street value of the controlled drug (where there is evidence of such value) whichever is the greater:

Provided that where the controlled drug in respect of which the offence is committed is less than -

"(a) . . .

"(b) . . .

"(c) . . .

"(d) . . .

(e) five kilograms of cannabis or cannabis resin;

"the court may for special reasons to be recorded in writing refrain from imposing a mandatory custodial sentence and, instead, order the convicted person to pay a fine to the extent specified above and in default of such payment, to undergo imprisonment for a term specified above."

My attention was drawn to sections 53, 54 and 55 of the Summary Jurisdiction Act - Chapter 100.

In particular, Mr. Anderson urged that the error of the Magistrate was in making the default imprisonment consecutive on the mandatory three year term already imposed on the Appellant, the default consecutive term was therefore excessive he submitted, as it went beyond the term of imprisonment that could lawfully be imposed in accordance with the scale of imprisonment stipulated by section 55 of Chapter 100. That is to say, as the Appellant was ordered to pay a fine of $10,000 in addition to the mandatory custodial sentence of three years, the term the Magistrate could have lawfully imposed was six months in accordance with the section 55 scale as the fine exceeded $250, and not three years. In any event, this additional term in default of the payment should have been concurrent with the mandatory term of three years already imposed on the Appellant, Mr. Anderson maintained.

However, to my mind, section 53 of Chapter 100 is inapplicable here as it has in contemplation statutes which do not contain provisions for imprisonment in default of fines. In such a case section 53 can come into play and the scale under section 55 may be applicable for the relevant sum to be exacted under the fine and the period of incarceration in default of payment thereof as provided for in the First and Second columns of the section.

Moreover, the scale provided for in section 55 of Chapter 100 would be inapplicable to this case as well. It was a prosecution under the Misuse of Drugs Act for the offence of drug trafficking. The extant statutory provision on the punishment for this offence is in section 17 of the Misuse of Drugs Act - Act No. 22 of 1990 as amended by the Criminal Justice Act No. 26 of 1992. The Misuse of Drugs Act as amended therefore has its own self-contained provisions for the punishment of the offence of drug trafficking.

The relevant provisions for this on summary conviction (for the offence of drug trafficking) have already been set out supra.

Moreover, the opening words of section 55 of Chapter 100 anyhow give precedence to the provisions of any Act which on conviction provide for a sentence of either a fine or imprisonment to be ordered:

"Subject in every case to the provisions of the statute on which the order is founded, the period of imprisonment which is imposed by the Court in respect of non-payment of any sum of money adjudged to be paid by an order shall be that period which, in the opinion of the court will satisfy the justice of the case . . . " (emphasis added), it then goes on to specify the scale of imprisonment for non-payment adjudged by the Court to be paid.

Thus, it is therefore clear that the scheme and scale for the punishment for the offence of drug trafficking under the Misuse of Drugs Act are to be found in the provisions of this Act as amended and not in any other Act or statute. In particular, section 17 of this Act. Therefore, it is to section 17 of this Act that we must turn for the correct position.

An analysis of section 17 yields to my mind, the following conclusions.

Section 17 deals with how a person who is convicted of the offence of drug trafficking is to be dealt with by the Court. The section stipulates a mandatory custodial sentence in addition to fines in specified instances; and a custodial sentence in the event of a default to pay. This seeming dichotomy, I suspect, is the source of the trouble with the sentence in this case and may not be peculiar only to this case.

The crucial determinant as to whether the mandatory (custodial) sentence should be imposed in addition to a fine is dependent on the weight or quantum of the drug in question for which an accused has been convicted.

It seems that, in law, the offence of drug trafficking invites two mandatory punishments if the quantity of the controlled drug for which the conviction is returned is above a certain quantum. These mandatory punishments are custodial and pecuniary (fine).

In the case of summary conviction, the mandatory custodial sentence would range from three years to ten years. In addition, the convicted person shall be ordered to pay a fine (mandatory pecuniary sentence, if you will). In the case of summary conviction, this will range between ten thousand dollars (the floor) and fifty thousand dollars (the ceiling) or three times the street value of the controlled drug at the time, where there is evidence of such value, whichever is greater.

In the case of conviction on indictment, the mandatory custodial sentence ranges from five years (the floor) to fourteen years (the ceiling). The mandatory pecuniary punishment (fine) ranges between fifty thousand dollars (the floor or minimum) and two hundred and fifty thousand (the ceiling or maximum) or three times the street value of the controlled drug in question, if there is evidence of such value, or whichever is greater.

So depending on the market forces, it is even possible whether on summary conviction or conviction on indictment, for the stipulated sums of the mandatory pecuniary punishment to be exceeded in a given case depending on the street value of a particular drug at the relevant time.

It is of crucial importance to note however, that by the scheme of punishment provided by section 17, the Court's power to hand out mandatory custodial sentence is attenuated only if the weight or quantity is less than as specified in the proviso to subsection (1)(a). In this case, the Court may, for special reasons which it should record in writing, refrain from imposing a mandatory custodial sentence. The court shall instead then order the person convicted to pay a fine on the scale specified for the mandatory pecuniary punishment (the fine).

It is also crucial to note that failure to pay the fine in this instance shall then result in the imposition of a prison term on the scale of the mandatory custodial sentence.

The scheme of punishment stipulates by the Act therefore evinces the seriousness with which the Legislature and indeed the rest of the community should treat drug trafficking. The empirical evidence shows that it is a cancer that can eat away the vitals of any society. The courts are therefore duty-bound to vigilantly play their part in helping, with other law enforcement agencies, to stem and possibly stamp out this pernicious trade. But the Courts can only help within the parameters of the law.

A further analysis of section 17 discloses that if, because of the quantity of the controlled drug in respect of which the offence of drug trafficking has been committed a mandatory custodial sentence cannot be imposed, the Court shall record the special reasons for not imposing the mandatory custodial sentence. But it shall then order the convicted person to pay a fine on the specified scale for summary conviction or conviction on indictment, depending on the mode of trial. And failure to pay the fine shall attract imprisonment on the appropriate scale within the appropriate band for either summary conviction or conviction on indictment.

From this analysis, it would appear that it is only on conviction, whether after summary trial or on indictment for the offence of drug trafficking for a lesser amount of the drug in question as specified in the proviso to subsection (1)(a), can the court refrain from imposing a mandatory custodial sentence. It shall nonetheless then order the person convicted to pay a fine on the requisite scale for either summary conviction or conviction on indictment, again depending on the mode of trial of course. The failure to pay such a fine will result in custodial punishment within the relevant range as stated in either subsection (1) or subsection (2).

Thus, the twin mandatory penalties of imprisonment and fine shall apply on every conviction for drug trafficking. But it is only in the event of the drug in question being of a lesser quantity (as specified in the proviso to subsection (1)(a)), may the mandatory prison term be avoided and instead the requisite fine be imposed, and failure to pay this fine is to be visited by the appropriate term of imprisonment.

So, in effect, there are only two types of punishment under section 17, for the offence of drug trafficking, and depending on the quantity of the drug in question for which a person is convicted, both are peremptory. It is only when the quantity is less than a stated amount as per the scale given in the proviso, is this peremptory punishment attenuated and then only by a fine to the extent specified in the section and in default of such payment, a term of imprisonment as specified. There is however no independent, distinct and separate category of "pay now or in default imprisonment" whatever the scale or term of that imprisonment and whether concurrent or consecutive.

In other words, depending on the quantity of the controlled drugs with which the offence of drug trafficking has been committed, punishment thereof is either under subsection (1) for a summary conviction or subsection (2) for conviction on indictment. But if the quantity of the controlled drug is less than as specified in the proviso to both subsections, then punishment shall be in accordance with the proviso, depending on whether the conviction was summary or on indictment.

It is only when the person convicted is to be sentenced under the proviso to either subsections (1) or (2) does the issue of fine or default in its payment arise. It should be underlined that sentencing under the proviso only comes into play if, and only if, the weight of the controlled drug in question is less than the weight or quantum stated in the proviso itself. It must be pointed out that where the sentence is to be imposed under the proviso, the court shall record the special reasons for doing so in writing. The reasons should be stated by the court in writing; and these of course, may include the weight of the drug in question, the fact that the person convicted might have had no previous conviction and also what may be said in mitigation on his behalf. There is no list or category of special reasons, but they will certainly include the weight of the drugs in question as this is what triggers off sentence under the proviso. It is not however, for the person convicted to state the special reasons which the court must record in writing, as the trial magistrate erroneously thought in this case. Although clearly the weight of the cannabis in question here, whether 13.5 or 13.9 kilograms, was clearly outside the statutory threshold for the proviso to apply in any event.

In any event of sentencing under the proviso, the court in which the person is convicted may, for special reasons to be recorded in writing, refrain from imposing a mandatory custodial sentence and instead order the convicted person to pay a fine. It should also be pointed out that the level of the fine shall be within the range specified in either subsection (1) or subsection (2). That is to say, on summary conviction, it may range from ten thousand dollars up to fifty thousand dollars or three times the street value of the controlled drug, where there is evidence of such a value, whichever is greater. And in the case of conviction on indictment, the range of the fine is from fifty thousand dollars to two hundred and fifty thousand dollars or three times the street value where there is evidence of such value, whichever is greater.

In the event that the convicted person defaults in the payment of the fine so ordered by the court, he will have to undergo imprisonment for a term as specified in either subsection(1) or subsection (2). That is to say, on summary conviction, the term in default of payment can range from three years to ten years. And on conviction on indictment, from five to fourteen years.

The imprisonment in default of payment of fine provision only comes into play when the person convicted is to be sentenced under the proviso to either subsections, and this is applicable only because the weight or quantum of the controlled drug in question is less than the quantity specified in the proviso to subsection 1(a).

The proviso to both subsections 1(a) and (b) of section 17 however does not state what constitutes "default of (such) payment" which will kick in the jail term. But there can be hardly any doubt that the court passing sentence under the proviso may state the time within which such fine is to be paid.

However, In the case of sentence under either subsections proper, the punishment is mandatory and cumulative - both custodial and pecuniary by fine. And both shall be exacted.

I reiterate for clarification: there is no concurrent or consecutive custodial punishment under the law for the offence of drug trafficking as these terms are ordinarily understood in the philosophy and practice of sentencing.

Under section 17, the punishment for the offence of drug trafficking is mandatory custodial and mandatory pecuniary, that is, fine. The two are cumulative and not disjunctive or in the alternative. And depending on the quantity of the drug for which a conviction is returned, the Court may when sentencing under the proviso refrain from imposing the mandatory custodial and instead order the person convicted to pay a fine within the stated ranges. And default in payment of such fine will result in imprisonment for a period within the applicable range.

Although the law is silent as to the time of payment, it does however, provide that a default in paying the fine where the mandatory custodial sentence is not imposed (because of the lesser quantity of the controlled drug with which the offence of drug trafficking has been committed), shall result in imprisonment for the term specified as in the case of a mandatory custodial sentence.

There is however no separate category of "pay now in default (x) years imprisonment, with sentences to run either consecutively or concurrently."

In this appeal, from the quantity of the drug in question, it is evident that the sentence must be in accordance with subsection (1)(a) of section 17 and the proviso thereto does not come in for consideration at all.

In the result, I hold therefore that the trial Magistrate was wrong in law when he passed the following sentences on the Appellant:

"Three years imprisonment

Plus a Fine of $10,000

. . .

Pay now. In Default three (3) years imprisonment

Sentences tun run consecutively."

I say nothing about the cost of $5 the Magistrate ordered.

But if he had stopped at the fine of $10,000 after the three years imprisonment, he would have been quite within the parameters of section 17(1)(a), the appropriate section for dealing with the Appellant for the offence for which he was convicted.

Accordingly, pursuant to section 119 of Chapter 82, I modify the decision of the trial Magistrate to read as follows:

Three years imprisonment in addition to a fine of $10,000.

A. O. CONTEH
Chief Justice

Dated: 17th April, 2000.