Child Justice Bill: [B49-2002]

Further written comments: Prof SS Terblanche

Background

During oral representations on 12 February 2007, the Committee proposed that I provide additional input concerning guidelines for the imposition of the “sentence of compulsory residence in residential facility” (cl 77 of the Bill). I claimed in my written comments that there are no guidelines in the Bill as to the imposition of this sentence, in contrast to wide-ranging guidelines with respect to the imposition of sentences of restorative justice and imprisonment, to name only two examples.

Looking into the matter again, I realised that my original statement was in fact incorrect and that it should be withdrawn. There are guidelines for the imposition of compulsory residence in clause 70(3), which I forgot about when looking at clauses 76 and 78. I apologise for this and wish to withdraw the statement that the Bill contains no guidance regarding the guidelines and considerations that a child justice court should take into account when sentencing a child to reside in a residential facility.

However, since the “factors to be considered” are the same for residential facilities and imprisonment, I nevertheless take this opportunity to make further representations with respect to guidelines to distinguish compulsory residence in a residential facility from imprisonment, from a legislative perspective.

The Law (Reform) Commission’s discussions

The Law Commission (as it then was) discussed the position of the current reform schools in some detail, both in its Discussion Paper: Juvenile Justice (Nov 1999) and its Report: Juvenile Justice (Jul 2000 – mainly pars 10.8 to 10.10). It is clear from these discussions that there was general support for the retention of an institution where child offenders could be detained, but then with a specific focus on the education of those children. The proposal to do away with the term “reform school” has more to do with the stigma attached to reform schools and current international usage than with an intention to break away from the original intention with which reform schools were established.

The factors included in clause 70(3)

The factors mentioned in clause 70(3) of the Child Justice Bill should be taken into consideration by the court both when imposing compulsory residence and when imprisonment. These considerations are largely based on clause 90 of the Law Commission’s draft bill (see the Report). It is important to consider the usefulness of each of these considerations.

The seriousness of the crime

It is trite that the crime seriousness is an important consideration with the sentencing of every single offence and every kind of sentence. Alternative sentences are only appropriate when the crime falls within the lower range of crime seriousness. Clearly, compulsory residence should only be imposed when the crime falls somewhere in the range of more serious crimes. Imprisonment should be limited to the most serious crimes. Obviously, this range of crimes is a continuum and one cannot draw fixed lines anywhere, but it is submitted that the legislation should get across the idea that compulsory residence is aimed at serious crime. This is the current position with respect to reform schools, where it is acknowledged as a severe sentence which removes the child from their community and takes away their freedom.

The protection of the community

The protection of the community is clearly a major consideration when it comes to the imposition of imprisonment. However, it is submitted that such protection should not be a major consideration when compulsory residence is concerned. The protection of society was not discussed in the Law Commission’s report in this connection, neither is it a major factor in the imposition of reform schools. Rather, the aspect of detention is aimed at ensuring the child’s presence for the various educational programs presented at the facility, as well as punishment in the form of restriction of freedom of movement.

The severity of the impact on the victim

The heading to clause 71 of the Bill (“Impact of offence on victim”) indicates that there is a link between that clause and this factor. Perhaps this is fine…

The previous failure of the child to respond to non-residential alternatives

This is a useful guideline. Clearly, a child who has previously failed to comply or “respond” to non-residential options is more likely to end up in a residential facility. However, this should never be a factor by itself, but should be balanced with the other factors and the legislation should require such balancing. Perhaps this is implicit.

The desirability of keeping the child out of prison

Clearly, this factor cannot stand as far as residential facilities are concerned. The question is whether the point should be made in legislation that it remains desirable to sentence the child to non-custodial sentence whenever possible. It is submitted that little is to be gained by such a statement.

Additional factors

Education

Since the main aim of compulsory residence in a residential facility is the education of the child, this factor should be specifically mentioned.

I have not been able, in the short time at my disposal, to find analogous measures in the legal systems of other countries. The closest I have been able to find is the youth sentence as applied in German Law. Certainly, neither the Canadian Youth Criminal Justice Act (2002, c 1) nor the New Zealand Children, Young Persons, and Their Families Act 1989 No 24 contains any sentence with a residential requirement where education is the main aim.

Example of possible wording.

In section 17(2) of the German Juvenile Justice Act (Jugendgerichtsgesetz) reads as follows:

The court imposes the youth sentence when, based on the harmful tendencies of the juvenile, as it emerged from the crime, non-residential options will not suffice or when punishment is required due to the extent of his or her blameworthiness.

§ 18 Duration of youth sentence

(1) The youth sentence lasts at least six months and at most five years. If the crime is so serious that it is punishable by more than ten years’ imprisonment in terms of the general criminal law, the maximum is ten years. Die sentencing frameworks of the general criminal law is not applicable.

(2) The youth sentence is executed in such a manner that the required educational effect is achievable.

Execution of sentence

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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