Cape Bench again stresses importance of pre-sentence reports for youthful offenders

In two recent review judgments, judges from the Cape Bench have set aside sentences imposed on young offenders because of the absence of pre-sentences reports.

In S v Van Rooyen (High Court case number 01/5413), an offender who was 18 years old at the time of commission of the offence of housebreaking had been sentenced to 2 years imprisonment, of which 1 year had been suspended for four years. He was a first offender, unemployed, and still living with his parents. After querying the imposition of a sentence of direct imprisonment upon a juvenile offender, as well as the fact that it was imposed in the absence of a pre-sentence report, the court received a reply from the magistrate that she had considered calling for a pre-sentence report, but decided against it as an 18 year old is no longer considered to be a juvenile.

The High Court expressed some difficulty with this approach. First, the Court referred in some detail to the Convention on the Rights of the Child, which underlines 'the policy that as far as possible, children under the age of 18 years should as far as possible be dealt with by the criminal justice system in a way which takes account of their special needs', and to the seminal case of S v Z (featured in Article 40, August 1999 edition), which pointed to the difference between children aged under 18 years, and juveniles aged under 21 years in Correctional Services policy and legislation. Several aspects of, and provisions contained in, the proposed Child Justice Bill concerning sentencing and pre-sentence reports are also cited in the judgment. The Court concluded that when the Draft Child Justice Bill becomes law, pre-sentence reports will become mandatory in respect of offenders aged below 18 years, but that this does NOT mean that 'in all cases where the offender is 18 years or older, the court can dispense with the obtaining of a pre-sentence report'. The court concluded that in cases like the instant one, it is difficult to see how the magistrate could properly have determined an individualised punishment suitable for the needs of this offender without the benefit of a pre-sentence report.

As regards the content of the original sentence, the High Court maintained that despite the reasons for imposing direct imprisonment that were given by the magistrate concerned, there had been insufficient attention paid to the extremely prejudicial effects of imprisonment particularly upon youthful offenders, and nor had the magistrate given proper consideration to the need for monitoring and 'follow up' in respect of young offenders, as required in S v Z. The Court felt that at the very least, correctional supervision should have been considered, and set aside the sentence to enable the magistrate to call for and consider a report from a probation officer or correctional official.

Similarly, in R v B (High Court case number 0982/02), a sentence of three years imprisonment for theft of golf clubs from a motor vehicle imposed upon a 15 year old was set aside because of the failure to call for a pre-sentence report. The motivation for this failure, as provided by the sentencing officer, was that the child had told that court that he had received a five year prison sentence in regional court a couple of weeks earlier, and that a probation officer's report had been produced prior to the imposition of that sentence. This, the court held, did not exonerate a sentencing officer from getting full particulars of the accused, especially where there were obvious indications that his family circumstances were problematic, as no biological parents appeared in court, and he was assisted by an unrelated 'aunt'. Also, the Court pointed out that getting access to the probation officer's report in the earlier regional court case after being alerted by the High Court's query did not suffice, and, in any event, that report may not have been suitable or appropriate for the determination of a suitable sentence in this case. In summary, the sentencing officer had misdirected himself by imposing sentence on the basis of scant information on the accused's personal circumstances, which necessitated the case to be referred back for sentence.