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[2020] ZAWCHC 33
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S v V N (19754) [2020] ZAWCHC 33 (4 April 2020)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High
Court Ref No: 19754
Case
No: B/RC/38
Magistrate's
Serial No: 10/2019
In
the matter between:
THE
STATE
V
S
V
REVIEW
JUDGMENT
THULARE
AJ
[1]
This is an automatic review of criminal proceedings in the regional
court, in terms of section 85 of the Child Justice Act,
2008 (Act No.
75 of 2008) (the CJA) read with section 304 of the Criminal Procedure
Act, 1977 (Act No. 51 of 1977) (the CPA). The
accused was seventeen
(17) years at the time of sentencing, and sixteen (16) years at the
time of the commission of the offences.
He pleaded guilty and was
convicted of a charge of murder and a charge of attempt to commit a
sexual offence. The accused was legally
represented.
[2]
The issue is whether the proceedings appear to me to be in accordance
with justice.
[3]
The accused made a statement upon which his plea was based. The facts
were that he was at Cameron's Yard, a tavern in Beaufort
West with
friends drinking beer on the evening of 23 December 2018. The
deceased bumped into him as he walked past. As a result,
the beer
that the accused had in his hand slipped, dropped and broke. The
accused demanded that the deceased buy him another beer.
The deceased
refused and an argument broke out. They grabbed each other and began
fighting. Other patrons intervened and the fight
stopped.
[4]
Later that night, they were both walking home when the argument
started again. The accused was still angry at the deceased for
refusing to buy him beer. He pushed the deceased and the deceased
fell down. He kicked the deceased as the deceased lay on the
ground.
He kicked the deceased on his body and head. The accused picked up a
stone and hit the deceased on the head with it a few
times. He then
picked up a large stone and threw it on the deceased's head.
[5]
The deceased was lying on his stomach on the ground and it appeared
to the accused that he had passed out. The accused decided
to have
sex with him. He pulled the deceased's pants down. He pulled his own
pants' down. He tried to penetrate the deceased's
anus with his erect
penis. He could not achieve it as the deceased lay on an awkward
angle. Some of the accused's friends approached
the scene and the
accused got up and pulled up his pants. The ambulance arrived. He
heard that the deceased was taken to hospital
and also heard that the
deceased died a week later.
[6]
The accused admitted that the sole cause of death was his assault on
the deceased. He was to some extent under the influence
of alcohol on
the day and was also angry but was fully aware of what he was doing,
foresaw the possibility that he may kill the
deceased but proceeded
and knew that he was committing offences. The accused and his
guardian confirmed the statement. The admitted
post mortem report
indicated lacerations on the face and scalp, abrasions of the body,
consolidation of the lungs and a fracture
of the left orbit with
haemorrhage in and around the brain. The State accepted the plea
explanation upon which the accused was
convicted.
[7]
A probation officer, Mrs Daveline Abrahams complied a pre-sentence
report. The accused was a first offender. Accused was conceived
when
both his parents were teenagers, but have been together since for
eighteen (18) years. They initially stayed with his paternal
grandfather. The parents left to co-habitate but the accused remained
and was raised by his grandfather. At thirteen (13) he associated
with older friends who used drugs. He started abusing dagga at that
age whilst still at school. His behavioural problems also began
then.
His drug abuse worsened as he started using stronger drugs
incrementally. From dagga, he used mandrax, tik and occasionally
alcohol over weekends. He dropped out of school in grade ten (10) in
2017.
[8]
The accused had been in a Child and Youth Care Centre (CYCC),
Outeniekwa. He was exposed to educational, vocational and life
skills
programmes. As a first offender and a young person, he was a
candidate for a CYCC. However, because of the seriousness of
the
offence and the failure of the accused to take responsibility, the
probation officer recommended imprisonment at Mossel Bay
Youth
Prison, as it also had programmes in place where the accused could
further his studies and be exposed to other types of skills
development. According to the probation officer, once accused was
sentenced to Mossel Bay as recommended, he may be able to continue
his education at Brandvlei Prison, which was an option once he was in
Mossel Bay. The accused has no dependents.
[9]
The deceased's family was still broken, in shock and sadness. The
deceased suffered from mental illness. He also took chronic
medication for epilepsy since he was young. The deceased did not have
control over some of his bodily functions. However, he was
a father
of a twenty one (21) year old child who was in her second year of BA
Social Work degree. The deceased's family members
are very aggrieved
that the accused took advantage of their family member's illness.
Although the deceased had his challenges,
he was reliable and
trustworthy, assisting with chores in and around the house. Although
some community members took advantage
of him, treating him like a
child to run errands, the family valued him.
[10]
The magistrate pronounced as follows on sentence:
"... But because the
circumstances are different than normal, I will take, for the
purposes of sentences, both offences together.
You are hereby sentenced in terms of
section
76, Act 75
of 2008, which is the passing of a sentence is
postponed, for eight months. Salton is to be detained in compulsory
residence at
Outeniekwa House, which is a CYCC, for the eight months,
and has to be assesses in different programmes, and have to be
provided
with counseling and drug rehabilitation if possible, in the
centre.
The head of that institution is
ordered to compile a report about his behavior and response to the
programmes at the centre, and
is ordered to present Salton and the
report to this Court on 2 April, which will be in the first week, 2
April 2020. 2 April 2020
he will be brought back to this Court."
[11]
I was of the opinion that the sentence was not in accordance with
justice and that it should be set aside and altered. I held
the view
that the accused may suffer prejudice if the record was not placed
before court for argument. I gave notice to the Magistrate,
the
Director of Public Prosecutions (the OPP) and Legal Aid South Africa
(LASA), which acted on behalf of the accused, and called
for
arguments. The notice also gave that
(a)
the court may alter the sentence to one of imprisonment in
terms of
section 77
of the
Child Justice Act;
(b
)
the offences may be taken together for purposes of sentence;
(c)
the accused be sentenced to eight (8) years imprisonment and
(d)
that the sentence be antedated to the date of arrest in
January 2019.
[12]
The magistrate was requested to set forth reasons for the
sentence and to transmit them to the Registrar of the High Court. The
OPP and LASA were given an opportunity to file their Heads of
Argument. I further indicated my desire that in hearing argument on
the sentence of this child, the court should enjoy the benefit of the
submissions from the Centre for Child Law both in respect
of whether
it is permissible for the court to impose a new sentence or
preferably refer the matter back to the magistrate and also
in
relation to the use of the sentence provided for in
section 76(3)
of
the CJA. I invited the Centre for Child Law to make submissions as
amicus curiae.
[13]
I have to record my appreciation for the helpful submissions
made by the OPP, LASA and the Centre for Child Law
(the amicus).
I
have always likened child law to eating a prickly pear. Kicking the
ground before approaching its tree may seem useless. But unless
you
do, and know that you should inductively watch the fine dust and the
direction to which the wind is blowing in order to determine
the
direction from which you should approach the tree, you risk serious
health challenges. Once you have established your ground
through the
kick, watch and determination, you have to navigate the thorns to get
to the fruit. The juicy are almost always perched
on high, awkward
and difficult to reach places. The ripe fruit is very fragile and
needs care in handling. Ordinarily you also
need some hook to reach
out, patiently. Positioning yourself to hook, remove and grab require
timing and adjustment. After enduring
the pricks and stabs here and
there, you should know the art of peeling the fruit. If you don't
know, you will suffer from an itchy
skin, allergic reaction or even
serious damage to your eyes. Only after this labour and patience, can
one actually be a disciple
that preaches the joy of eating a prickle
pear. The consumption should be measured as enjoying too much of the
fruits lead to a
clog. Sentencing a child is both a skill and an art
mastered by study, patience, measurement, creativity and courage.
[14]
The statement received from the magistrate read as follows:
"The sentence is one on terms of
section 76
Act 75/2008. The said offender was committed to compulsory
residence in Youth Care Centre for a period of 8 months, as he would
have turned 18 years on the return date. Though the Act prescribes a
period not more than 5 years or until the offender is 21 years,
in
practice the CYCC only keeps them until the age of 18 years hence, he
had to serve the 8 Months in the institution until age
18 after which
the court has ordered the Head of the institution to return the
offender and to submit a report to court (section
73(3) Act 75/2008)
for further sentence to prison for the term between 8-10 years as he
has committed a schedule 3 offence which
if it was committed by an
adult would been sentenced to more than 10 years imprisonment.
I have noticed that I have erred in
referring to the sentence or treating this sentence as a postponement
of the passing of sentence,
and further I erred in not mentioning
further sentence before his return date as the intention was to
further sentence him to prison
term.
I hope the honourable Judge will find
the above in order."
[15]
The magistrate was newly appointed to the regional court when
the accused was sentenced. The administration of justice would
benefit
if Heads of Administrative Regions in the Magistracy as well
as mentors assigned to them, would ensure that newly appointed
magistrates,
throughout the early stages of their careers, would
write down their judgments. This is especially important where they
deal with
serious and/or complicated matters of fact and law like the
present.
[16]
There is much benefit to be derived from self-correcting.
Written judgments for new appointees would also provide an
opportunity
for learning and continued development if their
experienced mentors read and comment on the judgments before the
newly appointed
magistrate hands it down. In my view, this will not
in interfere with judicial independence, as the magistrate still can
proceed
to pronounce themselves as they deem meet, despite the
contrary views, training and guidance by the mentor. The magistrate
in this
case did not pay sufficient attention to the applicable law
before sentencing the accused.
[17]
There are a number of problems with the sentence imposed in
this matter. The magistrate conflated the applicable provisions of
the
law, and misunderstood the processes which those provisions
prescribe. Firstly, section 297 of the CPA, which provides for the
conditional or unconditional postponement or suspension of a
sentence, reads as follows:
"297 Conditional or unconditional
postponement or suspension of sentence, and caution or reprimand
(1) Where a court convicts a person of
any offence, other than an offence in respect of which any law
prescribes a minimum punishment,
the court may in its discretion-
(a)
Postpone for a period not exceeding five years the passing of
sentence and release the person concerned -
(i)
On one or more conditions, whether as to - ...
(b)
Pass sentence but order the operation of the whole or any part
thereof to be suspended for a period not exceeding five years on any
condition referred to in paragraph (a)(i) which the court may specify
in the order; or
(c)
Discharge the person concerned with a caution or reprimand,
and such discharge shall have the effect of an acquittal, except that
the conviction shall be recorded as a previous conviction."
[18]
Once the court was inclined to postpone the passing of
sentence in terms of section 297, it had to introduce an additional
comment
expressing another reaction. The release of an accused is an
especially critical part of the composite of a sentence provided for
in section 297 (1) (a). Compulsory attendance or residence at a
centre is competent as a condition to the postponement, but has
to be
for a specified purpose. This means residence for a generic
assessment for different programmes is incompetent. The programmes
should be identified and specified. The court did not postpone the
passing of sentence and release the accused on condition of
the
compulsory attendance at Outeniekwa House for a specified purpose.
The court sentenced the accused, to a sentence which is
the
postponement of the passing of sentence. The sentence that the court
passed was not competent in terms of section 297 of the
CPA. This
means, in my view, is that no competent sentence was imposed on the
accused [S
v Seedat
2017 (1) SACR 141
(SCA) at para 36].
[19]
The magistrate purported to sentence the accused in terms of
section 76 of the CJA. This section does not provide for the
postponement
of the passing of a sentence. This is the second ground
upon which, in my view, no competent sentence was imposed on the
accused.
Section
76 (1) - (3) reads as follows:
"76 Sentence of compulsory
residence in child and youth care centre
(1) A child justice court that
convicts a child of an offence may sentence him or her to compulsory
residence in a child and youth
care centre providing a programme
referred to in section 191(2)U) of the Children's Act.
(2) A sentence referred to in
subsection (1) may, subject to subsection (3), be imposed for a
period not exceeding five years or
for a period which may not exceed
the date on which the child in question turns 21 years of age,
whichever date is the earliest.
(3) (a) A child justice court that
convicts a child of an offence-
(i) Referred to in Schedule 3; and
(ii) Which, if committed by an adult,
would have justified a term of imprisonment exceeding ten years,
May, if substantial and compelling
reasons exist, in addition to a sentence in terms of subsection (1),
sentence the child to a
period of imprisonment which is to be served
after completion of the period determined in accordance with
subsection (2).
(b) The head of the child and youth
care centre to which the child has been sentenced in terms of
subsection (1) must, on the child's
completion of that sentence,
submit a prescribed report to the child justice court which imposed
that sentence, containing his
or her views on the extent to which the
relevant objectives of sentencing referred to in section 69 have been
achieved and the
possibility of the child's reintegration into
society without serving the additional term of imprisonment.
(c) The child justice court, after
consideration of the report and any other relevant factors, may, if
satisfied that it would be
in the interests of justice to do so-
(i)
confirm the sentence and period of imprisonment originally imposed,
upon which the child must immediately be transferred from
the child
and youth care centre to the specified prison;
(ii)
substitute that sentence with any other sentence that the court
considers to be appropriate in the circumstances; or
(iii) Order the release of the child,
with or without conditions.
(d) lf a sentence has been confirmed
in accordance with paragraph (c)(i), the period served by the child
in a child and youth care
centre must be taken into account when
consideration is given as to whether or not the child should be
released on parole in accordance
with Chapter VII of the Correctional
Services Act, 1998 (Act 111 of 1998)."
[20]
In terms of section 76, the magistrate could sentence the
accused to compulsory residence in a CYCC providing a programme
referred
to in section 191(2) 0) of the Children's Act. A court
cannot do so without hearing appropriate evidence. In my view, the
court
should at least hear evidence from the CYCC where the child is
held at the time of the sentencing on reaction to programmes already
provided if any, as well as the one where the child is to be placed
not only on the programmes available but also on their effectiveness.
Courts should bear in mind that evidence should guide their decision
as to which of the varying degrees of restrictive care amongst
the
available institutions, is appropriate.
[21]
The court should also be clear on its findings to ensure that
the child receive appropriate attention at an appropriate facility.
Some of the questions that must be answered are: Does the child need
medical, psychological or other treatment and if so, which
specifically? Does the facility have the appropriate resources to
meet the level of risk that the child presented with? Is the
accommodation, amenities and features readily available? The court
should receive current and reliable information from the probation
officer and/or the functionary responsible for the management of the
intended center of placement.
[22]
The
amicus
made the following remarks concerning a
sentence imposed in terms of section 76(3):
"9. Section 76(3) may be referred
to as a hybrid sentence. It was added by Parliament to the original
Child Justice Bill and
was viewed by the Portfolio Committee on
Justice and Constitutional Development as a 'tough' sentence.
Gallinetti records that:
"[T]he Committee was at pains to
ensure that children charged with serious offences are still held to
account for their actions.
As a result public confidence in the new
child justice system would be enhanced. The manner in which this was
achieved was, for
instance, by stating explicitly in the legislation
that children (other than those sentenced under minimum sentencing
legislation)
could still be sentenced for up to 25 years in prison
and creating a new type of sentence which consisted of a
combination of detention in a child and youth care centre possibly
followed
by imprisonment"
(our emphasis).
10. The fact that it is considered a
serious sentence is revealed by the requirement that it is only to be
used in situations which,
if committed by an adult, would attract a
sentence of at least 10 years - this in addition to it being
available only for offences
listed in schedule 3 to the CJA, which
list the most serious offences. It, furthermore, is only to be used
in situations where
substantial and compelling circumstances are
found to exist."
[23]
The
amicus
deals with the problems of the magistrate's
interpretation of section 76(3) in paragraphs 20-24 of its
submissions in the following
terms:
"20. The court a
quo
then
went on to explain its interpretation of section 76(3). This was
described as follows:
"The provision provides that when
the child has committed an offence, which according to that offence
he cannot be released
and be outside for instance, the Court may sill
postpone the sentencing of the accused person and keep that offender
in a compulsory
residence, with the option that that offender has to
undergo evaluation and some programmes which might assist him before
he is
even sentenced."
21. This paragraph reveals that the
sentencing court misunderstood section 76(3) of the CJA to be a
mechanism for the postponement
of sentence. In fact, section 76(3) of
the CJA is a sentence in and of itself, in which both the portion of
the time to be spend
in a CYCC and the portion to be spent in prison
are to be set out clearly in the order.
22. Another concerning aspect of the
court a
quo's
interpretation of section 76(3) of the CJA is
made apparent where the sentencing court states as follows:
"On
the return of the accused person or juvenile back to court, then the
Court may proceed, and at that time the child
would be over the
age of 18 years,
and the Court
will be able to sentence him
for longer periods
. which will still benefit." (our emphasis
added)
23. This demonstrates the dangers of
not setting the sentence of imprisonment out in the order. Not only
is it a misreading of section
76(3) of the CJA but also breaches
several principles of sentencing relating to child offenders - first
and foremost that the relevant
date for the purpose of sentencing is
the date at which the offence was committed, not the date of
sentence.
24. Using section 76(3) of the CJA in
this way- to expand the scope of sentencing with the passing of time
which has been brought
about through the court's own actions, is a
breach of the rule of law principles relating to certainty and
predictability in sentencing.
The accused has a right to know the
content of the sentence at the date of sentence."
[24]
The
amicus
summarized the magistrate's misdirections in
the following terms at para 28:
"28. In summary, it appears that
the sentencing court misdirected itself with regard to its
interpretation and application
and interpretation of section 76(3) of
the CJA:
28.1
One, the
sentencing court misunderstood s 76(3) of the
CJA to be a mechanism for postponement of sentence, with the sentence
to be determined
at a future date.
28.2
Two the
sentencing court was incorrectly of the view
that the age of the offender at the time of sentence was the relevant
age for purpose
of sentencing, rather than the age at the time of the
offence, and was then of the view that the sentencing date could be
manipulated
to allow the child to be sentenced as an adult on the
date when the 18 year old would be brought back to court.
28.3
Three,
the sentencing court failed to set a period of
sentence in a CYCC, coupled with a period of sentence of
imprisonment. This went
against the principles of certainty and
predictability in sentencing, leaving the child offender with no
clear idea about what
his sentence was or would be, nor that his
behavior at the CYCC would be determinative of his future sentence.
It in effect amounts
to an indefinite sentence.
28.4
Four. the
sentence does not convey the seriousness of
the crime to the public, as it gives the impression that the child is
only sentenced
for eight months, and there is no indication of the
possible prison term that may ensue."
[25]
After convicting a child. a child justice court must impose a
sentence in accordance with chapter 10 of the CJA [section 68 of the
CJA]. A sentence as envisaged in section 76(3) of the CJA should be
considered where it is an appropriate response to the nature
of the
offence committed. the child and the interests of society. Such a
sentence is preferable in deserving circumstances for
it offers the
following benefits:
(a)
It ensures that a child is removed from society for a period
not exceeding five years or until the child is 21, whichever date is
the earliest.
(b)
It allows the child to access child- oriented and problem-
specific programmes that are specifically designed by the Department
of Social Development and available at a CYCC to assist in the
rehabilitation of offenders.
(c)
It incentivises the child to be rehabilitated and reform their
behavior against the background knowledge that the matter will return
to court and a report from the Head of the CYCC will be placed before
the court for consideration on a particular date.
(d)
The additional period of imprisonment is known and sends a
clear message about the seriousness of the offence, making clear the
opportunity presented to the child but also the serious consequences
of their action
[amicus
para 44 read with 48].
[26]
When a sentence is due by law, an appropriate sentence should
be imposed. The once-and-for-all rule is entrenched in our law. In
general a sentence flowing from one conviction must prevent a
multiplicity of sentences based on a single conviction. When a court
has imposed a sentence, another sentence on the same conviction is
not permissible. The object of the rule is to prevent repetition
of
sentencing, the harassment of a child and a multiplicity of sentences
and the possibility of conflicting sentences. The magistrate
was
permitted to sentence the child for all the convictions, once. The
rule is buttressed by the principle of
res judicata [MEG, Health
and Social Development, Gauteng v DZ
[2017] ZACC 37
at para 15
and 16]. This rule is also applicable when the court imposes a
sentence in terms of section 76(3) of the CJA. The imposition
of the
additional term of imprisonment must happen simultaneously with the
imposition of the compulsory residence. This gives certainty
to the
offender as to what his sentence is. In this matter, the parties and
especially the child, was left in the dark and uncertain
as to his
actual sentence.
[27]
The prejudice to accused children if there were more than one
opportunity for a magistrate to sentence a child is immeasurable, as
regards their interest in the result of the criminal proceedings. The
doctrine of
functus officio
is necessary for procedural
certainty. In terms of this principle, once the magistrate, had
sentenced the child, the decision is
deemed to be final and binding
once made. The magistrate had no power to revoke the sentence as a
decision maker [S
v Hoema
1978 (2) SA 703
(T) at 704F-H]. The
magistrate cannot correct or in any way alter a sentence in the light
of facts which subsequently come to their
knowledge and of which they
were unaware at the time that they sentenced the child [S
v Cedras
1992 (2) SACR 530
at 531g-h]. I do not understand section 76 to
have done away with this principle totally.
[28]
The hybrid sentence provided for in section 76(3) provides a
regulated exception to the once-and-for-all rule as well as the
functus officio
principle. It may only be imposed if certain
preconditions are met, one of which is that substantial and
compelling circumstances
exists warranting its utilisation. The CYCC
bears the overall responsibility to ensure that the child receives
appropriate therapeutic
interventions necessary for the
rehabilitation and integration and also to report to the court its
views on the impact and effect
of those therapeutic interventions on
the child and the already imposed additional term of imprisonment
[Centre for Child Law
"Working for Rehabilitation? An
account of the Implementation of
section 76(3)
of the
Child Justice
Act 75 of 2008
by Child and Youth Care Centres"]. The need for
the child to be made aware of the nature, scope and content of the
whole sentence
imposed as well as the need for the identified CYCC to
know the child and their therapeutic needs and the capability to
administer
those requisite therapeutic programmes cannot be
underestimated. A court cannot competently impose a sentence which
the presiding
officer does not know or understand.
[29]
A sentence needs to serve the public interest [S
v Seedat,
supra
at para 39] where Tshiqi J said:
"Criminal proceedings need to
instill public confidence 'in the criminal justice system with the
public, including those close
to the accused, as well as those
distressed by the audacity and horror of crime'. (See
S v Jaipal
2005 (1) SACR 215
(CC)
(2005 (4) SA 581
;
2005 (5) BCLR 423
;
[2005] ZACC 1)
para 29.)"
[30]
In
Centre for Child Law v Minister of Justice
200!:J
(6) BA 632 (CC) at para 2!:J and 31 it was said:
"[29] ... The children's rights
provision itself envisages that child offenders may have to be
detained. The Constitutional
injunction that '(a) child's best
interests are of paramount importance in every matter concerning the
child' does not preclude
sending child offenders to jail. It means
that the child's best interests are "more important than
anything else', but not
that everything else is unimportant: the
entire spectrum of considerations relating to the child offender, the
offence and the
interests of society may require incarceration as the
last resort of punishment."
[31]
The Bill of Rights envisages that detention of child offenders
may be appropriate, and it mitigates the circumstances. Detention
must be the last, not a first, or even intermediate, resort; and when
the child is detained, detention must be 'only for the shortest
appropriate period of time'. The principles of 'last resort' and
'shortest appropriate period' bear not only on whether prison
is a
proper sentencing option, but also on the nature of the incarceration
imposed. If there is an appropriate option other than
imprisonment,
the Bill of Rights requires that it be chosen. In this sense,
incarceration must be the sole appropriate option.
But if
incarceration is unavoidable, its form and duration must also be
tempered, so as to ensure detention for the shortest possible
period
of time."
[32]
Whilst being a child is a mitigating factor and requires
special attention, it is not a bar to a sentence of imprisonment. The
accused
is also a first offender and he pleaded guilty. He killed a
vulnerable member of society. The deceased was a person who suffered
from mental illness, epilepsy and did not have control over some of
his bodily functions. The accused pushed him to the ground
and kicked
him throughout his body, hit his body with a stone several times,
picked up a big rock and cracked his skull therewith
and caused
bleeding into the brain. Whilst the deceased lay defenseless and
seriously wounded, the accused undressed him and attempted
to
penetrate the deceased's anus with his penis. This is an utterly
odious and wicked conduct. The deceased was not only brutally
killed
but was humiliated and degraded whilst lying on the ground, seriously
wounded. I have no doubt that committal for eight
(8) months
compulsory residence at a CYCC is bound to cause indignation within a
large portion of society.
[33]
The probation officer recommended a sentence of imprisonment
in terms of
section 77
of the CJA. In her evaluation she referred to
the accused's drug and alcohol abuse, the contribution by
neighbourhood to his predisposition,
negative peer association and
general purposeless lifestyle prior to detention, identifying them as
risk factors to recidivism.
In her view, the accused might be in need
of specific, goal directed services. She indicated that Mossel Bay
Youth Centre, which
is a prison for juveniles in the area, offers
different interventions and programmes which are relevant for the
accused's general
development, including education.
[34]
Whilst he pleaded guilty and gave a detailed plea explanation,
some of the comments of the accused to the probation officer made
it
difficult for her to report on aspects such as remorse, victim and
their family empathy and restorative justice. The seriousness
of the
offence, the circumstances of the accused, the risk factors to
recidivism all made a case for a custodial sentence. These
factors,
seen against the background of the waiting periods for availability
of accommodation in the sentenced unit of the Child
and Youth Care
Centres, in her view let to that it would be in the best interests of
the accused the community and the deceased's
family that the accused
be sentenced to direct imprisonment.
[35]
The magistrate did not follow the probation officer's
recommendations. The magistrate's judgment does not discuss why this
was not
an appropriate sentence [section 71(4) of the CJA]. The
probation officer's concern relating to availability of accommodation
at
CYCC, was acknowledged in the CJA. It is against that background
that where a magistrate imposed a
section 76
(1) sentence, such
magistrate should postpone the matter for a month to his or her court
and on the return date enquire whether
the child had in fact been
admitted [section 76 (4) (d)]. The magistrate disregarded this
obligation, simply postponing the matter
from 16 August 2019 to 2
April 2020. As things stand, we do not know whether the child fell in
the crack between administrative
bureaucracy and misguided judicial
activism, finding himself between a sentence imposed and
unavailability of resources to meet
that sentence. This could have
been avoided if the magistrate had listened to, and heeded the
probation officer's advice that there
was no accommodation available,
as it was her obligation to do so [section 76 (4) (c) read with
section 71(3)].
[36]
In my view, the sentence imposed by the magistrate is, not
only inappropriate but it is also incompetent. In
S v Salzwedel
and Others
1999 (2) SACR 586
(SCA) at para 18 the court said:
"[18] ... Imprisonment would
undoubtedly be prejudicial to the respondents but regard must be had
not only to the interests
of the respondents, but the serious nature
of the crime in the present case, its effect on others and the
interests of the community
at large. It cannot properly be said that
a substantial term of imprisonment, in the circumstances of this
case, 'would serve no
purpose other than retribution'. It would also
give expression to the legitimate feelings of outrage which must have
been experienced
by reasonable men and women in the community, when
the circumstances of the offence were disclosed and appreciated. A
lengthy term
of imprisonment sanctioned by the court would also serve
another important purpose. It would be a strong message to the
country
that the courts will not tolerate the commission of serious
crimes in the country ... "
[37]
I had received this record in November 2019 and remitted it
back as the record was not complete. To date, I still do not have,
amongst
others, the charge sheet as part of the record before me. The
result is that I know that the accused made his first appearance in
the regional court on 23 April 2019. I know that he was already in
custody and had appeared in the district court before he was
referred
for trial to the regional court but I do not know from which date was
he in detention. I only know from the probation
officer's report that
it was in January 2019.
[38]
The
amicus
submitted that the matter be referred back
to the magistrate, which position was supported by LASA. The DPP
submitted that any of
the two, to wit, referral back or alteration of
sentence, was appropriate under the circumstances. In my view, it is
not desirable
that I refer the matter back to the trial magistrate.
After a new sentence is imposed, the matter will still need to be
referred
back to the High Court for reconsideration. It is unfair to
place the child, who is already anxious, through a revolving door
with
the regional division on one side and the High Court on the
other. I recognise that this judgment could give direction to the
magistrate
as to the proper interpretation of
section 76(3)
of the
CJA and may also assist other courts for future matters where the
sentence in terms of the section is considered. It is
also improper
in my view to put the responsibility of a "technical review"
of her sentence on the shoulders of one of
another regional
magistrate.
[39]
In as much as the judgment indicate that I considered the
views expressed by the
amicus,
I am unable to follow through
with their conclusion that I refer the matter back to the magistrate,
setting amongst others the period
of compulsory residence at the CYCC
and indicate that the Head of the CYCC will be required to report.
For that to happen, one
required, in my view, current and reliable
information on the treatment necessary for the child and the
availability of the appropriate
programmes and accommodation at the
CYCC. There is no countervailing evidence to that of the probation
officer, before me, to sustain
a departure from her well- considered
and motivated report.
[40]
The final matter that requires a comment arises from the
following portion of the record:
"PROSECUTOR PUTS CHARGES TO
ACCUSED
PROSECUTOR: ...
Count 2 is that of attempt to commit a
sexual offence, read with section- or rather that you are guilty of
contravening the provisions
of
section 55(a)
, read with Chapter 2, 3,
4 and
sections 1
,
2
,
50
,
55
,
56
,
56A
,
57
,
58
,
59
,
60
and
61
as well
as 71(1), (2) and (6) of the
Criminal Law (Sexual Offences and
Related Matters Amendment Act 32 of 2007
, and further read with
section 49 and 270 of the Criminal Procedures Act 51 of 1977. In that
on or about 23 December 2018 near
Beaufort West, in the regional
division of the Cape, you unlawfully and intentionally attempted to
commit a sexual offence, to
wit by pulling down the pants of Elmo van
Rensburg and to li(k)e on top of him, without the consent of the said
complainant.
Just one moment Your Worship, as the Court pleases
(my own emphasis).
COURT: Do you understand the charges
against you?
ACCUSED: Yes Your Worship.
COURT: Before I - okay (n)ow do you
plead to the charges against you?
ACCUSED: Pleading guilty Your Worship.
ACCUSED PLEADS GUILTY TO BOTH CHARGES"
I
understand the record to indicate that whilst the Public Prosecutor
was still reading the charge on count 2, after reading the
substantial part of it, the public prosecutor requested a moment from
the court. It is clear that the court did not hear or understand
what
was being said by the prosecutor. The court did not grant the moment
requested and it used that opportunity to ask the accused
if he
understood the charge and after his affirmation proceeded to ask him
how he pleaded and the accused pleaded guilty. The legal
representative confirmed the plea on both counts to be in accordance
with their instructions and continued to read a statement
prepared in
terms of section 112(2) of the CPA into the record. Therein the
accused set out the facts upon which the plea was based,
which facts
were accepted by the State and upon which the verdict was returned.
The point taken on review, under the circumstances,
that what was
read out cannot be construed as a charge of attempted rape, is
unfortunate and stands to be rejected.
[41]
The interests of justice demand that I alter the sentence. For
the reasons provided I would therefore make the following order:
1. The sentence imposed by the
magistrate is set aside.
2. The sentence is altered as follows:
2.1 The offences are taken together as
one for purposes of sentence.
2.2 The accused is sentenced to eight
years imprisonment.
2.3 The sentence is antedated to 23
December 2018.
____________________
D.
M. THULARE
Acting
Judge of the High Court
I
agree.
____________________
B.
MARTIN
Acting
Judge of the High Court