S v Lewies - review (82/2021) [2021] ZAECGHC 49 (28 April 2021)

S v Lewies - review (82/2021) [2021] ZAECGHC 49 (28 April 2021)

The magistrate had sufficient information regarding the financial position of the child and her aunt, satisfying the requirements of section 74(1) of the Child Justice Act. However, the suspended sentence of a fine or imprisonment posed a risk that, if the child re-offended, she or her family would be unable to pay the fine, resulting in imprisonment. Given that this was her first conviction, the low value of the stolen goods, her remorse, and her improved family environment, imprisonment would be unjust. There were no substantial and compelling reasons to justify imprisonment. Therefore, the appropriate sentence was a caution and discharge.

Citation
[2021] ZAECGHC 49
Parties
Applicant: The State; Respondent: Esteline Lewies
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
28 April 2021
Case Number
82/2021
Procedural Posture
Review Application / Automatic Review From Magistrate's Court Under S 85(1) of the Child Justice Act
Outcome
Suspended sentence of a fine or imprisonment set aside and replaced with a caution and discharge.
Judges
J M Roberson, M J Lowe
Legal Topics
Child Justice Act, Sentencing of Children, Caution and Discharge, Ability to Pay Fine
Criminal Law Family and Children Child Justice Act Sentencing of Children Caution and Discharge Ability to Pay Fine

Case Brief

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Parties

The State

Applicant

Esteline Lewies

Respondent

Procedural Posture

Review Application / Automatic Review From Magistrate's Court Under S 85(1) of the Child Justice Act

Legal Issues

  1. 1 Whether the magistrate complied with section 74(1) of the Child Justice Act before imposing a fine on the child.
  2. 2 Whether a caution and discharge would have been a more appropriate sentence given the circumstances.
  3. 3 Whether imprisonment as an alternative to a fine is justified for a child offender in these circumstances.

Ratio Decidendi

The magistrate had sufficient information regarding the financial position of the child and her aunt, satisfying the requirements of section 74(1) of the Child Justice Act. However, the suspended sentence of a fine or imprisonment posed a risk that, if the child re-offended, she or her family would be unable to pay the fine, resulting in imprisonment. Given that this was her first conviction, the low value of the stolen goods, her remorse, and her improved family environment, imprisonment would be unjust. There were no substantial and compelling reasons to justify imprisonment. Therefore, the appropriate sentence was a caution and discharge.

Court Disposition

Suspended sentence of a fine or imprisonment set aside and replaced with a caution and discharge.

Orders

  • The suspended sentence of a fine of R300.00 or three months' imprisonment is set aside.
  • The accused is cautioned and discharged.