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[2013] ZAWCHC 103
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S v Witbooi (13456) [2013] ZAWCHC 103 (6 August 2013)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
High Court Review Number: 13456
Magistrate’s Court Case Number:
OSH168/12
In the matter between:
THE STATE
and
NIKLAASWITBOOI
REVIEW JUDGMENT DATED 6 AUGUST 2013
IN TERMS OF
S 85(1)
OF THE
CHILD
JUSTICE ACT 75 OF 2008
CLOETEJ
:
This matter came
before me in chambers on automatic review in terms of s 85(1)
of the Child Justice Act 75 of 2008 (
‘
the
CJA’
).
After perusing the
record of the proceedings in the court
a quo
I directed
certain queries to the presiding magistrate.
I
will refer to these later in this judgment.
Theaccused (who was legally
represented at the trial) was convicted in the Oudtshoorn
Magistrates Court on 26 February 2013
after pleading guilty to
one count of housebreaking and robbery. Hehad also been charged with
a separate count of theft for which
the trial court had entered a
plea of not guilty on his behalf but for which he was also
subsequently convicted. The sentence
imposed on the count of theft
was a warning and discharge. The court
a quo
reasoned as
follows when sentencing the accused on the count of theft:
‘
Gedagtig
aan
die
feit
dat
hy tans besig is om ʼn vonnis uit te
dien
van
18
maande
gevangenisstraf
en gedagtig aan die meer ernstige vonnis wat hy by klagte 2 gaan kry,
wat ʼn uiters ernstige oortreding was,
gaan die hof hom
WAARSKU
EN ONTSLAAN
.
Dit is net om die kumulatiewe effek korrek te kry ten opsigte van
klagte 1… Ten opsigte van klagte 2 kom ons by ʼn
perd van
ʼn heel ander kleur.’
The court
a quo
sentenced the
accused on count 2 (namely that of housebreaking and robbery) to 5
years direct imprisonment and remarked ‘…
wat taamlik
lig is gedagtig aan die persoonlike omstandighede’.
At the time of being sentenced the
accused was serving a separate sentence in respect of a conviction
for housebreaking with intent
to steal and theft for which he had
been sentenced on 15 August 2012 to 18 months imprisonment
in terms of s 276(1)(i)
of the
Criminal Procedure Act 51 of
1977
i.e. (‘
the CPA’
). In argument on sentence
the accused’s legal representative informed the presiding
magistrate that the sentence that the
accused was serving at the
time arose out of a later offence committed;and thus correctly
submitted that, for purposes of sentence,
the accused was a first
offender (he has no other previous convictions).
The record reflects that the accused
was born on 17 July 1995 and that the offence for which he was
sentenced to 5 years
direct imprisonment was committed on 2 May
2012. He was accordingly 16 years old at the time of commission of
the offence,
and thus fell squarely within the statutory sentencing
requirements contained in Chapter 10 of the CJA.
In
S v L
2012 (2) SACR 399
(WCC) a full bench of this division referred to these requirements
at paras [15] – [17] as follows:
‘
[15]
Chapter 10 of the Act deals comprehensively with the sentencing of
children. Section 68 provides that a court must, after convicting
a
child, impose a sentence in accordance with that chapter. Section 69
details the objectives of sentencing and the factors to
be
considered. In addition to any other considerations relating to
sentencing, the objectives 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.
[16]
The last objective is also to be found in s 28(1)
(
g
)
of the Constitution which provides that every child has the right
not to be detained except as a measure of last resort and then
only
for the shortest appropriate period of time… Section 77(6)
provides that, in compliance with South Africa’s international
obligations, no law or sentence of imprisonment imposed on a child
may directly or indirectly deny, restrict or limit the possibility
of
earlier release of a child sentenced to any term of imprisonment.
[17]
Section 69(4) of the Act stipulates that when considering the
imposition of a sentence involving imprisonment in terms of s 77,
the court must take the following factors into account, namely:
(a)
the seriousness of the offence;
(b)
the protection of the
community;
(c)
the severity of the impact of the offence on
the victim;
(d)
the previous failure of the child to respond
to non-residential alternatives, if applicable; and
(e)
the
desirability of keeping the child out of prison. Section 71 makes it
obligatory (save in certain limited circumstances which
do not apply
here) for the furnishing of a pre-sentence report by a probation
officer. Section 71(4) provides that a court may
impose a sentence
other than that recommended in the pre-sentence report but must, in
that event, enter the reasons for the imposition
of a different
sentence on the record of the proceedings.’
Section 77(2) of the CJA provides
that:
‘
Notwithstanding
any provision in this or any other law, a child who was 16 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 No. 105 of
1997) must, if convicted, be dealt
with in accordance with the
provisions of section 51 of that Act.’
Robbery is an offence specified in
Part IV of Schedule 2 to the Criminal Law Amendment Act 105 of 1997
(‘
the 1997 Act’
). S 51(2)(c)(i) thereof
prescribes a minimum sentence for a Part IV first offender of
imprisonment for a period of not less
than 5 years unless the court,
in terms of s 51(3)(a), is satisfied that substantial and
compelling circumstances exist
which justify the imposition of a
lesser sentence.
The question which arises is whether
s 77(2) of the CJA relieves a sentencing court of the
obligations imposed upon it in
terms of s 69(4) thereof as well
as s 28(1)(g) of the Constitution.
The Constitution is the supreme law
of South Africa. Law or conduct inconsistent with it is invalid, and
the obligations imposed
by it must be fulfilled
(s 2).TheConstitution provides that a child’s best
interests are of paramount importance in
every matter concerning the
child (s 28(2)).The right of a child not to be detained except
as a measure of last resort and
then only for the shortest
appropriate period of time may be limited only in terms of law of
general application to the extent
that the limitation is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom
taking into account all relevant
factors including: (a) the nature of the right; (b) the importance
of the purpose of the limitation;
(c) the nature and extent of
the limitation; (d) the relation between the limitation and its
purpose; and (e) less restrictive
means to achieve the purpose
(s 36(1)).
Given that a child’s best
interests are of paramount importance in every matter concerning the
child; and given the stated
purpose of the CJA as contained in the
preamble thereto, namely ‘
to establish a criminal justice
system for children… in accordance with the values
underpinning the Constitution and the
international obligations of
the Republic
[and] …
to extend the sentencing options
available in respect of children who have been convicted…’
it must surely have been the intention of the legislature, when
enacting the CJA, to nonetheless impose an obligation on a court
sentencing an accused child under s 77(2) of the CJA to have
regard to the express provisions contained in s 69(4)
thereof.
Support for this view is to be found
in the wording of s 69(4) itself which imposes a positive
obligation, without qualification,
on a sentencing court to take
into account the factors set forth therein when considering the
imposition of a sentence involving
imprisonment in terms of s 77.It
was open to the legislature to have made the provisions of s 69(4)
specifically subject
to those contained in s 77(2) of the CJA;
but it did not. Thewordsin s 77(2) that ‘
notwithstanding
any provision in this or any other law’
a child who was 16
years or older at the time of the commission of a Schedule 2 offence
must, if convicted, be dealt with in
accordance with the provisions
of s 51 of the 1997 Act cannot reasonably be interpreted to
mean that courts must disregard
s 69(4) of the CJA when
sentencing children under s 77(2) thereof.
It is accordingly my view that the
proper interpretation to be placed on s 69(4) as read with
s 77(2) of the CJA is
that, despite the applicability of the
minimum sentencing legislation, the sentencing court is nonetheless
obliged to comply
with s 69(4) in arriving at what it considers
to be an appropriate sentence.
Returning now to the queries that I
raised with the presiding magistrate. The pre-sentence report of the
probation officer reflected
that: (a) the accused is learning
disabled; (b) he was involved in a motorvehicle accident in January
2010 and suffered head
injuries. He thereafter began exhibiting
behavioural problems and ultimately left school in June 2011; (c)
the accused’s
family unit is stable and there do not appear to
be any signs of criminal or anti-social behaviour on the part of
family members
other than the accused; (d) he qualified for
correctional supervision, both in respect of the offence for which
he was sentenced
on 15 August 2012 to 18 months
imprisonment in terms of s 276(1)(i) of the CPA, as well as the
present offence,
and indeed this was the probation officer’s
recommendation; and (e) the accused had not displayed any
behavioural problems
since his incarceration at Mossel Bay Youth
Centre.
I informed the learned magistrate
that it was not apparent from the record what steps he had taken to
satisfy himself that the
sentence of 5 years direct imprisonment
was: (a) a measure of last resort; and (b) the shortest appropriate
period of time. It
was also not apparent that he had considered and
taken into account s 68, s 69 and s 77(6) of the CJA
or s 28(1)(g)
of the Constitution. There was furthermore no
reference to s 71(4) of the CJA which, as I have said,
stipulates that a court
may impose a sentence other than that
recommended in the pre-sentence report but
must
, in that
event, enter the reasons for the imposition of a different sentence
on the record of the proceedings.
It is also apparent from further
perusal of the record that at no stage prior to his conviction on
the count of robbery was the
accused’s attention drawn to the
applicable minimum sentencing legislation. It is not reflected in
the charge sheet, was
not referred to by either the prosecutor or
the accused’s legal representative in argument, and was not
referred to by
the learned magistrate when imposing sentence. The
record is furthermore silent as to the applicable provisions of the
CJA. Neither
the prosecutor nor the accused’s legal
representative addressed these in argument, nor did the learned
magistrate make
even passing reference to them in his judgment on
sentence.
Even more disturbing is the
submission made by the prosecutor during argument that ‘
Die
staat is van mening agbare, dat die enigste gepasde vonnis sal wees
direkte gevangenisstraf, dit is die enigste vonnis wat
die regte
boodskap aan die gemeenskap sal uitstuur dat hierdie tipe van
optrede gaan nie geduld word nie. Dit maak nie saak of
jy 17 jaar
oud is nie, jy sal tronk toe gaan’.
In his response to my queries the
learned magistrate acknowledged that he had not during the trial
mentioned the Constitution,
the CJA, our obligations under
international conventionsor why he had departed from the sentence
recommended in the pre-sentence
report. He also acknowledged that it
was not possible for him to correct the record at this stage. He
informed me however that
the question was simply whether or not the
accused was to be given a chance to return to society. As a first
offender and a child
he would have wished to impose a non-custodial
sentence on the accused ‘
if at all possible. The Court
intended imposing a suspended sentence, but found this not to be in
the interest of society…
I would simply like to point out the
following at the risk of saying the obvious’
and he then
set out the reasons why he considered that a sentence of 5 years
direct imprisonment was appropriate in the circumstances.
In his judgment on sentence the
learned magistrate had reasoned as follows. First, an aggravating
factor was that subsequent to
the commission of the current offence
the accused had committed another offence for which he had been
sentenced to 18 months
imprisonment (a factor which should have had
no bearing on the sentence to be imposed on the accused given that
at the time of
commission of the current offence he was a first
offender). Second, the offence was serious. In this regard, the
essential facts
were that the accused unlocked a security door with
a piece of wire and while brandishing it scared the domestic worker
in charge
of the premises at the time into unlocking a safe. He then
removed expensive items as well as a firearm. Third, the offence had
been planned and could have had far more serious consequences.
Fourth, similar offences were committed by other children of the
same age because they assumed that they would not be punished
appropriately ‘
want hulle kry heelwat ligter strawwe as
meer volwasse mense vir verstaanbare redes’.
Fifth, the
imposition of a suspended sentence would have resulted in a
‘
drastiese en skokkende’
overemphasis of the
accused’s personal circumstances. In proceeding to impose the
sentence of five years direct imprisonment
the learned magistrate,
as previouslymentioned, remarked that it ‘
taamlik lig is
gedagtig aan die persoonlike omstandighede’.
In his written response to my queries
the learned magistrate essentially repeated his reasoning relating
to the seriousness of
the offence and the frequency, in his view,
with which offences of this kind occur among the accused’s age
group. He alsothen
set out in some detail why he considered that the
character of the accused and his behaviour did not favour his
release into
society. Finally, he emphasised the interests of the
community and the rights of the victim as well as the accused’s
own
family. He concluded as follows:
‘
Crime
unfashionable as the idea may be requires punishment. I believe in
the circumstances accused was given the lightest possible
sentence
and although not specifically mentioned, all the requirements of the
Child Justice Act and
Constitution were met.’
The learned magistrate’s
written response to my queries in which he motivates why he rejected
the recommendations in the
pre-sentence report, do not form part of
the record of the proceedings in the court
a quo.
This constitutes a fatal irregularity
due to the court a quo’s failure to comply with the peremptory
provisions of s 71(4)
of the CJA. Further – and this is
acknowledged by the learned magistrate – there is simply no
indication in the record
that he took into account the factors to
which he was obliged to have regard in terms of s 69(4) of the
CJA or s 28(1)(g)
of the Constitution nor how he applied them
to the facts of the case. It is inappropriate to consider the
learned magistrate’s
motivation for imposing the sentence that
he did given that his reasons have been provided
ex post facto
and the absence of these considerations in the record constitute
another irregularity.
A further irregularity is
that
the court
a quo
imposed
the minimum sentence stipulated in s 51(2)(c)(i) of the 1997
Act without the accused apparently having been given
any notice
whatsoever that the minimum sentencing provisions were
applicable.Although I have not previously raised this with
the
learned magistrate it is unnecessary to do so at this stage in light
of the other irregularities which vitiate the sentencing
proceedings
in the court
a quo.
My conclusion is thus that the
sentencing proceedings in the court
a quo
were not in
accordance with justice. It follows that the sentence imposed on the
accused in respect of count 2, namely 5 years
direct imprisonment,
must be set aside.
[25] I accordingly make the
following order:
1. The sentence of the accused is
set aside.
2. The matter is remitted to the
court a quo to be heard by another presiding officer who is directed
to consider the pre-sentence
report and to deal further with the
matter in accordance with justice.
3. In the event that the accused
has completed serving the sentence imposed upon him in respect of the
unrelated, later offence
for which he was sentenced to 18 months
imprisonment in terms of s 276(1)(i) of Act 51 of 1977, it is
ordered that he be released
on bail in an amount of R250 on the
following conditions:
(a) That the accused report at the
office of the district court control prosecutor, magistrate’s
court,
Oudtshoorn
, within 7 (seven) days of
his release on bail to be apprised of the date of his court
appearance.
(b) To attend court on all such
days to which the matter will be postponed until the matter shall
finally be dealt with as contemplated
in paragraph 3 of this order.
___________________________
J I CLOETE
HENNEY
J:
I
agree and it is so ordered.
___________________________
R C A HENNEY