By Ronalda Luke
The Eastern Caribbean Court of Appeal has upheld an appeal filed by attorney Wayne Norde on behalf of five Venezuelans and one Italian man who were each serving concurrent seven-year sentences in Dominica for drug trafficking and importation. However, the Court has reserved judgment on critical constitutional questions raised in the appeal—most notably whether the sentencing provisions under Section 16(1) of the Drug (Prevention of Misuse) Act, Chapter 40:07 of the 2017 Revised Laws of Dominica, are unconstitutional and should be struck down.
The case originated from an incident that occurred on Monday, August 21, 2023, when ten nonnationals arrived at the Douglas-Charles Airport between 7:30 p.m. and 11:00 p.m. During a routine screening conducted by officers of the Customs and Excise Division, the men appeared to be carrying non-alimentary objects inside their bodies.
They were escorted to the Accident and Emergency Department of the Dominica China Friendship Hospital, where a CT scan confirmed the presence of foreign items in his digestive system. The nonnationals were admitted to the Alford Ward, and throughout their stay, they excreted more than 800 white pellets, which were later determined to contain over 11,000 grams of cocaine.
Following this discovery, six of the men—Wilber Jesus Delpretty Oliveros, Jose-Del Carmen Serrada Cassero, Yofran Alexander Martinez Martinez, Emerson Ricardo Machado Campos, Luis Alfredo Machado Campos, and Osarumwense Barrecy Ibuze—were jointly charged with five offenses, including trafficking and importation of cocaine. On August 28, 2023, all six appeared before Magistrate Michael Laudat, where they entered guilty pleas. Following their admissions and a brief mitigation hearing, Magistrate Laudat sentenced each man to seven years for drug trafficking and an additional seven years for drug importation.
On appeal, attorney Wayne Norde argued that the sentences were unduly harsh and excessive in light of the facts of the case. He also raised fundamental legal concerns about the validity of the charges and convictions under Section 16(1) of the Drug (Prevention of Misuse) Act.
Expanding on his constitutional argument, the attorney contended that the mandatory minimum sentence imposed under the Act amounted to cruel and inhumane punishment, contrary to Section 5 of Dominica’s Constitution. He further argued that this statutory requirement undermines the separation of powers by removing the discretion of the judiciary to consider the unique facts and circumstances of each case. In doing so, he claimed, the law imposed “a blanket penalty that fails to take into account factors such as the accused’s role in the offence, their circumstances, and their criminal history—or lack thereof.”
Norde emphasized that the law, as applied in this case, was “disproportionate, particularly given that all six men were first-time offenders and appeared to be acting as couriers rather than masterminds behind a trafficking network”. He asked the Court to either strike down or sever the offending portion of Section 16(1) to the extent that it violated the Constitution and called on the Bench to declare the seven-year sentence “excessive under the specific circumstances of the case.”
Additionally, the attorney urged the Court to consider broader issues of justice and fairness in sentencing. A central issue, he said, was “whether the mandatory minimum sentence of seven years was excessive, disproportionate, and ultimately unconstitutional.” Section 16(1)(ii) prescribes a mandatory minimum sentence that, according to Norde, “offends the core principles of sentencing jurisprudence.”
“By imposing rigid, non-negotiable sentences, the provision removes the ability of judges and magistrates to exercise discretion and craft sentences that are appropriate in light of the facts,” he said.
In rendering his original decision, Magistrate Laudat admitted to departing from the Eastern Caribbean Sentencing Guidelines for Drug and Firearm Offences. Instead, he relied on the Magistrate’s Code of Procedure and the penalty structure laid out in the 2017 Revised Laws of Dominica. Norde contended that this departure was “unjustified and that the Magistrate failed to establish a sentencing starting point—an omission that could not be ignored in appellate review.”
Norde further submitted that the Constitution guarantees “the rights to liberty, fair trial, and protection from inhumane or degrading punishment.” Sentencing powers, he said, “must be exercised in a way that aligns with these constitutional protections.”
He explained that “mandatory minimums, by their nature, undermine judicial independence and the rule of law by denying judges the flexibility to ensure that justice is done in each case.”
To reinforce his point, Norde referenced several landmark cases. These included Francis and Hinds v The State [2015] 2 LRC 244, where a mandatory minimum was found to breach the right to protection of the law; The Queen v K’vawn Choucoutou, where the court imposed a sentence below the statutory minimum based on specific facts; and R v Nur [2015] 5 LRC 662, a Canadian Supreme Court decision which criticized mandatory minimums as “blunt instruments” likely to cause disproportionate outcomes. Additional authorities cited included Alexander v The Queen (BB 2014 CA 15) and Davis v Commissioner of Police [2013] 1 LRC 213, both of which struck down statutory minimums as constitutionally defective.
Together, these cases establish the principle that sentencing must be individualized. Courts must consider not just the offence but also the offender—taking into account factors such as motivation, role, background, and potential for rehabilitation.
“It is therefore submitted,” Norde said, “that the seven-year sentence imposed on the Appellant, a first-time offender, was constitutionally cruel.” He faulted the Magistrate for focusing only on the nature of the offence while ignoring the personal context of the offender, thereby prioritizing deterrence and denunciation over proportionality and fairness.
He also argued that insufficient weight was given to mitigating factors, including the men’s limited roles as couriers and their cooperation with authorities. The evidence, Norde said, clearly indicated that the operation was orchestrated by someone else—an individual known only as “Sony.” The appellants, he stressed, were “not traffickers in the conventional sense but were exploited by a larger criminal enterprise.”
Citing R v Smith, he underscored that sentences must be calibrated to the facts. Public interest in deterrence, he said, cannot justify trampling on constitutional protections. He told the court that “in his view, the sentence imposed was wildly disproportionate and should be revised downward to a period of one year—essentially time already served.”
In conclusion, he asked the Court to declare the seven-year sentence “unlawful, excessive, and unconstitutional.”
Further, he requested that the Court “impose a one-year sentence in line with the Sentencing Guidelines and the Constitution and ensure that the trafficking and importation sentences run concurrently.”
Norde submitted that the time already served by the men satisfies the interests of justice and that continued incarceration would violate their fundamental rights. He concluded that Section 16(1), as currently applied, is incompatible with the Constitution—the supreme law of the Commonwealth of Dominica.
In response to the constitutional challenge, the prosecution stated that while Section 16(1) of the Drug (Prevention of Misuse) Act may limit judicial discretion, it does not, in itself, constitute a violation of Section 5 of Dominica’s Constitution, which protects against cruel or inhumane punishment.
The State attorneys maintained that the mandatory minimum sentence of seven years serves a legitimate legislative purpose and is a proportionate response to the serious nature of drug offences. It does not, they noted, “meet the threshold of being considered cruel, degrading, or unconstitutional.”
They further contended that Parliament is within its rights to set sentencing frameworks and that this does not infringe on the judiciary’s role to determine guilt and apply the law. As such, severing the provision would go against legislative intent.
Regarding the sentence imposed, the prosecution agreed it was excessive. They held the view that “the Magistrate failed to follow established sentencing guidelines and did not properly factor in the defendants’ guilty pleas, which should have warranted a sentence reduction.” According to the prosecution, had the guidelines been applied correctly, the appropriate sentence would have been one year and six months. Since this time has already been served, they, too, agreed that the sentence should be time served.
In their ruling, Justices of Appeal Margaret Price Findlay, Vicki Ann Ellis, and Justice Trevor Ward allowed the appeal and declared the sentence imposed by the magistrate to be “excessive.” As a result, the original sentence was quashed and set aside. The appellants were instead sentenced to time already served and are now eligible for release. The Justices noted that full written reasons for their decision will be delivered in due course.