Reform, reintegrate, rehabilitate – balancing restorative justice and juvenile offender rehabilitation

October 1st, 2014
x
Bookmark

By Tafadzwa Mukwende

The introduction of the Child Justice Act 75 of 2008 (the Act) set new standards for the protection of the child offender by establishing the Child Justice Court. Flowing from the juvenile justice reforms is the principle of restorative justice entrenched by the Act in the criminal justice system with respect to children who are in conflict with the law. One of the primary objects of the Act articulated in s 2(c), is to provide special treatment of children in the justice system. It is designed to break the cycle of crime and promote safe communities by encouraging re-socialisation and re-education programmes for juvenile offenders as held by the court in S v FM (Centre for Child Law as Amicus Curiae) 2013 (1) SACR 57 (GNP) at para 28. Key international instruments – such as Article 17.3 of the African Charter on the Rights and Welfare of the Child – provide that the essential aim of treatment of every child offender shall be his or her reformation, reintegration into his or her family and social rehabilitation.

Generally, child offenders are uniquely capable of rehabilitation possibilities as compared to adult offenders, as illustrated by the court in Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC) at para 35. Judicial officers must structure the punishment in such a way as to promote the rehabilitation and reintegration of the child concerned into his or her family or community wherever possible according to S v Nkosi 2002 (1) SA 494 (W) at 505I.

It is shocking to note that juvenile offenders are being subjected to strikingly similar lengthy custodial sentences as those imposed on adult offenders for the same offences, considering that most of these juvenile offenders are first offenders without a criminal history or previous convictions. The Supreme Court of Appeal in Fredericks v S 2012 (1) SACR 298 (SCA) held at para 15 that ‘the trial court and the High Court misdirected themselves by imposing a lengthy sentence of imprisonment ignoring that the appellant was a child at the time of the commission of the offences’. The Constitutional Court in Mandla Trust Mpofu v Minister of Justice and Constitutional Development 2013 (2) SACR 407 (CC) at para 58 stated that the Constitution draws a sharp distinction between children and adults in the criminal justice system.

The sentencing court must observe that the actions of a juvenile offender should be treated as such or as those of a child, and not equated to those of an adult in accordance with the principle of proportionality, which requires the sentence to fit the crime as well as the criminal (see S v Kwalase 2000 (2) SACR 135 (C)). Children should be treated differently from adults not for sentimental reasons, but because of their greater physical and psychological vulnerability to pressure from others as held in the Centre for Child Law case at para 26.

Comparable foreign systems of justice

The general considerations mitigating the treatment and punishment of child offenders find resonance with comparable systems of justice as stated in the Centre for Child Law case at para 33. In declaring the death penalty unconstitutional for offenders under 18 years of age, the Supreme Court of the United States of America held that, ‘as a category, children are less culpable’ and thus ‘more vulnerable or susceptible to negative influences and outside pressures including peer pressure’, according to Roper, Superintendent, Potosi Correctional Center v Simmons 543 US 551 (2005) at 567 and 569. Similarly, the Supreme Court of Canada found that children are entitled to a presumption of diminished moral culpability because of their ‘heightened vulnerability, relative lack of maturity and reduced capacity for moral judgment’ in the case of R v DB 2008 SCC ((2008) 293 DLR (4th) 278) 25 at para 41. The court upheld a constitutional challenge based on the Canadian Charter of Rights against the presumptive offences regime which imposed a reverse onus on a juvenile accused to convince the Youth Justice Court not to impose an adult sentence in R v DB at para 78.

On the contrary, s 226 of the United Kingdom Criminal Justice Act, 2003 provides for the detention for public protection or for life in relation to serious offences committed by those under 18 years. The court, when determining an appropriate sentence in respect of a 12-year-old girl convicted of murdering her grandmother in Director of Public Prosecutions KwaZulu-Natal v P 2006 (3) SA 515 (SCA) at para 9, stated that it is not inconceivable that some of the courts may be confronted with cases that require detention. The court then referred to the case in the United Kingdom of R v Secretary of State for the Home Department, Ex Parte Venables; R v Secretary of State for the Home Department, Ex Parte Thompson [1997] 3 All ER 97 (HL) in which two ten-year-old boys were convicted of the murder of a two-year-old boy in appalling circumstances and were sentenced to ten years.

Legal consequences of the minimum sentencing regime

Primarily, the object of the minimum sentencing regime is that it prescribes the imposition of harsh and heavy sentences on juvenile offenders in relation to scheduled crimes as emphasised in S v Dodo 2001 (5) BCLR 423 (CC) at para 11. The effect of the minimum sentencing regime leads to disproportionate sentencing, thereby exposing child offenders to consistently longer and tough sentences which limit the child’s rights enshrined in s 28 of the Constitution, according to Vilakazi v S [2008] 4 All SA 396 (SCA) at para 18.

Section 51 of the Criminal Law Amendment Act 105 of 1997 (the CLAA) distinguished between adult offenders and child offenders. In terms of s 77(2) of the Act, a child justice court is required to deal with a child convicted of an offence in accordance with the provisions of s 51 of the CLAA if the child is 16 years or older at the time of commission of the offence referred to in sch 2 of the CLAA. The Constitutional Court in the Centre for Child Law case at para 78, declared the provisions of the minimum sentencing regime, which are ss 51(1), 51(2), 51(5)(b) and 51(6) of the CLAA unconstitutional and invalid to the extent to which they apply to persons under the age of 18 years at the time of commission of the offence.

Sentencing objectives and factors to be considered

The child justice court must consider the constitutional imperatives of s 28(1)(g) of the Constitution, read with the standard international sentencing guidelines in art 37 of the United Nations Convention on the Rights of a Child, which prescribes in similar terms that every child has the right not to be incarcerated except ‘as a measure of last resort and for the shortest possible time’ according to the Fredericks v S case at para 5. The court in S v Williams and Others 1995 (7) BCLR 861 (CC) at paras 22 – 23 emphasised that South Africa’s child justice legislation should incorporate accepted international standards, as well as such further rules and limitations as to ensure effective implementation of the international standards. The objectives of sentencing and the factors that should be considered are set out in s 69 of the Act.

When considering the imposition of a sentence involving imprisonment in terms of s 77 of the Act, the child justice court must mainly consider the seriousness of the offence, protection of the community and severity of the impact of the offence on the victim. The court is also obliged to consider the circumstances pertaining to a specific child when considering an appropriate sentence according to S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) case at para 42. It has become established practice for the court to consider a probation officer’s report; to enable it to determine the most appropriate form of punishment in the case of a juvenile offender as articulated by Botha JA in S v Jansen and Another 1975 (1) SA 425 (A) at 427H – 428A.

Special protection under the automatic review procedure

The Supreme Court of Appeal in Ntaka v S [2008] 3 All SA 170 (SCA) held at para 39 that the extension of special protection arising from automatic review to all juvenile offenders sentenced to detention will promote the spirit and objects of the Bill of Rights in line with the objects identified in s 2(c) of the Act. The Constitutional Court in the S v M case at para 15 held that a child who is sentenced by a regional court to a form of imprisonment that is not wholly suspended or any sentence of compulsory residence in a child and youth care centre providing a programme contemplated in s 191(2)(j) of the Children’s Act 38 of 2005, is also subject to the automatic review procedure under the provisions of s 85 of the Act, as well as ss 302 and 304 of the Criminal Procedure Act 51 of 1977 (the CPA). Section 85(1) of the Act provides that automatic review applies to criminal proceedings in the lower courts in respect of all children convicted in certain cases where the child was under the age of 16 years (s 85(1)(a)), or older than 16 years but under 18 years (s 85(1)(b)), at the time of the commission of the alleged offence.

Appropriate and alternative sentencing options

Section 290(1) of the CPA empowers a court sentencing juveniles to consider alternative sentencing options such as supervision by a probation officer or other person and detention in a reform school. Alternative sentencing options under the Act include the following:

  • Diversion programme – Under exceptional circumstances provided for in s 52 of the Act, a matter may be diverted from formal court procedures in a criminal matter by means of procedures established by chapters 6 and 8 of the Act.
  • Restorative justice sentences – s 73(1) of the Act provides for restorative justice sentences where a child justice court that convicts a child of an offence may refer the matter to a family group conference in terms of s 61 of the Act and/or for victim-offender mediation in terms of s 62 of the Act.
  • Child and youth care centre – a child justice court may sentence a child offender to compulsory residence in a child and youth care centre. The child may remain in a youth care facility only until the age of 21 years in terms of s 76(2) of the Act.
  • Correctional supervision – in terms of s 75(a) and (b) of the Act, a child justice court that convicts a child of an offence may impose a sentence involving correctional supervision in terms of s 276(1)(h) of the CPA for children under 14 years or s 276(1)(i) of the CPA in the case of a child who is 14 years or older.

Conclusion

It has been recommended that the child justice court should be encouraged to follow the restorative justice-oriented and community-based sentencing options as opposed to the custodial sentencing approach. In addition, the Constitutional Court, in the S v Williams case at 883, endorsed the development of alternative sentences of a non-custodial nature, after considering current sentencing options and trends in child justice and penology. Consequently, this distinctive approach to juvenile sentencing was adopted in the case of S v Z en Vier Ander Sake 1999 (1) SACR 427 (E) at 438J – 439B. Subjecting a juvenile offender to direct imprisonment exposes the child to many detrimental effects of incarceration that would be counter-productive to the prospects of rehabilitation as held in S v Blaauw 2001 (2) SACR 255 (C) at 262I – 263C. Correction, guidance and rehabilitation can best be achieved outside the prison environment in a community setting, as stated in the S v Nkosi case at 147F – I.

Tafadzwa Mukwende LLB (UP) is a candidate attorney at Locketts Attorneys in Nigel.

This article was first published in De Rebus in 2014 (Oct) DR 33.

X