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[2012] ZAGPPHC 180
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S v F.M and Another (A263/12) [2012] ZAGPPHC 180; [2012] 4 All SA 351 (GNP); 2013 (1) SACR 57 (GNP) (20 August 2012)
REPORTABLE
IN
THE NORTH GAITING HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: A263/12
DATE:20/08/2012
In
the matter between:
THE
STATE
and
FM
..............................................................................................................................
Accused
and
CENTRE
FOR CHILD
LAW
....................................................................................
Amicus
Curiae
JUDGMENT
Tuchten
J:
1
This matter comes before us on special review from a regional
magistrate under 303(4) of Chapter 30 of the Criminal Procedure
Act,
51 of 1977 ("the CPA") . It relates to the review procedure
when a child, as defined in the Criminal Justice Act,
75 of 2008
("the CJA") is sentenced by a regional court to a form of
imprisonment which is not wholly suspended. Because
of the importance
of the issue, the Deputy Judge President directed that the case be
heard before a full court of three judges.
2.
The Centre for Child Law sought leave to be admitted to the review as
amicus curiae. Its main objective is to contribute to the
establishment and promotion of the best interests of children in
South Africa and in particular to use the law as an instrument
to
advance such interests. There was no objection to the admission of
the amicus, which has both knowledge of and an interest in
the legal
issues raised by the review. We accordingly granted an order
permitting the amicus to enter the proceedings and to present
both
written and oral submissions. Adv Skelton appeared for the amicus and
we are grateful for her contribution.
3.
The accused was charged in a regional court with the crime of
contravening the provisions of s 3 of the Criminal Law Amendment
Act
(Sexual Offences and Related Matters Act) 32 of 2007, corresponding
to the common law crime of rape. It was alleged that on
8 September
2010 he committed an act of sexual penetration of the complainant, an
11 year old girl who, the evidence revealed,
suffered from mental
disability.
4.
The accused was found to have been born on 26 July 1994. Although
other dates of birth are reflected in some of the documents
before
the court, I shall accept that this was his true birth date. He was
legally represented. His only living parent, his mother,
attended the
proceedings. The accused was also assisted by a relative described as
his uncle. The accused decided to plead guilty.
His legal
representative prepared a statement in terms of s 112(2) of the
Criminal Procedure Act, 51 of 1977 ("the CPA")
which the
accused signed. The statement was handed up by the legal
representative of the accused after he pleaded guilty.
5.
In the statement, the accused admitted that he committed an "act
of sexual penetration with" the 11 year old complainant
by
inserting his penis in her vagina without her consent and that he was
detected during the commission of the act, after which
he ran away.
The regional magistrate established from the accused that he
understood the statement and confirmed that its contents
were true
and correct. The prosecutor then informed the court that the state
accepted the facts set out in the statement, whereupon
the regional
magistrate found the accused guilty as charged. This aspect of the
proceedings is uncontroversial. The regional court
then proceeded to
the next stage of the trial, the consideration and imposition of an
appropriate sentence.
6.
The evidence of a senior probation officer with a degree in social
work presented a report, which he confirmed under oath. The
report
disclosed that the accused had no previous convictions but had been
previously charged with offences involving violence,
sexual assault
and theft, committed on 7 January 2009, 20 August 2009 and 25
November 2009. On each such occasion, the charge was
diverted under
the provisions of chapter 8 of the CJA.
7.
The institution of diversion, in terms of which a child in conflict
with the law is dealt with in a procedure over which a judicial
officer presides but outside the scope of the traditional justice
system of plea and trial, is beyond the scope of this judgment.
Suffice it to say that diversion cannot take place unless the
presiding officer is satisfied that a prima facie case against the
child exists and the child acknowledges responsibility for the
offence. Although a diversion order made in terms of the CJA does
not
constitute a previous conviction referred to in the CPA, such an
order is a matter for record. Under s 60(2)(a)(iii) of the
CJA,
particulars of such diversion orders are legitimately accessible for
the purposes of a subsequent trial of the child offender
for an
offence other than that which was the subject of diversion. The
evidence relating to the charges diverted was not challenged
by the
legal representative of the accused.
8.
The accused's father is dead. He is the second of four siblings and
lives with his mother. He left school during his grade 3
year,
probably then aged 12, and began manifesting anti-social behaviour.
He got into bad company and used alcohol and drugs, including
dagga,
which he smoked regularly at the time of his arrest, and a concoction
called nyaope, apparently a mixture of dagga and heroin,
which the
accused claimed to have given up using. At the time of his arrest he
helped an uncle to sell firewood. He did not contribute
any of the
meagre sums he earned in this way towards maintenance of the family
but spent them on his own needs, both lawful and
illicit. The accused
comes from a profoundly impoverished background. He did not
participate in family activities. For example,
at the time of his
arrest, he no longer attended the church to which the family was
affiliated.
9.
After his arrest, the accused was detained at a Secure Centre. There
he got into fights with other residents but participated
well in
programmes designed to transform inappropriate and anti-social
behaviour. As the probation officer observed, it was clear
that the
accused seemed to have gained something from the programmes but it
remains to be seen whether he will practise the values
there
articulated. The probation officer recommended that the accused be
sentenced to a term of imprisonment.
10.
As can be expected, the rape had a dreadful effect on the victim and
her family. I have mentioned that the victim is mentally
disabled. A
victim impact report prepared by a social worker attached to the
Department of Health and Social Development was submitted
to the
court a quo. The only physical injuries she suffered were minor
abrasions and scratches. She was given medication to prevent
various
sexually transmissible diseases. Fortunately, the victim did not
develop any such disease. The victim's mother no longer
thinks it is
safe for the victim to play with other children. The victim herself
wants her mother to be with her at all times to
protect her against
being raped again. She has suffered what the regional magistrate
called a behavioural change as a result of
her ordeal.
11.
The victim's mother indicated that there was no relationship between
the victim and the accused. Against this, the accused claimed
that
the victim was his girlfriend. In context, this claim would appear
strongly to suggest that the accused had previously abused
the
victim. The victim's family are rightly angered by the conduct of the
accused and believe that he should go to prison for his
crime. The
complainant herself appeared to be mentally unfit to testify. The
social worker who prepared the victim impact report
also recommended
that the accused be sentenced to a term of imprisonment.
12.
In passing sentence, the regional magistrate took into account the
personal circumstances of the accused, the youth of the
offender and
the victim, the mental disability of the victim and the brutal
invasion of the privacy, dignity and person of the
victim of a rape
in general and the victim in particular. He accepted and gave weight
to the evidence of the probation officer
and the social worker.
Drawing on the reasoning 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, the regional magistrate pointed out that
while the minimum sentencing regime created by s 51 of Act 105 of
1977 ("the
minimum sentence regime) did not apply to children
aged 16 and 17 years old, the prescribed sentence for the rape of a
child was
life imprisonment and a court sentencing an offender aged
16 or 17 could legitimately have regard to the purposes of the
minimum
sentencing regime even though its provisions did not apply
directly to such offenders. This was described in Centre for Child
Law
v Minister of Justice and Constitutional Development and Others,
supra, para 21 as the "weighting effect" of the minimum
sentences.- as to which see S v B
2006 1 SACR 311
SCA para 24.
13.
The regional magistrate found that the accused was a person who could
be rehabilitated without having to endure a prolonged
period of
imprisonment and proceeded to consider the available sentencing
options. He came to the conclusion that imprisonment
as contemplated
in s 276(1 )(b) of the CPA was the only appropriate option. He
sentenced the accused to 15 years imprisonment of
which 5 years were
suspended for five years on appropriate conditions.
14.
The accused did not appeal against his conviction or sentence.
However, the regional magistrate who heard the case, uncertain
whether cases in which sentence was imposed on a child accused by a
regional magistrate or where a child accused was legally represented
were subject to automatic review under the CJA, has submitted the
matter to the High Court for consideration. The question now
arises
whether a person in the position of the accused, who was legally
represented and who was sentenced by a regional court to
a period of
imprisonment and has elected not to appeal is entitled to have his
case automatically reviewed by a judge.
15.
The question turns largely on the relationship between s 85 of the
CJA and s 302 of the CPA. Section 85 of the CJA reads:
Automatic
review in certain cases
(1)
The provisions of Chapter 30 of the
Criminal Procedure Act dealing
with the review of criminal proceedings in the lower courts apply in
respect of all children convicted in terms
of this Act: Provided
that if a child was, at the time of the commission of the alleged
offence-
(a)
under the age of 16 years; or
(b)
16 years or older but under the age of 18 years, and has been
sentenced to any form of imprisonment that was not wholly suspended,
or any sentence of compulsory residence in a child and youth care
centre providing a programme provided for in section 191 (2)
(j) of
the Children's Act,
the
sentence is subject to review in terms of
section 304
of the
Criminal
Procedure Act by
a judge of the High Court having jurisdiction,
irrespective of the duration of the sentence.
(2)
The provisions of subsection (1) do not apply if an appeal has been
noted in terms of
section 84
1
anc" HREF="#sdfootnote1sym" SDFIXED>
1
.
Section
302
of the CPA reads:
Sentences
subject to review in the ordinary course (1) (a) Any sentence imposed
by a magistrate's court-
(i)
which, in the case of imprisonment (including detention in a child
and youth care centre providing a programme contemplated
in section
191 (2) (j) of the Children's Act, 2005 (Act 38 of 2005)), exceeds a
period of three months, if imposed by a judicial
officer who has
not
held the substantive rank of magistrate or higher for a period
of seven years, or which exceeds a period of six months, if imposed
by a judicial officer who has held the substantive
rank of
magistrate or higher for a period of seven years or longer;
[Sub-para,
(i) substituted by s. 13 (a) of Act 26 of 1987 and by s. 99 (1) of
Act 75 of 2008.]
(ii)
which, in the case of a fine, exceeds the amount 29 determined by the
Minister from time to time by notice in the Gazette for
the
respective judicial officers referred to in
subparagraph
(i),
[Sub-para,
(ii) substituted by s. 8 of Act 109 of 1984 and by s. 15 of Act 5 of
1991.]
(iii)
............................ [Sub-para, (iii) deleted by s. 2 of Act
33 of 1997.] shall be subject in the ordinary course
to review by a
judge of the provincial or local division having jurisdiction
2
.
16.
Section 1 of the CPA defines certain terms relevant to this enquiry.
"Lower court" means any court established under
the
provisions of the Magistrates' Courts Act, 32 of 1944 (Act 32 of
1944). 'Magistrate' does not include a regional magistrate.
'Magistrate's court' and 'regional court' mean a court established
under the provisions of the
Magistrates' Courts Act respectively
for
any district and for a regional division. 'Regional magistrate' means
a magistrate appointed under the provisions of the
Magistrates'
Courts Act to
the court for a regional division. A reference in the
CPA to a magistrate is a reference to the judicial officer presiding
in a
district court and not to the judicial officer presiding in the
regional court.
17.
These terms are not defined in the CJA. Under
s 63
of the CJA, the
trial of a child accused must be conducted in accordance with the
relevant provisions of the CPA relating to plea
and trial of accused
persons, as extended or amended by the provisions as set out in
Chapters 9 and 10 of the CJA. Appeals and
reviews in such cases must
also be conducted in accordance with the procedures provided for in
the CPA, subject of course to provisions
in the CJA in amplification
or to the contrary. It therefore seems appropriate that where an
expression is defined in the CPA but
not in the CJA, the meaning
ascribed to the expression in the CPA should be applied when
interpreting the CJA, unless from the
context a different meaning is
to be preferred.
18.
The case for a positive answer to the question posed in relation to
regional magistrates was made by counsel for the accused
and the
amicus. Counsel for the state submitted that on a proper reading of
the two measures, the traditional position, that the
judicial work of
senior magistrates and regional magistrates was not subject to
automatic review, was preserved. In this context,
one may add that,
over the years, regional magistrates have been given increased
responsibilities and may even presently impose
a sentence of
imprisonment for life.
19.
In Natal Joint Municipal Pension Fund v Edumeni Municipality
[2012]
2 All SA 262
(SCA) at par 18, the proper approach to interpretation
was explained:
[Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective.
A sensible meaning
is to be preferred to one that leads to insensible or unbusinesslike
results or undermines the apparent purpose
of the document. Judges
must be alert to, and guard against, the temptation to substitute
what they regard as reasonable, sensible
or businesslike for the
words actually used. To do so in regard to a statute or statutory
instrument is to cross the divide between
interpretation and
legislation.... The 'inevitable point of departure is the language of
the provision itself,read in context and
having regard to the purpose
of the provision and the background to the preparation and production
of the document.
20.
When a statutory provision is reasonably capable of different
meanings, a court should prefer the interpretation which better
promotes the spirit, purport and objects of the Bill of Rights. That
would be a more effective interpretation through the prism
of the
Bill of Rights. Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and
Another
2009 1 SA 337
CC paras 46, 84 and 107.
21.
There is considerable legislative indication that current legal
policy favours a high degree of scrutiny over sentences imposed
on
child offenders.
Section 28(1
)(g) of the Constitution gives every
child the right not to be detained except as a measure of last
resort, in which case, in addition
to the rights a child enjoys under
ss 12 and 35 of the Constitution, the child may be detained only for
the shortest appropriate
time.
22.
The CJA refers in its preamble to these provisions of the
Constitution and to the United Nations Convention on the Rights of
the Child ("the UN Convention") and the African Charter on
the Rights and Welfare of the Child, under which South Africa
has
obligations as a party.3 Art 37 of the UN Convention prescribes in
terms similar to s 28(1)(1)g) of the Constitution that deprivation
of
liberty should be a measure of last resort and for the shortest
possible time. Art 3 of the African Convention provides that
the
essential aim of treatment of every child found guilty of infringing
the penal law shall be his or her reformation, re-integration
into
his or her family and social rehabilitation.
23.
Sections 82 and 83 of the CJA provide:
82.
Child to be provided with legal representation at State
expense
in certain instances (1) Where a child appears before a child justice
court in terms of Chapter 9 and is not represented
by a legal
representative of his or her own choice, at his or her own expense
the presiding officer must refer the child to the
Legal
Aid
Board for the matter to be evaluated by the Board as provided for in
section 3B (1) (b) of the Legal Aid Act, 1969 (Act 22 of
1969).
(2)
No plea may be taken until a child referred to in subsection (1) has
been granted a reasonable opportunity to obtain a legal
representative or a legal representative has been appointed.
83.
Child may not waive legal representation in certain circumstances
(1)
No child appearing before a child justice court may waive his or her
right to legal representation.
(2)
If a child referred to in subsection (1) does not wish to have a
legal representative or declines to give instructions to an
appointed
legal representative, the court must enter this on the record of the
proceedings and a legal representative must, subject
to the
provisions of the Legal Aid Guide referred to in section 3A of the
Legal Aid Act, 1969 (Act 22 of 1969), be appointed by
the Legal Aid
Board to assist the court in the prescribed manner.
24.
A 'child justice court' means, under s 1 of the CJA (the definitions
section) any court provided for in the
Criminal Procedure Act,
dealing
with the bail application, plea, trial or sentencing of a
child. It is well nigh inconceivable under the CJA, particularly in
the
light of the provisions of
s 83(2)
, for a child accused
competently to be unrepresented in a criminal case. It was accepted
by all counsel who appeared before us
that the case of a child
accused who is legally represented is not disqualified for that
reason alone from being subject to automatic
review. In my view this
must be the correct position. If it were otherwise, almost no case at
all involving a child accused would
be subject to automatic review.
That, to use the language of Natal Joint Municipal Pension Fund,
supra would require imputing to
s 85(1)
of the CJA an unreasonable
and insensible meaning.
25.
This measure, making it to all intents and purposes compulsory for a
child to be legally represented in any criminal trial,
even against
the will of the child, is a sharp break with the past - even with our
early post-Constitutional past. It is also an
indication that the CJA
requires safeguards against a potential failure of justice, of which
legal representation is one, to promote
the constitutionally derived
value as identified in the preamble to the CJA that the plight of
children in conflict with the law
should be approached in a
comprehensive and integrated manner that takes into account their
vulnerability and special needs.
26.
The obligatory nature of legal representation for the child accused
is relevant at a further level. Under
s 302(3)(a)
of the CPA,
automatic review under
s 302(1)
is not required where an accused is
legally represented at the time he or she is sentenced. But on any
interpretation of
s 85
of the CJA, as was recognised by all the
parties who appeared before us, the fact that a child accused was
legally represented
is no longer a bar to automatic review. This too
is an indication of the enhanced scrutiny of the case of the child
accused contemplated
by the CJA and is entirely consistent with the
spirit of the Constitution and the two Conventions to which I have
referred.
27.
On the interpretation advanced on behalf of the state, the measure
requires that the bar to automatic review in relation to
the legally
represented child accused be raised only in the cases of those who
are sentenced to an effective term of detention
of three months or
less by a judicial officer other than a regional court magistrate who
has not held the substantive rank of magistrate
or higher for a
period of seven years and those who are sentenced to an effective
term of imprisonment of between three and six
months by such a
judicial officer who has held the rank for seven years or longer.
28.
This interpretation was criticised by counsel for the accused and the
amicus on the ground that the effect would be, irrationally
and
contrary to the spirit of the Constitution, to exclude from the ambit
of automatic review the cases of children found guilty
of more
serious offences, cases which are generally heard in regional courts
and are likely to attract heavier sentences. This
category, it was
submitted, is more likely to include cases which require scrutiny in
order to ensure at the very least that the
period of detention to
which the child accused is sentenced is the shortest appropriate
period. In my view there is merit in this
criticism. One of the
objects of the CJA, articulated in s 2(c) is to provide for the
special treatment of children in a child
justice system designed to
break the cycle of crime, which will contribute to safer communities,
and encourage these children to
become law-abiding and productive
adults.
29.
And as it was put in S v N
2008 2 SACR 135
SCA para 39:
Every
day [a child] spends in prison should be because there is no
alternative.
The
extension of the protection of special scrutiny arising from
automatic review to all (as opposed to merely some) children
sentenced
to detention, will in my view better promote the spirit,
purport and objects of the Bill of Rights because it will better
promote
the object identified in s 2(c) of the CJA. Wary, supra. It
will also reduce the risk that the time a child accused spends a
period
is longer than is appropriate.
30.
At the level of language, counsel for the accused and the amicus
placed emphasis on the fact that s 85(1) of the CJA refers
to the
review of criminal proceedings in the lower courts. This, counsel
submitted, was an indication that the measure was designed
to include
cases emanating from the regional courts.
31.
Counsel for the state, however, pointed out that Chapter 30 of the
CPA has as its heading Reviews and Appeals in Criminal Proceedings
in
Lower Courts and submitted that the reference to "lower courts"
in s 85 was more likely to have been copied from Chapter
30 than to
indicate an intention to expand the ambit of s 302(1) beyond its
traditional reach. Counsel for the state further referred
to the
principle of statutory interpretation that a proviso should generally
be construed as excepting out of or qualifying something
in the
preceding portion of the measure and not as enlarging the scope of an
enactment when it can be fairly and properly construed
without
contributing to it that effect. Craies, Statute Law, 7th ed 218.
32.
The interplay between the introductory words of s 85(1) and the
proviso was considered in S v Fortuin (reported apparently
only at
[2011] ZANCHC 28)
by Olivier J. The learned judge pointed out at para
18 that a proviso does not always qualify in the sense of limiting
the preceding
part and sometimes provides something additional and
concluded that in the case of the proviso to s 85(1) something
additional
was indeed provided. I respectfully agree with the
reasoning of the learned judge. See R v Rosentoa/1980
1 SA 65
A at
81E-H, a passage relied upon by Olivier J. Counsel are furthermore
agreed that something additional is indeed provided by
the proviso.
The issue is not whether at all something further is provided but how
much is in fact further provided.
33.
Counsel for the state pointed to the fact that s 302 of the CPA was
amended by s 99 of the CJA, read with Schedule 4 to the
CJA and that
the reference in s 302(1) to a magistrate had been left unchanged.
Had it been the intention to extend the ambit of
automatic review to
cases from regional courts, counsel submitted, it would have been a
simple matter to include words to that
effect, making it perfectly
clear that sentences imposed in the regional courts were subject to
automatic review.
34.
Counsel for the state further made reference to the notorious fact
that the interpretation advanced on behalf of the accused
and the
amicus will add to the work load of an already overburdened and
under-resourced justice system in this Division. I accept
that this
is so, although no statistics were presented so I do not know the
extent of the increase in the work load. In my view,
however, this
consideration should be accorded scant weight. The solution,
consistent with the Constitution, is that additional
resources must
be made available to achieve the results which, ex hypothesi, the
legislature has decreed must be realised under
the legislation.
35.
Counsel for the state further pointed out that the child accused who
would be affected by the result of the present enquiry,
ie under the
age of 16 or between 16 and 18 and sentenced to an effective term of
detention in any criminal court has an automatic
right of appeal
under s 84(1) of the CJA without having to apply for leave to appeal.
It is also so that such cases which are taken
on appeal are excluded
from the ambit of automatic review under s 85(2) of the CJA.
36.
At a linguistic level there is much merit in the submissions of
counsel for the state. Despite this, in my view the interpretation
advanced by counsel for the accused and the amicus must prevail. The
position was in my respectful view correctly described in
the
hitherto unreported case of S v CKM and Others (NGHC; judgment
delivered 12 January 2012) para 7:
[The
CJA] introduced a comprehensive system of dealing with child
offenders and children coming into conflict with the law regarding
the treatment of children in conflict with the law that represents a
decisive break with the traditional criminal justice system.
The
traditional pillars of punishment, retribution and deterrence are
replaced with continued emphasis on the need to gain understanding
of
a child caught up in behaviour transgressing the law ... and
reintegration of the child into the community.
37.
Although the child accused has always been treated with a measure of
understanding of and compassion for his or her immaturity
and lack of
judgment, the introduction of the CJA sets new standards for the
protection to which the child accused is entitled.
Under s 28(2) of
the Constitution, the child's best interests are paramount in every
matter concerning the child, not least his
or her collisions with the
criminal justice system. The paramountcy principle does not
necessarily override all other considerations
but does call for
appropriate weight to be given to the interests of the child. S v M
(Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008 3 SA 232
CC para 42. In
my view, while the interpretation urged upon us by counsel for the
state is reasonable, the interpretation contended
for by counsel for
the accused and the amicus is at least equally so and will better
promote the spirit, purport and objects of
the Bill of Rights.
38.
I have accordingly come to the conclusion, after balancing all the
factors mentioned in Natal Joint Municipal Pension Fund,
supra, that
s 85(1) of the CJA should be interpreted to provide for the automatic
review under s 85 of the CJA in respect of all
children convicted in
terms of the CJA who are sentenced to any form of imprisonment not
wholly suspended, or any sentence of compulsory
residence in a child
and youth care centre providing a programme provided for in
s
191(2)(j)
of the
Children's Act, including
children who are so
sentenced in a regional court. My conclusion in this regard is
consistent with that reached in S v CS
2012 1 SACR 595
ECP para 30.
39.
I turn to a consideration of the facts of the present case. The
serious nature of the offence needs no undue emphasis. I have
perforce dwelt above on the protection under the CJA which should be
afforded to the accused. One must however not forget that
the victim
of the accused was, like the accused, one of the children,
particularly black children, referred to in the preamble
to the CJA
as in need of the protection of the law. I find it significant that
the accused, when first confronted with his crime,
raised in his
perceived defence the claim that he regarded the victim as his
girlfriend.
40.
No 16 year old boy, particularly one who participated in the adult
world to the degree to which the accused did, could honestly
believe
that he had a relationship with this mentally disabled 11 year old.
What the accused meant when he made this claim was
that when the mood
took him, he used the victim as a receptacle for the gratification of
his sexual urges and when he did so, the
victim did not object.
41.
In the light of the history I have described above, the accused was
at the time he was sentenced a menace to society. A custodial
sentence was essential to protect society against a person who did
not recognise the boundaries that the Bill of Rights imposes
in
respect of every person's dealings with every other member of
society.
42.
I bear in mind, however, the socio-economic circumstances in which
the accused grew up. In all likelihood, he spent his formative
years
without adequate role models for decent behaviour. Of course, the
vast majority of children growing up in such circumstances
do not
offend in the way the accused did or at all. But I think it is fair
to say that the background of the accused probably deprived
the
accused of influences which would have tended to discourage
anti-social behaviour. Such influences would in all likelihood
have
been present during the formative years of children growing up in
more comfortable socio-economic circumstances. I think it
is fair to
take into account in favour of the accused that he is a disadvantaged
person who succumbed to the temptations and pressures
inherent in his
situation.
43.
It is easy to be wise after the event but it does seem that if a
deeper intervention had been ordered, eg the placement of the
accused
under the supervision of a probation officer under
s 53(4)(d)
of the
CJA pursuant to the diversion procedures in which the accused
participated, the tragic circumstances of the offence presently
under
consideration might have been avoided.
44.
Furthermore, that the accused grew up in an environment of
deprivation and has committed the crime of which he was found guilty
does not mean that the accused cannot be reformed and reintegrated
into society. The regional magistrate found that he could be,
fairly
soon, and I agree with him that it is possible. I do not however
share the view of the regional magistrate that the accused
showed
remorse. There is no suggestion on the record that he sought the
forgiveness of the victim's family or showed any kindness
toward the
victim herself. But one hopes that remorse will come in time.
45.
I think that it is important that the accused should not be punished
for his choices as an adult would be. It is true that he
chose to
leave school, consume drugs and alcohol and commit a number of
crimes. But the choices he made were juvenile choices and
the primary
purpose of the sentence imposed on the accused must be not to punish
him for those choices but to facilitate every
effort to bring him to
understand that the choices he made which landed him in his present
predicament are the wrong choices and
that the world in which he
lives does offer other choices and a way of life other than that in
which he grew up.
46.
I regret that the imposition of a sentence under
s 276(1
)(i) of the
CPA, imprisonment from which such a person may be placed at any time
under correctional supervision in the discretion
of the Commissioner
of Correctional Services or a parole board, would not be appropriate
in this case. That is because when
s 276(1
)(i) is read with
s
276A(2)(b)
of the CPA, a sentence under
s 276(1
)(i) can only be
imposed for a fixed period not exceeding five years. I think that a
sentence permitting the detention of the accused
for no longer than
five years would not fit the crime and be fair to the community but
even more importantly, would not be of sufficient
length to provide
adequate assurance that when the accused regains his freedom, he will
be rehabilitated. So in that sense, such
a sentence would not be fair
to the accused either.
47.
Had I been free to do so, I would have imposed a sentence that did
not bind the Correctional Service authorities to keep the
accused in
prison after the date on which they considered him rehabilitated. I
am however not free to do so because the law is
presently not
flexible enough for me to do what I would consider justice in the
present context. A sentence imposed under
s 276(1
)(b) is therefore,
as the regional magistrate correctly found, the only suitable
sentence.
48.
I also agree that the sentence of 10 years effective imprisonment is
appropriate for all the reasons I have mentioned. I however
differ
from the regional magistrate in relation to the period of 5 years
which the regional magistrate suspended on certain conditions.
A
sentence of fifteen years, even with a portion suspended, is so far
in excess of the sentence I would have imposed as to justify
interference.
49.
I would therefore confirm the conviction but alter the sentence
imposed by substituting for the sentence imposed by the regional
magistrate a sentence of 10 years imprisonment antedated to 17
October 2010 and, for avoidance of doubt, declaring that the other
orders made by the regional magistrate during the sentencing process
and reflected at pp33-34 of the record will stand.
NB
Tuchten
Judge
of the High Court
15
August 2012
I
agree. It is so ordered.
LM
Molopa
Judge
of the High Court
15
August 2012
I
agree.
KE
Matojane
Judge
of the High Court
15
August 2012
FOR
THE STATE: MR H L ALBERTS
INSTRUCTED
BY: LEGAL AID BOARD
FOR
THE ACCUSED: ADV A COETZEE
INSTRUCTED
BY: DIRECTOR OF PUBLIC PROSECUTIONS
FOR
AMICUS CURIAE: M COURTENAY
INSTRUCTED
BY: CENTRE FOR CHILD LAW
1
I
shall in what follows describe a child deprived of his or her
freedom as contemplated in
s 85(1)(b)
as being a child in detention.
This is consistent with the meaning of detention in the definitions
section of the CJA.
2
I
have included reference to amending measures because of an argument
advanced on behalf of the state, with which I shall deal
below.