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[2012] ZAGPJHC 113
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S v MK (65/2012) [2012] ZAGPJHC 113; 2012 (2) SACR 533 (GSJ) (31 May 2012)
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
(JOHANNESBURG)
High Court Case no:
65/2012
Magistrate’s
serial no: 01/12
Magistrate’s
Court Case no: RC 101/12
DATE: 31/05/2012
REPORTABLE
THE REGIONAL
MAGISTRATE
WYNBERG REGIONAL
COURT 3
(MS PRINSLOO)
In the matter between
THE
STATE
And
MK
ACCUSED
Criminal Procedure -
automatic review in terms of s 85 of Child Justice Act 75 of 2000 -
sentence - accused convicted on two counts
of rape - accused 15 years
old - sentence of 5 years’ imprisonment strikingly
inappropriate.
Sentence - child
offenders - general principles – factors to be taken into
account - recommendation by probation officer -
aimed at
rehabilitation of accused outside prison environment by way of
alternative care - sentence set aside and matter remitted
to trial
court to impose sentence afresh based on probation officer’s
recommendation.
Diversion
in terms of chapter 8 section 52(1) of Child Justice Act 75 of 2000 –
option of diversion can be considered at any
time during the trial
and not only prior to conviction.
J U D G M E N T
VAN
OOST
EN
J:
[1]
This matter comes before me by way of automatic review provided for
in
s 85 of the Child Justice Act 75 of 2008 (the Act). The
accused, a 16 year old youth, on his pleas of guilty, was convicted
in the
regional court, Wynberg, on two counts of rape involving acts
of sexual penetration
per anus
with two male complainants, aged 8 years and 12 years respectively.
The two counts were taken together for the purpose of sentence
and
the accused was sentenced to undergo 5 years’ imprisonment,
which was antedated to the date of his arrest. He was furthermore
declared unfit to possess a firearm in terms of
s 103(1)
of the
Firearms Control Act 60 of 2000
.
[2]
The conviction of the accused is in order. The appropriateness of the
sentence however, in my view, is questionable in consequence
of which
I requested an opinion from the National Director of Public
Prosecutions. Ms
Naidu
,
of the office of the NDPP, promptly responded and I am grateful for
her assistance in furnishing a well-considered opinion which
is in
accordance with the conclusion I have come to.
[3] The accused was 15
years old at the time of commission of the offences. A pre-sentence
report in respect of the accused’s
personal circumstances,
family relations, socio-cultural background and upbringing was
obtained and admitted into the evidence
by agreement. I shall revert
to the salient aspects thereof. The social worker having evaluated
all the information she had obtained
concluded in recommending that
the accused be dealt with in terms of s 53(4)(c) and (d) of the Act.
This section of the Act falls
within chapter 8 thereof which deals
with diversion. The regional magistrate, however, made short shrift
of the recommendation
in holding “the court is of the opinion
that this Act is a diversion option which is available prior to a
person being convicted”.
She further reasoned that the
seriousness of the crimes outweighed correctional supervision
sentence options and that “there
are sufficient youth prisons
in South Africa that are more than equipped with dealing with the
accused (sic) disorders as well
as programmes to assist him”.
[4] As to diversion it is
at the outset necessary to consider the provisions of
s 52(1) of
the Act which provides as follows:
(1) A matter may, after
consideration of all relevant information presented at a preliminary
enquiry, or during a trial, including
whether the child has a record
of previous diversions, be considered for diversion if-...’
(underlining added)
As is made clear by the
underlined portion of the section, the option of diversion can be
considered at any time during the trial.
The regional magistrate
accordingly, wrongly jettisoned the option of diversion resulting in
a misdirection, which, undoubtedly,
seriously prejudiced the accused.
It is however necessary to refer briefly to the principles applicable
in sentencing of juveniles
as the judgment on sentence of the trial
court displays a disturbing lack of consideration thereof.
[5]
The circumstances, needs and well-being of child offenders require
careful, vigilant examination, evaluation and consideration
by a
court in imposing sentence (
see
Hiemstra’s Criminal Procedure
28-60;
SS Terblanche
Guide to Sentencing
2nd Ed
316). The Act, according to its long title, aims to establish a
criminal-justice system for child offenders, in accordance
with the
values underpinning the Constitution and the international
obligations of the Republic of South Africa (
Brandt
v S
[2005] 2 ALL SA 1
(SCA)). In
Centre
for Child Law v Minister of Justice and Constitutional Development
and others
2009 (6) SA 632
(CC)
(2009
(2) SACR 477)
(2009 (11) BCLR 1105)
Cameron J, in the majority
judgment, with reference to s 28 of the Constitution, held:
‘
The Constitution
draws this sharp distinction between children and adults not out of
sentimental considerations, but for practical
reasons relating to
children’s greater physical and psychological vulnerability.
Children’s bodies are generally
frailer, and their ability to
make choices generally more constricted, than those of adults.
They are less able to protect
themselves, more needful of protection,
and less resourceful in self-maintenance than adults. These
considerations take acute effect
when society imposes criminal
responsibility and passes sentence on child offenders. Not only
are children less physically
and psychologically mature than adults:
they are more vulnerable to influence and pressure from others. And,
most vitally, they
are generally more capable of rehabilitation than
adults. These are the premises on which the Constitution requires the
courts
and Parliament to differentiate child offenders from adults.
We distinguish them because we recognise that children’s crimes
may stem from immature judgment, from as yet unformed character, from
youthful vulnerability to error, to impulse, and to influence.
We
recognise that exacting full moral accountability for a misdeed might
be too harsh because they are not yet adults. Hence
we afford
children some leeway of hope and possibility.’
A sentence of
imprisonment should be imposed only as a last resort. In
Centre
for Child Law
, Yacoob J put it thus (para 86):
‘
All our courts are
obliged when imposing sentence to ensure that a sentence of
imprisonment must be imposed on any child, who by
definition is any
person under the age of 18 years, only as a matter of last resort and
only for the shortest appropriate period.’
[6] What are the relevant
circumstances of the accused in the present matter? He comes from an
unsophisticated, poor, albeit stable,
family background. Juvenile
delinquency soon stepped in: he disappeared from home for long
periods of time and lived on the streets
and, not surprisingly,
engaged in substance abuse. This impacted negatively on his
scholastic performance and he prematurely abandoned
school. He
himself was the victim of sexual assault, having been raped on
several occasions, and for this reason professed ignorance
that rape
was a crime. A psychiatric report emanating from Sterkfontein
hospital, where the accused was assessed pursuant to an
order of
court in terms of
s 79
of the
Criminal Procedure Act 51 of 1977
,
indicates a diagnosis of moderate mental retardation, reactive
attachment disorder and substance abuse (cannabis, alcohol and
glue). He was at some stage admitted to Tara hospital and
detained at the Walter Sisulu secure centre but his behavioural
problems necessitated a transfer to Bosasa.
[7] From what I have set
out above it is abundantly clear that the accused is in dire need of
guidance, correction, rehabilitation
and re-integration into his
family and the community (
S v Williams and others
2002 (1) SA
632
(CC);
(1995 (2) SACR 251)).
Those objects, which were seemingly
ignored by the trial court, in my view, can best be achieved outside
the prison environment
(
S v Nkosi
2002 (1) SACR 135
(W)
147f-i) in providing appropriate alternative care. Direct
imprisonment exposing the accused to the many detrimental effects
of
incarceration, in my view, would merely be counter-productive to the
prospects of rehabilitation (
see S v Kwalase
2000 (2) SACR 135
(C);
S v Blaauw
2001 (2) SACR 255
(C) 262i-263c). The sentence
of 5 years’ imprisonment accordingly, is strikingly
inappropriate and therefore ought to be
set aside.
[8] The social worker’s
recommendation, as I have mentioned, was that the accused be dealt
with in terms of s 53(4)(c) and
(d) of the Act, in the following
manner: that he be detained at Sterkfontein Hospital for intensive
therapy and treatment; that
he thereafter be referred to and be
ordered to attend sexual offenders programmes and finally, that he be
placed under the supervision
of a probation officer for purposes of
monitoring and follow-up (
S v Z en vier ander sake
1999 (1)
SACR 427
(O) 438j-439b). I am satisfied that the recommendation is in
the best interests of the accused and that it ought to be
implemented.
In view however, of the administrative and other
requirements having to be complied with and to be provided for in the
sentence
to be imposed, I have decided to remit the matter to the
trial court for imposing sentence afresh in the light of the findings
I have made. In view of the time the accused has already spent in
custody it is hoped that this matter will urgently be re-enrolled
in
the trial court for finalisation.
[9] In the result the
following order is made:
1.
The sentence imposed on the accused, on 12
April 2012, is set aside.
The matter is remitted to
the trial court to consider and impose sentence afresh in the light
of the above judgment.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
I agree.
H MAYAT
JUDGE OF THE HIGH
COURT