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

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CA&R: 82/2021

DATE DELIVERED: 28/04/2021

In the matter between:

THE

STATE

and

ESTELINE

LEWIES

REVIEW

JUDGMENT

ROBERSON J:

[1] This matter came on automatic review from the Magistrate’s Court, Graaff Reinet, in terms of s 85 (1) of the Child Justice Act 75 of 2008 (the CJA). The accused, a 17 year old girl, whom I shall refer to as the child, was charged with theft of toiletries to the value of R28.98. She was legally represented at her trial. She pleaded guilty and was sentenced to a fine of R300.00 or three months’ imprisonment, wholly conditionally suspended. The conviction is in order.

[2] Prior to sentencing, a pre-sentence report was compiled by a probation officer from the Department of Social Development. The probation officer’s report contained the following information. The child was born on 1 July 2003. She grew up in the care of her mother, who abused alcohol and neglected the child and her sibling. The child left school after grade 7. In 2015 the child was removed from her mother’s care and placed temporarily in a child and youth care centre, from where she was placed with prospective foster parents. She did not adjust to the placement and displayed behavioural problems. She later absconded and went to live with her family. Following intervention by the child and youth care centre, she returned there but absconded and returned to her family.

[3] According to the report, in 2018 the child “conflicted with the law” (presumably she committed an offence) and was assessed by a probation officer. In September 2019 preliminary enquiry was held in terms of the CJA. It having appeared to the court that the child was in need of care and protection, she was referred to the Children’s Court for an enquiry in terms of the Children’s Act 38 of 2005. While awaiting placement the child re-offended. Thereafter she was arrested on several occasions and after the last offence, preceding the present one, she was referred to a child and youth care centre for a period of six months, for what was termed a level two diversion, in terms of the CJA. She completed this diversion programme successfully in April 2020. The current offence was committed on 2 December 2020.

[4] After her arrest for the present offence, the child was released to parental care but asked her maternal aunt if she could live with her because her mother was abusing alcohol. Her aunt agreed and the child currently lives with her and other family members. The child has a good relationship with her family, especially her aunt, and the aunt reported that the child is disciplined and obeys all house rules. According to the aunt the child consumes alcohol and smokes dagga but does not misbehave. According to the probation officer the child co-operated with her and takes responsibility for her actions and has expressed remorse.

[5] The child does not work. Her mother receives a child support grant for the child but it is not clear from the report if the mother uses it for the benefit of the child. The probation officer said that the child is dependent on her aunt for support. The aunt in turn is dependent on her own siblings and the child support grants she receives for her own children.

[6] When matter first came before me I addressed certain queries to the magistrate. It did not appear from the record that she had held an enquiry in terms of s 74 (1)(a) of the CJA. Section 74 (1) provides:

“(1) A child justice court convicting a child of an offence for which a fine is appropriate must, before imposing a fine-

(a) inquire into the ability of the child or his or her parents, an appropriate adult or a guardian to pay the fine, whether in full or in instalments; and

(b) consider whether the failure to pay the fine may cause the child to be imprisoned.”

[7] From the available information it appeared that neither the child nor her aunt was able to pay a fine, and I was concerned that if the suspended sentence was at some time in the future put into operation, the fine would not be paid and the child would have to go to prison.

[8] I further asked the magistrate if a caution and discharge would have been a more appropriate sentence, considering the low value of the stolen property. Both the prosecutor and the defence attorney submitted that a caution and discharge would be suitable. They addressed the child’s impoverished circumstances and the prosecutor referred to the fact that the child’s mother had not played a supportive role in her life.

[9] The magistrate provided a meticulous response to my queries. With regard to compliance with s 74 (1) of the CJA she pointed out that the financial position of the child and her aunt was covered in the probation officer’s report as well as by the address of the child’s attorney. I accept that the magistrate had sufficient information before in order to satisfy the purpose of s 74 (1) of the CJA and that any further enquiry would have been superfluous. The magistrate acknowledged that neither the child nor her aunt could afford to pay a fine as at the date of sentence. She took into account the fact that if the fine was not paid the child would be imprisoned, and that is why she suspended the sentence. The magistrate further agreed that the value of the stolen property was low and accepted that the child appeared to display genuine remorse.

[10] In considering whether a caution and discharge would have been a more appropriate sentence, the magistrate referred to one of the objectives to be achieved when sentencing young offenders, as contained in s 69 (1) of the CJA, namely a sentence which encourages the child to understand the implications of and be accountable for the harm caused. The magistrate referred to the fact that the child had in the past been arrested on several occasions, and had committed the current offence despite having attended a diversion programme. The magistrate expressed the view that it was incumbent on her to impose a sentence which would have the effect of deterring the child from committing further offences, and which would afford the child an opportunity to take accountability for her conduct and rehabilitate herself. A caution and discharge, so the magistrate stated, would not achieve the objectives of sentencing as envisaged in the CJA.

[11] I cannot fault the magistrate’s stated purpose in sentencing the child, given the child’s past conduct. She acted in the interests of the child. My overriding concern however is that if the child re-offends within the period of suspension, there is a strong possibility that neither she nor any family member would be able to pay the fine. She would therefore have to serve the prison sentence. Taking into account that this is her first conviction, the low value of the stolen goods, her expression of remorse, and that she appears now to have a more stable family environment, I am of the view that this would be unjust. In terms of s 77 (3) (b) of the CJA a sentence of imprisonment may only be imposed on a child over the age of 14 years if there are substantial and compelling reasons for imposing such sentence. In all the circumstances of this matter, I do not think there are such reasons.

[12] The following order will issue:

The suspended sentence of a fine of R300.00 or three months’ imprisonment is set aside and substituted with the following sentence:

“The accused is cautioned and discharged.”

_______

J M ROBERSON

JUDGE

OF THE HIGH COURT

Lowe J

I agree

M J LOWE