S v TENDAI & ANOR (JUVENILES) 1998 (2) ZLR 423 (H)

Flynote

Criminal procedure — trial — conduct of — juvenile accused — wherever possible a juvenile should be assisted by his parents or guardian, if not a lawyer

Criminal procedure (sentence) — general principles — juvenile offenders — correct approach to adopt generally and in relation to juveniles who have committed rape

Headnote

As the age of majority is 18, every person under 18 is a juvenile. However, this is too narrow a definition, as the law makes express provision for special treatment of young offenders up to age of 20. A juvenile or young offender is anyone up to the age of 20 years.

Where a juvenile is put on trial, he ought, wherever possible, to be assisted by his parents or guardians, if not by a lawyer. It is asking too much to expect a child to defend himself without any assistance in an alien environment of adversarial proceedings.

Magistrates must ensure that they obtain proper information on juveniles that they are sentencing. It is a sad reflection of the way in which we permit juveniles to be treated in our courts that the obtaining of a probation officer's report is generally regarded as an unnecessary technicality rather than as a virtually indispensable aid to proper sentencing.

It has always been regarded as wrong in principle to sentence a juvenile as an adult. The court should be exceedingly slow to impose on a juvenile the same punishment it would impose on an adult, rather than adopting some measure designed to correct juveniles. Where the offence is so serious that the court must consider imposing a prison sentence, the court should first obtain the report of a probation officer. The probation officer will place before the court vitally important information about the circumstances of the juvenile and his character and background. The court should pay the greatest regard to the probation officer's report as the probation officer is an expert in this field. While the court is not compelled to accept this expert's evidence at face value, where the evidence is honestly given and supported by sound reasons, which are not contradicted in evidence, the court should be slow to disregard his opinion. Where juvenile offenders have been attending school, it may be possible to obtain further information about the offenders through an officer of the psychological services unit in the Ministry of Education.

Just as the probation officer's report is vitally important for the proper formulation of a scheme of management for a juvenile offender, so too is the involvement of the juvenile's family in the management of the juvenile. It is enormously important, before sentencing a juvenile, to ascertain whether the juvenile has a stable family environment and family members who might be able to take some responsibility in his sentence and his rehabilitative process.

As regards sentencing of juvenile rapists, there has been recent research in Zimbabwe into the management of sexual offenders, particularly juvenile sexual offenders. This research shows that sexual offenders are likely to repeat their offences many times and that supposed deterrent sentences are unlikely to curb their sexual misconduct. However, a programme of management and counselling, particularly of juvenile offenders, does offer some prospect of bringing about reformation. If sexual offenders can be reformed when they first start committing such offences, many potential child and women victims will be saved. This research suggests the advisability of an altered approach towards sentencing of juvenile sexual offenders which lays emphasis upon trying to reform such offenders.

A magistrate sentencing a juvenile who has committed a rape has various options available to him:

• the sentence most commonly imposed upon first-time juvenile rapists is corporal punishment. However, even if this sentence is combined with the suspended sentence of imprisonment, it is unlikely to bring about the desired end result of putting a stop to the juvenile's sexual misconduct. This punishment is likely to have counterproductive effects in respect of juvenile rapists.

• the next most frequently imposed sentence is imprisonment. If there are no programmes of counselling and management in prison, this sentence does not address in any way the primary objective of rehabilitation. An adult prison environment is unsuitable for juveniles and imprisonment of juveniles should be a last resort. Incarceration in a prison for young adults is less objectionable. However, the best option would be a juvenile "boot camp", combining enforced discipline with education, training and counselling. Although imprisonment will achieve temporary prevention, when it ends, the offender will be released back into the community without any supervision and he is likely to commit further sexual offences. In serious cases of rape, some period of imprisonment may be unavoidable. However, lengthy imprisonment may simply turn young first-time sexual offenders into hard-core, repeat offenders who are likely to abuse many more women in the course of their lives. Where based on appropriate reports and recommendations there is a real prospect of rehabilitation of the juvenile offender, the court should seek to impose a shorter term of imprisonment combined with a suspended sentence on conditions which will ensure proper counselling and probation of the offender on release.

• another option for the magistrate (or for the juvenile court to which the juvenile has been referred) is to sentence the juvenile to placement in a juvenile institution. Regrettably, due to economic constraints, places in such institutions are extremely limited. In such institutions offenders receive training and counselling and on release they are still subject to supervision by the institutions for a period of time.

• finally, there is an option of a suspended prison sentence. Either the whole or a part of the sentence may be suspended. This is intended to provide a measure of individual deterrence. The recent research suggests that individual deterrence may not work in respect of sexual offenders. However, more salutary results could possibly be achieved by attaching appropriate conditions of suspension. An imaginative magistrate, properly armed with the report of a probation officer, and such other information as is available, should be able to impose conditions of suspension which bring about the continued supervision of a juvenile offender, whether or not he spends some time in prison. For instance, he might impose conditions that lead to a period of probationary supervision, coupled with regular counselling, under the immediate supervision of a community service officer with the ultimate supervision of a probation officer.

A national committee should be established to co-ordinate the management of juvenile offenders, similar to the national committee on community service, and with comparable objects and functions.