Newton v Attorney General

• Jurisdiction: Bahamas
• Judge: Isaacs, Sr. J.
• Judgment Date: 07 August 2013
• Docket Number: CRI/CON 14 OF 2012
• Court: Supreme Court (Bahamas)
• Date: 07 August 2013

Supreme Court

Isaacs, Sr. J.

CRI/CON 14 OF 2012

Newton

and

Attorney General

Appearances:

Mrs. Terrell Butler for the applicant

Mr. Rodger Thompson on 24 May 2013, on 4 June 2013 Mrs. Kayla Green-Smith, Ms. Evernett McPhee and Miss. Michelle Dean for the respondent

Constitutional Law - Fundamental rights and freedoms — Whether the right not to be deprived of his personal liberties guaranteed under Articles 15, 17, 19 and 25 of the constitution have been infringed by the imposition of a sentence pursuant to section 29 of the Dangerous Drugs Act — Whether the imposition of a sentence of ten (10) calendar years is consistent with the Mutual Legal Assistance Act section 9(8) — Whether section 33A of the Dangerous Drugs (Amendment Bill) 2011 is arbitrary, disproportionate and unconstitutional — Whether the agreement between the government of Bahamas and the government of Cuba has been infringed — Whether the section is by its nature or duration, incompatible with the law of the administering state or its laws so requires — Whether the amendment to the Dangerous Drugs Act imposing a mandatory minimum sentence is unconstitutional — Whether the imposition of ten (10) years was disproportionate, arbitrary and a denial of due process — Separation of powers.

Isaacs, Sr. J.

1 On 21 June 2013 I dismissed the application of the applicant, Chino Newton for all of the Declarations he asked the Court to make save and except the Declaration sought at (iv) which I promised to rule on when I rendered my written decision at a later date. Unfortunately for the applicant I must decline to make the Declaration related to (iv) also for reasons I will outline later in this judgment.

HISTORY

2 The applicant was arrested by the Cuban authorities on 13 March 2009 for the offence of International Traffic of Toxic Drugs. He and his co-accused were alleged to have been transporting some twenty packages containing around two thousand pounds of marijuana. The boat in which they were travelling developed mechanical trouble and could not continue under its own power. The packages of drugs were thrown overboard at some point before a patrol vessel from the Norte Oriente Department apprehended the boat and its crew.

3 The boat and its crew were taken to Puerta de Vita, Cuba. A search of the boat and its occupants revealed a small amount of drugs. However evidence in the trial in the Provincial Court suggested that they had thrown packages overboard some of which were retrieved and tested with the small amount found in the speed boat. They shared the same characteristics.

4 The applicant and seven of his co-accuseds were convicted and on 13 May 2010, sentenced to various terms of imprisonment. In the case of the applicant he was sentenced to twenty years imprisonment. He started to serve his sentence at La Condessa penitentiary.

5 The applicant made a request to serve his sentence in The Bahamas and on 7 October 2010 the Embassy of The Bahamas in Havana received a document intituled, “ACT OF MANIFEST OF FREE WILL” signed by the applicant. I have extracted what I consider to be the salient paragraph from it. It reads:

“I have been informed of the judicial consequences that derive from my transfer, to conclude the rest of my sentence in Bahamas territory.”

6 On 20 October 2010 then Minister of National Security, the Honourable Orville A. T. Turnquest signed the Agreement signifying his satisfaction that the applicant is a person to whom the Agreement between the Government of the Commonwealth of The Bahamas and the Government of The Republic of Cuba concerning The Transfer of Sanctioned Persons and the Transfer of Offenders Act 1992 applied and who had consented to be transferred from the republic of Cuba. Therefore, the Minister agreed to the transfer of the applicant to continue the sentence imposed upon him by the Cuban Judicial Authorities.

7 As a part of the bundle of documents transmitted to the Republic of Cuba's Minister of Foreign Affairs was a Statement confirming the intention of the Bahamas to apply the “Continued Enforcement” provision of the Agreement Between The Government Of The Commonwealth Of The Bahamas And The Government Of The Republic Of Cuba Concerning The Transfer of Sanctioned Persons (hereinafter referred to as “the Agreement”).

8 The applicant was transferred to The Bahamas to spend the rest of his sentence at Her Majesty's Prison, Fox Hill. He was advised that his release date would be 16 May 2030 (without remission) or 15 June 2021 (with remission). This did not sit well with the applicant because he believed he was entitled to a greater remission than the Bahamian authorities were willing to give him and he also believed his long sentence was a breach of his constitutional rights under Article 19 of the Constitution.

9 The applicant sought the following Declarations:

1

“(i) A Declaration that the rights guaranteed to the applicant under Article 19 of the Constitution of the Commonwealth of the Bahamas has been infringed by the imposition on him of a sentence under the provisions of the criminal law by virtue of section 29 of the Dangerous Drugs Act, Chapter 228, which provides for sentence on summary conviction within the range of five to seven years imprison since the time of his arrest in Cuba and now. (ii) A Declaration that the rights guaranteed to the applicant's rights under Chapter Ill of the Constitution of the Bahamas have been infringed by the imposition on him of a sentence of ten (10) Calendar years when the Mutual Legal Assistance Act by virtue of Section 9 subsection 8 states that, “Any person who is subject of a transfer referred to in subsection (6) or (7) may be released from custody upon such conditions as to bail or otherwise as may be agrees between the Competent Authority of the Bahamas and that of the foreign state and shall in any event be released no later than the date on which he would have been released if he had not been so transferred.” The release_date in Cuba would have been about June 2019 with remission and not June 15, 2021 as projected in the Bahamas. (iii) A Declaration that the section 33A of the Dangerous Drugs (Amendment Bill), 2011 cannot take away the right of a third of a convicted persons sentence by virtue of the fact that a prison year is only eight calendar months not twelve calendar months otherwise it would be arbitrary, disproportionate and unconstitutional. (iv) A Declaration that, The Agreement between the Government of the Commonwealth of the Bahamas and the Government of the Republic of Cuba concerning the Transfer of Sanctioned persons in particular, Article 9 subsection 2 has been infringed, because the applicant is required to serve a longer period of imprisonment at Her Majesty's Prison, Fox Hill the Bahamas than he would have served in the Republic of Cuba. That relevant Sanction states that; 2. If, however, this sanction is by its nature of duration, incompatible with the law of the administering state, or its law so require, that state may, by a tribunal or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sanction to be enforced. It shall not aggravate, by its nature pr duration, the sanction imposed in the sanctioning state, nor exceed the maximum prescribed by the law of the administering state.” (v) A Declaration that the Amendment to the Dangerous Drug Act, Chapter 228, which imposes a mandatory minimum sentence and removes the discretion of the trial judge or Judiciary in the Magistrate's Court is unconstitutional. (vi) A Declaration that the imposition of ten (10) years on the applicant was disproportionate, arbitrary and a denial of the due process guaranteed by Article 19 of the Constitution of the Commonwealth of the Bahamas. (vii) Alternatively that the Court considers the relevant circumstances of his conviction and direct his immediate release.”

10 In his affidavit filed on 24 April 2013 he averred at paragraphs 4 to 8 and 10 to 11:

• “4. That before my transfer from Cuba I was given a remission of about ten (10) years from sentence. It was calculated in Cuba that my release date would be sometime in the year, 2017. I now produce and annex hereto marked as exhibit “C.N. 1” a true copy of the document confirming my remission.

• 5. That the projected date stated in the agreement signed for my transfer to the Bahamas is June 15th, 2021 with remission. I now produce and annex hereto marked as exhibit “C.N.2” a true copy of the Transfer documents

• 6. That I have read the relevant section of, The Agreement between the Government of the Commonwealth of the Bahamas and the Government of the Republic of Cuba concerning the Transfer of Sanctioned persons (also referred to herein as “the Agreement”) in particular, Article 9 subsection 2 and I have been advised and verily believe that I should not be...