Child Justice Bill: [B49-2002]

Written comments: Prof SS Terblanche

Background

My interest in the Child Justice Bill centres on the sentencing of child offenders. I am an expert on sentencing, have been researching sentencing since 1985, have written numerous research articles and papers on the topic and is the author of the current standard textbook on sentencing titled A guide to sentencing in South Africa 2ed (2007) LexisNexis. As a result I limit my comments on the Bill to the provisions related to sentencing. I apologise for the fact that the comments might not always be accompanied with proper references, but this comment was prepared at very short notice.

I also request to be permitted to present oral evidence to the Committee on the date set aside for such evidence.

General

In general I support the Bill and its basic premises. The South African Law Research Commission did sterling work in researching the issue and as far as the Bill is based on that research it clearly is the result of much consultation, research and experience in the field.

Specific comments

Clause 58

Clause 58 becomes part of the sentencing provisions through the reference in clause 73. See clause 73 for comments on aspects of clause 58.

Clause 70

I support the fact that clause 70 includes specific factors that the courts should take into account when deciding on the imposition of sentences such as imprisonment, in subclause (3). I request the Committee to seriously consider further explaining the “seriousness of the offence”, specifically by including

(1) the amount of harm done or risked through the offence, and

(2) the culpability of the offender in causing or risking the harm.

These two factors are universally used to determine the seriousness of the offence and are very useful guidelines in determining the true severity of an offence. See, in this connection, the South African Law Reform Commission Report: Sentencing (A new sentencing framework) 2000 (clause 3 of the proposed Bill).

Clause 71

I fully support the specific provision for victim impact statements to be produced in court. I also notice that the wording of this clause closely follows the wording proposed by the SA Law Reform Commission in the above-mentioned report. However, it is submitted that the responsibility to accept the statement should be on the court rather than on the prosecutor. Such a responsibility falls outside the normal responsibilities of prosecutors, who are also often still inexperienced. On the other hand, determining all the factors that should impact the sentence falls squarely within the role of the sentencing court.

Clause 72

I fully support the decision (as explained in this provision) that no child may be incarcerated or sent to a residential facility unless a pre-sentence report has been obtained first.

Clause 73

This clause contains a few technical problems:

• Paragraph (1)(a) is potentially confusing, in that it refers to “sections 56(2)”, which is simply a subsection referring to sections 58(3) and (5). I suggest that the reference to section 56(2) be deleted here.
• The reference to clause 58(5) is slightly problematic when it comes to sentencing, because of the introductory part of that clause, which reads: “Level two diversion options apply to children where a court upon conviction of the child for the offence in question is likely to impose a sentence of imprisonment…”. This is acceptable (not ideal) in the case of diversion, but it is problematic when it comes to sentencing: a court which is likely to impose imprisonment is not going to switch to a community-based sentence. On which basis could it possibly do so? This means that the either the wording of clause 58(5) should be reconsidered, or that a different method of cross-reference, which would steer clear from this problem, should be found for clause 73(1).
• It is clear that clause 58(5)(a) refers to “community service”, which is defined in section 1 of the Bill, but in slightly different terms. It is suggested that the words “performance without remuneration of some service for the benefit of the community” be replaced with “community service”, in the interests of clarity.
• The relationship between correctional supervision, which is specifically dealt with in clause 76, and the other community-based sentences is unclear. Correctional supervision is a community-based sentence itself. It is defined as such in section 1 of the Criminal Procedure Act 51 of 1977. It is also a “[s]entence which allow[s] a child to remain in the community…”, the wording used to describe community-based sentences in clause 73(1). Clause 73(1)(b) should, on the face of it, include correctional supervision. However, it is only later that the reader realises that correctional supervision has its own provision. This amounts to an anomaly. I suggest that the Committee considers scrapping clause 73(1)(b). Clauses 58(3) and 58(5) contains such wide provision for all kinds of community-based sanctions already, that it is very hard to think of anything else that could reasonably be imposed.

Clause 74

I fully support the inclusion of restorative justice options as part of the provisions for sentences for child offenders. I leave it to experts in this field to comment on the details of the provisions that are introduced into clause 74 from clauses 61 and 62. Unfortunately, these details strike me as unnecessarily detailed and potentially prone to misunderstanding as a result.

Clause 75

I fully support this provision.

Clause 76

The inclusion of correctional supervision as one of the sentences that a court may impose on a child offender is essential. Clause 76 is strongly supported.

However, I have already expressed my concerns about possible confusion between correctional supervision, as community-based sentence, and the other community-based sentences in clause 73.

There is another logical problem in clause 76(a). It permits a court to impose “…a sentence of correctional supervision – in the case of a child who is 14 years or older, in terms of section 276(1)(h) or (i) of the Criminal Procedure Act.” However, section 276(1)(i) is not correctional supervision. It is imprisonment, from which the Commission of Correctional Services may release the prisoner on correctional supervision. The court has no role in deciding whether such release on correctional supervision will actually take place or not. That this is the case is abundantly clear from the Criminal Procedure Act, where section 276A(2) provides that punishment “shall only be imposed under s 276(1)(i) -- (a) if the court is of the opinion that the offence justifies the imposing of imprisonment, with or without the option of a fine, for a period not exceeding five years; and (b) for a fixed period not exceeding five years.” Our courts have also consistently held the sentence to amount to ordinary imprisonment (cf S v Slabbert 1998 (1) SACR 646 (SCA) at 647h-i; S v Rheeder 1997 (1) SACR 666 (T) at 674a-b; S v Stanley 1996 (2) SACR 570 (A) at 575f-g; S v Van der Westhuizen 1995 (1) SACR 601 (A) at 603i-j; S v Randell 1995 (1) SACR 403 (NC) at 404b-c; S v Msenti 1998 (1) SACR 401 (W) at 408b-d.) For example, in S v Slabbert 1998 (1) SACR 646 (SCA) the court specifically stated that where section 276A(2) refers to the “punishment” which shall not exceed five years, it means imprisonment. As a result, subclause (b) should be deleted, as should the age limitations in clause (a). Courts already have the authority to impose imprisonment in terms of section 276(1)(i) under clause 78, which deals with the imposition of imprisonment.

Clause 77

It is striking that the Bill contains copious guidelines and considerations that should be heeded

regarding the imposition of community-based sentences, restorative justice sentences and imprisonment. However, there is nothing on residential facilities. I request the Committee to give sentencers an indication of when this sentence should be considered appropriate. Between the lines it is clear that education will be the focus of the residential facility, but there is no indication of the severity of this punishment, or even whether it should be considered as punishment at all. It would be very useful if the legislature were to give such indications to sentencers, for several reasons, such as that inexperienced sentencers might have no idea when to impose this kind of sentence; that until a authoritative judgment is passed, there will be differences of opinion as to when this option will be appropriate. In including this option, the legislature should have a view as to why it is needed: my request is simply that the legislature put this view into words.

Clause 78

I fully support the inclusion of subclause (1), to remind everybody involved that it is essential, in terms of South Africa’s international and constitutional obligations, that imprisonment always be used as a measure of last resort only. I urge the Committee to consider also including the general principle that if imprisonment can not be avoided, that it then be imposed for the shortest period possible, for the same reason.

In connection with clause (2), I must, unfortunately, challenge the idea created in the Bill that life imprisonment is considered an acceptable sentence in terms of international obligations, in particular the UN Convention on the Rights of the Child. There is a logical problem with the sentence of life imprisonment as well. Since life imprisonment is the longest sentence that a court may impose, I fail to see how it could ever, at the same time, be the shortest period possible in the case of a child offender.

I urge the Committee to reconsider clause (3). As long as Act 105 of 1997 is in force, children would have to be sentenced in terms of its provisions anyway. The amendment to 51(6) of that Act is sufficiently clear in connection with the issue of children of 16 and older.

I urge the Committee to reconsider the rest of clause 78 as well. It is impossibly complicated. It is going to be desperately difficult and time-consuming for judges and magistrates to sort out all the fine details; it is going to be impossibly difficult for prosecutors to sort out in order to adequately inform the accused of the punishment he or she is facing if convicted (this information must, in terms of our current law and in the interests of a fair trial, be included in the charge sheet); it is going to be even more impossible if the charge sheet includes main and alternative counts. More importantly, I submit, is that the over-regulation contained in these provisions, read with the various Schedules, is undecipherable for any potential offender – legislation like this has no educative value as nobody will be able to form an overall idea of what is involved. In addition, “substantial and compelling circumstances” have until now been used as exception when the severe prescribed sentences in the minimum sentences legislation should not be applied. It does not follow that the same principles could be used for the opposite, namely as an exception when the more severe sentence of imprisonment is to be used. My argument is that it is not and that it will further confuse the issue and makes the law in this connection even less accessible to everybody.

If the Committee decides to go through with the detailed provisions, it should at least note the following problems with respect to Part I of Schedule 3, item 4 (b). In (i) mention is made of rape “in circumstances where the victim was raped more than once whether by the child in question or by any co-perpetrator or accomplice…”. It is a well-known fact in our criminal law that every rapist is a main perpetrator – there are no co-perpetrators and also no accomplices. A similar problem exists with respect to item 4(b)(ii), which refers to rape by “more than one person where such persons acted in the furtherance of a common purpose or a conspiracy…”. Neither common purpose nor conspiracy exists in our criminal law as far as rape is concerned (cf S v Kimberley 2005 (2) SACR 663 (SCA)).

Schedule 6

Amendments of Criminal Procedural Act

I support the amendment of s 276A(1). However, the amendment of s 276A(2) is not supported, based on my previous comment regarding describing the imprisonment that is referred to in section 276(1)(i) of the Act as correctional supervision.

The repeal of sections 290 and 291 is supported as a necessary change in view of the new sentencing options for children.

The amendment of section 297, through the deletion of subs (1A), is strongly supported.

The amendment of section 302, which would cause referrals to a residential facility lasting more than three months to be automatically reviewable, is strongly supported.

Criminal Law Amendment Act, 1997

It should be noted that section 51(3)(b) has already been deleted, by the Criminal Law Amendment (Sentencing) Act 38 of 2007.

The deletion of section 51(7) is supported. It does not make a difference anyway.

Subject to what has been commented above in connection with clause 78 of the Child Justice Bill, the amendment of section 51(6) of the Criminal Law Amendment Act, 1997 is supported. In particular, a reference to clause 78(1) is particularly useful to give greater clarity on the legislature’s acknowledgement that the imprisoning of children should be approached in a different manner to imprisonment for adults.

Closing comment

I appreciate the opportunity to present these written comments and wish the Committee all the best with the important task of passing the Child Justice Bill into legislation.

Signed: SS Terblanche

Department of Criminal and Procedural Law

PO Box 392

UNISA

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