Reference: 9/2004

Judgement Details

Judgement Type
Linked Case

Keywords / Summary

The principle nulla poena sine lege does not mean or imply that a Court of Criminal Justice has to go into any particular detail as to the nature and quantum of the punishment meted out, or, where theCourt has a wide margin of discretion with various degrees and latitudes of punishment, that it hasto spell out in mathematical or other form, the logical process leading to the quantum of punishment. This is also the position in English Law. As stated in Blackstone's Criminal Practice 2004 :

“Save where the statutory provisions mentioned below apply, there is no obligation on the judgeto explain the reasons for his sentence. However, the Court of Appeal has encouraged the giving of reasons, and has indicated that that should certainly be done if the sentence might seem unduly severe in the absence of explanation.It has been held that failure by the sentencing court to give reasons when required to do so does not invalidate the sentence.although the failure may no doubt be takeninto account by the appellate court should the offender appeal. Where the sentencer does give reasons and what he says indicates an error of principle in the way he approached his task, the Court ofAppeal sometimes reduces the sentence even though the penalty was not in itself excessive. Similarlya failure by the judge to state expressly that he is taking into account any guilty plea, althoughcontrary to [statutory provision], does not oblige the Court of Appeal to interfere with what is otherwise an appropriate sentence.”

This Court is in full agreement with the principles stated above. Indeed, it is highly recommendable that, when the law provides for a wide margin of discretionin the application of the punishment, reasons, possibly even detailed reasons, be given explaininghow and why the court came to a particular conclusion. This is particularly so in drugs cases comingbefore the Criminal Court where, as in the present case, the punishment of life imprisonment couldalso have been meted out.

In the instant case it is patently obvious that the Criminal Courtwas of the opinion that life imprisonment was not the appropriate punishment, even though it did notstate so expressis verbis in the judgement. This means that the starting point, as far as the custodial punishment was concerned, was of a minimum of four years imprisonment and a maximum of thirty years. Reducing these parameters by the maximum two degrees allowed by Section 29 of Cap. 101, the punishment applicable would have been a minimum of two years and a maximum of twelve years; whereas, with the reduction of only one degree, the parameters are a minimum of three years and a maximum of twenty years. This Court can find no valid reason why the Criminal Court should necessarily have applied the reduction by two degrees, as opposed to a reduction by one degree, which appears to have been the case. It is clear that the first Court took into account all the mitigating as well as the aggravating circumstances of the case, and therefore the punishment awarded is neither wrong in principle nor manifestly excessive, even when taking into account the second and third grounds of appeal ofappellant Melek. As is stated in Blackstone's Criminal Practice 2004 (supra):

“The phrase ‘wrong in principle or manifestly excessive' has traditionally been accepted as encapsulating the Court of Appeal's general approach. It conveys the idea that the Court of Appeal will not interfere merely because the Crown Court sentence is above that which their lordships as individuals would have imposed. The appellant must be able to show that the way he was dealt with was outside the broad rangeof penalties or other dispositions appropriate to the case. Thus in Nuttall (1908) 1 Cr App R 180,Channell J said, ‘This court reluctant to interfere with sentences which do not seem to it to be wrong in principle, though they may appear heavy to individual judges' (emphasis added). Similarly, in Gumbs (1926) 19 Cr App R 74, Lord Hewart CJ stated: ‘.that this court never interferes withthe discretion of the court below merely on the ground that this court might have passed a somewhatdifferent sentence; for this court to revise a sentence there must be some error in principle.” BothChannell J in Nuttall and Lord Hewart CJ in Gumbs use the phrase ‘wrong in principle'. In more recent cases too numerous to mention, the Court of Appeal has used (either additionally or alternativelyto ‘wrong in principle') words to the effect that the sentence was ‘excessive' or ‘manifestly excessive'. This does not, however, cast any doubt on Channell J's dictum that a sentence will not be reduced merely because it was on the severe side - an appeal will succeed only if the sentence was excessive in the sense of being outside the appropriate range for the offence and offender in question,as opposed to being merely more than the Court of Appeal itself would have passed.”

This isalso the position that has been consistently taken by this Court, both in its superior as well as in its inferior jurisdiction.

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