The Privy Council handed down judgment in the case of Aubeeluck v The State of Mauritius [2010] UKPC 13 on the 21st July 2010. The issue in the case concerned the circumstances in which a court could hand down a sentence for the commission of a criminal offence lower than that provided for by established law.

The appellant was convicted in 2004 of drug trafficking offences committed in 1998. In addition to a fine, the appellant was sentenced to three years imprisonment in line with the Dangerous Drugs Act 1986 (the 1986 Act). The appellant appealed his conviction before the Supreme Court of Mauritius unsuccessfully; an application for leave to appeal his conviction to the Privy Council was also rejected. Bringing a statement of case before the Judicial Board of the Privy Council, the appellant advanced three grounds of appeal relating to sentence. Focusing on compliance with the Mauritian Constitution and sentencing principles none of these grounds had been advanced before the lower or Supreme Court. Permission to appeal was granted.

S 2 of the Constitution provides that laws inconsistent with the Constitution are to be held to be void. S 7 protects against torture and inhuman and degrading treatment and s 10 provides that where a charge has been laid a fair hearing will be brought within a reasonable time before an independent and impartial court. Also relevant was the replacement of the 1986 Act in September 2001 by the Dangerous Drugs Act 2000. Under the legislation of 2000 it appeared that the appellant, as a first-time offender, would not have been charged as a trafficker and would not have been subject to a minimum term of imprisonment.

Before the Privy Council the appellant argued firstly that the delay of eleven years since the commission of the offences, infringed s 10 of the Constitution. Secondly, that following changes made by the Dangerous Drugs Act 2000, the principle of 'la peine la plus douce’ should have the affect that the appellant no longer be required to serve a prison term. Thirdly, the sentence breached the principle of proportionality espoused by s 7.

Considering the proportionality argument, the court found that a literal interpretation of s 7 did not lend itself to the case before it. However referring to numerous decisions of the Mauritian Supreme Court, the court determined that the section had been applied to cases of differing severity. In Pandoo v The State 2006 MR 323 it was held that principles incorporated in s 7 include that sentence must be proportionate to the offence. Reyes v The Queen [2002] UKPC 11 was also referred to, similar principles having been applied here. Determining that the sentence was grossly disproportionate, the court highlighted that factors including the first-time nature of the offence should have been considered.

Deciding on the issue of delay, the court noted principles outlined in Elaheebocus v The State of Mauritius [2009] UKPC 7; such assessment of whether delay sufficient to infringe s 10 involved consideration of case complexity, conduct of the defendant and the manner in which state authorities acted. Not deeming it necessary to analyse each period of delay in the case before it, the court found that in its opinion s 10 had been infringed.

Briefly discussing the 'la peine la plus douce' point, the court found that it did not have sufficient information before it to determine the issue and remitted this question to the Supreme Court.

Allowing the appeal and quashing sentence, the court remitted the question to the Supreme Court, to be decided with account taken of the issue of delay and the impact of the Dangerous Drugs Act 2000.