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[2013] ZAGPJHC 163
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S v TLT (RC258/2012) [2013] ZAGPJHC 163 (21 June 2013)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
and
SAFLII
Policy
IN THE SOUTH GAUTENG
HIGH COURT OF SOUTH AFRICA
(JOHANNESBURG)
Case No: RC258/2012
Review No: 02/2013
High Court Ref No:
61/2013
In
the matter between:
THE
STATE
and
T
L T
Accused
REVIEW JUDGMENT
C.
J. CLAASSEN J
:
[1] The accused, a child
offender, was charged in the Alexandra Regional Court with murder. He
was aged 15 and 10 months (his date
of birth is confirmed as 7 April
1996) at the time of the offence (25 February 2012), and 16 years at
the time of his sentence
(19 March 2013).
[2] He was therefore
dealt with in terms of the
Child Justice Act, No 75 of 2008
, and was
admitted to the Walter Sisulu Child and Youth Care Centre on 26
February 2012, where he was kept for the duration of the
court case.
He pleaded guilty to the count of murder on 24 May 2012 in terms of
section 112(2)
of the
Criminal Procedure Act, No 51 of 1977
.
[3] From the transcript
of the plea proceedings it appears that a fight erupted regarding a
cap that was taken from his friend.
The accused intervened, and when
he got slapped, he pulled out a knife and fatally stabbed the
deceased five times.
[4] The matter was
postponed on several occasions to obtain the necessary reports in
terms of the
Child Justice Act. Eventually
two reports, Exhibits “B”
(by the probation officer) and “C” (by the social worker
at the facility where
he was detained) were obtained.
[5]
The social
worker gave a positive report regarding the behaviour of the accused
at the facility after his arrest, and recommended
a sentence in terms
of
section 76
of the Child Justice Act.
[1]
Section 76 reads as follows:
“
76(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)(j) 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;
[2]
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).”
[6]
In
contradiction to this, the probation officer in Exhibit “B”
recommended direct imprisonment.
[3]
He based his recommendation on the following facts:
6.1 The accused displayed
constant misconduct and lack of discipline from a young age. This
culminated in him being expelled from
school in 2011
[4]
;
6.2 The accused abused
substances such as dagga and glue; and
6.3 The impact of the
event on the deceased’s family.
[5]
[7] The accused was
subsequently sentenced in terms of
section 76(1)
of the
Child Justice
Act to
compulsory residence in a child care centre until he turned 19
years of age.
[8] In terms of
section
302(1)(a)(i)
of the
Criminal Procedure Act 51 of 1977
, the matter is
subject to automatic review, and was received for this reason at the
office of this court’s Registrar on 10
April 2013. On 15 April
2013, the matter was placed before M. M. Hodes AJ for review. He
returned the proceedings to the court
a quo
with various
queries of which the following are pertinent:
8.1 In the light of the
following, namely –
8.1.1 the five
stab wounds having been inflicted with a knife; and
8.1.2 the contents
of Exhibit “B” supra; as well as
8.1.3 the age of the
offender, the date of the crime, and
section 77(2)
of the
Child
Justice Act
[6
]
, the presiding
magistrate was asked to give his view as to whether the period of
detention should not have been more than the period
imposed which is
in fact less than three years. He was also asked to comment on
whether compulsory detention up to the age of 21
would not have been
more appropriate.
8.2 A copy of the
post-mortem report was also requested.
[9] On 13 May 2013 the
magistrate complied with the queries, and conceded that the sentence
of three years’ compulsory residence
might have been too
lenient.
[10] The post-mortem
report and medical report regarding the treatment of the deceased was
also attached, and the following can
be highlighted from the
post-mortem report:
“
4. The external
appearance of the body:
‘
Linear abrasions
are noted over the root of the neck on the left,…There is a
gaping penetrating incised wound over the upper
left lateral chest
wall,…to enter and terminate within the left lung at a depth
of 4cm.”
[11] The cause of death
is identified as being this stab wound that entered the left lung.
The medical report from the Alexandra
Clinic describes lacerations to
the left of the neck. It is assumed that these are the linear
abrasions referred to in the post-mortem
report.
[12]
The accused
admitted to stabbing the deceased five times.
[7]
[13] On 27 May 2013 the
matter was forwarded to the Director of Public Prosecutions for a
written opinion. The Director of Public
Prosecutions is complimented
on a thorough report filed.
[14]
Section 77(2)
is no
longer applicable in view of the decision in
Centre for Child Law
v Minister of Justice and Constitutional Development and Others
(National Institute for Crime Prevention and
the Reintegration of
Offenders, as Amicus Curiae)
2009 (2) SACR 477
(CC) in which the
application of
section 51
of the
Criminal Law Amendment Act 105 of
1997
on offenders who were under the age of 18 at the time of the
commission of the crime, was declared unconstitutional. As already
mentioned in paragraph 1 supra, the accused was 15 years and 10
months at the time of the commission of the offence. Hence, the
only
other section that provides for an appropriate sentencing option in
the present instance is indeed
section 76.
[15] The learned
Magistrate conceded, regarding the appropriateness of the sentence
imposed, that he erred in not adequately taking
into account the
factors listed under
section 69(3)(a)
and (c) (see
infra
) with
particular reference to the following facts, namely:
15.1 that the
accused displayed previous troublesome behaviour;
15.2 that the
deceased was stabbed several times;
15.3 that the
accused was armed with a knife;
15.4 that this
incident caused a severe impact on the family of the deceased; and
15.5 that a
concerning prevalence of this kind of senseless violence existed.
[16] In view of the fact
that the accused was convicted of murder, the magistrate should have
sentenced the accused in terms of
section 76(3)(a)
supra, instead of
section 76(1).
In this regard
section 76(3)(a)
is relevant:
“
The head of the
child and youth care centre to which a 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 the 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.”
[17]
Section 69
deals
with the objectives of sentence, as well as the factors to be taken
into account when a sentence in terms of
section 76
is considered and
it states:
“
69
Objectives of sentencing and factors to be considered.
(1) In addition to
any other considerations relating to sentencing, the objectives of
sentencing in terms of this Act are
to –
(a) encourage the
child to understand the implications of and be accountable for the
harm caused;
(b) promote an
individualised response which strikes a balance between the
circumstances of the child, the nature of the offence
and the
interests of society;
(c) promote the
reintegration of the child into the family and community;
(d) ensure that any
necessary supervision, guidance, treatment or services which form
part of the sentence assist the child
in the process of
reintegration; and
(e) use
imprisonment only as a measure of last resort and only for the
shortest appropriate period of time.
(2) …
(3) When
considering the imposition of a sentence involving compulsory
residence in a child and youth care centre in terms
of
section 76
,
which provides a programme referred to in
section 191(2)(j)
of the
Children’s Act, a child justice court must, in addition to the
factors referred to in subsection (4) relating to imprisonment,
consider the following:-
(a) whether the
offence is of such a serious nature that it indicates that the child
has a tendency towards harmful activities;
(b) whether the
harm caused by the offence indicates that a residential sentence is
appropriate;
(c) the extent to
which the harm caused by the offence can be apportioned to the
culpability of the child in causing or risking
the harm; and
(d) whether the
child is in need of a particular service provided at a child and
youth care centre.”
[18] The magistrate has
the following discretion in terms of subsection 76(3)(c):
“
(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, or without conditions.”
[19] By imposing a
sentence in terms of
section 76(3)(a)
, subsection 76(3)(c) adds extra
options to the court, because, if the accused misbehaves during his
period of residence at the
child care centre, he runs the risk of
having to serve the remaining portion of the sentence in prison. If,
however, he corrects
his anti-social behaviour, and the head of the
child care centre submits a report to the effect that the objectives
of sentence
as envisaged in
section 69
have been met, the magistrate
will have a wide discretion as to how to deal with the accused
further.
[20] For the reasons set
out above, the sentence imposed by the magistrate in the court a quo
should be set aside and the matter
should be referred back to the
court a quo in order for sentence to be considered afresh in terms of
section 76(3)
as read with
section 69
of the
Child Justice Act. The
following order is issued:
1. The conviction is
confirmed, but the sentence is set aside.
2. The matter is referred
to the Regional Court, Alexandra Magistrate’s Court for
re-sentencing of the accused in terms of
section 76(3)
as read with
section 69
of the
Child Justice Act 75 of 2008
.
DATED THE 21st DAY OF
JUNE 2013 AT JOHANNESBURG
C. J. CLAASSEN
JUDGE OF THE HIGH
COURT
I
agree
R. MOKGOATHLENG
JUDGE OF THE HIGH
COURT
It
is so ordered.
[1]
See p. 3 of Exhibit “C”
[2]
Schedule 3 refers
inter
alia
to murder
[3]
See pp. 8 – 9 of Exhibit “B”
[4]
See pp. 3 – 4 of Exhibit “B”
[5]
See p 6 of Exhibit “B”
[6]
Section 77(2)
reads as follows:
“
77 Sentence
of imprisonment:
(1)
…
(2)
Notwithstanding any provision in this or any other law, a child who
was16 years or older at the time of the commission of
an offence
referred to in Schedule 2 to the Criminal Law Amendment Act, 1997
(Act 105 of 1997) must, if convicted, be dealt with
in accordance
with the provisions of section 51 of that Act.”
[7]
See Exhibit “B” at p 5, paragraph 8(b)