Gregory August v The Queen (In the Court of Appeal of Belize Criminal Appeal No 22 of 2012)
James Guthrie QC, Rowan Pennington-Benton and Julia Lowis assisted local counsel and the Death Penalty Project on behalf of the Appellant.
In 2012 Gregory August (‘the Appellant’), then 19, was convicted of murder and sentenced to life imprisonment under s.106 of the Criminal Code of Belize (‘the Criminal Code’), which provides a mandatory death sentence for anyone convicted of ‘Class A murder’ and a mandatory sentence of life imprisonment for anyone convicted of ‘Class B murder’. The conviction and sentence was affirmed by the Court of Appeal. The Caribbean Court of Justice granted the Appellant special leave to appeal against the decision of the Court of Appeal on a number of grounds including a ground which had not been argued before the Court of Appeal, that the mandatory minimum sentence of life in prison without parole set out in s.106 of the Criminal Code was unconstitutional. The appeal to the CCJ was stayed pending the hearing of that and another ground by the Court of Appeal.
In a decision delivered on 4 November 2016 the Court of Appeal held that the mandatory life sentence was unconstitutional as it violated ss.6 (right to a fair hearing) and 7 (prohibition on torture and inhuman or degrading treatment) of the Belize Constitution. In order to comply with s.7 of the Constitution, it had to be shown that the punishment was not grossly disproportionate to (i) the gravity of the offence, (ii) the personal characteristics of the Appellant, and (iii) the particular circumstances of the case (Lauriano v Attorney General  3 Bz LR 77; Guerra v Baotists  AC 397; R v Smith (Edward Dewey)  1 SCR 1045). The Court of Appeal found that the mandatory minimum life sentence contravened s.7 since prisoners convicted of murder would not be eligible for parole, regardless of the severity of their crime, their behaviour in prison, or potential for rehabilitation. The prisoner’s sentence could only be reduced by the exercise of the prerogative of mercy, determined solely by the government with no clear guidance as to what a prisoner must do in order to be released. The Court noted that the mercy committee, the Belize Advisory Council, had never granted a pardon for any life term prisoner, meaning that the Appellant’s sentence was de facto irreducible as he had no real prospect of ever being released.
Further, the mandatory minimum life sentence violated the Appellant’s right to a fair trial, since it removed the sentencing function from the trial judge who was bound to impose the sentence determined by Parliament (Poonoo v Attorney-General (2011) SLR 424; R v Nur  SCC 15; Deaton v The Attorney General and The Revenue Commissioners (1963) IR 170; Reyes v R (Belize)  UKPC 11). Nor did the Appellant have the opportunity to present mitigating factors which might justify the judge imposing a less harsh sentence. The Court of Appeal found that the mandatory minimum sentence of life imprisonment without parole was ‘grossly disproportionate’ and ‘inhumane’ (para ), and concluded that:
‘…the mandatory minimum sentence of life imprisonment…without the possibility of parole prescribed in the proviso to section 106(1) of the Criminal Code, violates both sections 6 and 7 of the Constitution, to the extent that the proviso to section 106(1) of the Criminal Code is mandatory in nature. It follows that the life sentence imposed on the appellant is therefore unconstitutional.’ (para ).
The Court of Appeal re-sentenced the Appellant to 30 years’ imprisonment, meaning that he will become eligible for release after serving 15 years.