CYC-Online 84 JANUARY 2006
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Thinking outside the box

Amanda Bezuidenhout

It seems there can be no real hard and fast rules for dealing with young offenders. Anyone with children of their own will have come to realise that a child's maturity level is not guaranteed by their age in years. Setting a cut-off age for when a child becomes a “juvenile” (and the implied criminal responsibility that goes with that) is not as obvious as it may seem at first. Consequently, when it comes to the law dealing with young offenders, it is possible that any ham-fisted approach will likely result in a worse outcome than intended by the spirit of the law. A young offender could actually become a victim of the law itself.

On the other hand, young offenders can be responsible for some serious offences. Around half of the cases heard at Pietermaritzburg's D court (the juvenile court) are housebreaking and robbery cases – and the public demands justice. A thorny issue, to be sure. The following is an indication of how Pietermaritzburg's juvenile court deals with young offenders.

An innovative approach
If children who come before the court are between 7 and 14 years old, the court will first have an informal inquiry where the accused and his or her guardian are required to inform the court whether he or she has appeared in court before. If not, it is determined whether they have ever been referred to NICRO. If this is the first time that a child has appeared in court, and if they have never been referred to a diversion programme, then it is likely that they will be sent to complete one of NICRO's programmes “the aim being to teach the young offender the consequences of his or her actions. However, if the child has appeared in court before, and particularly if they have previously completed a NICRO diversion programme, the case can be converted to a Children's Court inquiry, where appropriate.

Restorative justice and diversion in action
The Pietermaritzburg juvenile court mostly deals with young offenders aged 14 years and older. The largest group of children in trouble with the law tends to be 16 to 17-year-old boys. The crimes they commit are mostly housebreaking, theft, robbery and assault with the intent to inflict grievous bodily harm. And yet, even with this age group, diversion (as opposed to imprisonment) is still the preferred action whenever possible.

Alternatives for first offenders
For first offences that could be considered “petty” (shoplifting or non-violent crimes), diversion to a NICRO programme is the usual route taken by the court. For first offenders who have been convicted of a crime like housebreaking with the intent to steal and theft or robbery, alternative sentence options include postponing the passing of sentence with a condition that the offender is placed under the supervision of either NICRO or the Department of Welfare. The offender is further required to attend certain programmes and perform community service. This is the preferred course of action, especially if there were no serious circumstances attached to the crime and if the stolen property was recovered. The young offender is further warned in the presence of their guardian that, should they disobey or not co-operate, they will be referred back to court and will be sentenced. This approach hands power back to the young offender’s guardian and in the almost three years that I have presided in the juvenile court, only approximately four young offenders have been referred back to court after being dealt with in this way.

In other cases, where the offender admits guilt and is prepared to fully take responsibility for his or her actions, and if circumstances allow, mediation is often more effective, especially where the victim and the offender know each other. A lot of these cases shouldn’t even have come to court, for example, a window broken by a neighbour's child or a fight at school. Here the prosecutor arranges a meeting between both the offender and his or her guardian and the victim and his or her family. The prosecutor and the legal representative for the offender act as facilitators, trying to get the two parties together to talk the issue through. Matters are often sorted out in this way, resulting in the withdrawal of the criminal charge against the offender with the specific consent of the victim.

Often the offender is required to compensate the victim for his or her loss, and in some cases a genuine apology and obvious remorse on the part of the offender are sufficient to resolve the matter. This form of restorative justice (envisaged in the draft of the Child Justice Bill) is applied in the Pietermaritzburg juvenile court in relation to less serious cases (on an informal basis at this stage), with very positive results. In January 2005, D court’s outstanding roll was 272 cases, however after the adoption of this new approach as discussed above, the roll at the beginning of October 2005 was standing at 76 cases.

The value of support systems
If one applies one’s mind to it and can manage to build up a support system of additional resources (such as trained facilitators, mechanisms to ensure fairness for all the parties involved and the enforcement of the agreements reached by the parties in these mediation processes), there seems to be no reason why this process should be restricted to cases of petty offences. Obviously, in the case of more serious matters, much depends on the circumstances of each individual case when determining whether such a restorative approach would be suitable and appropriate.

Alternative sentencing
The juvenile court in Pietermaritzburg has also made arrangements with NICRO so that a convicted juvenile offender can be referred to NICRO for alternate sentencing options. In addition, and depending on the seriousness of the offence committed, the young offender may be required to perform anything between 50 and 150 hours of community service work. Standing arrangements with the Traffic Department, SAPS Horse Unit and others were put in place so that their facilities are at the disposal of NICRO to allow juvenile offenders to perform tasks at these places under supervision, in addition to the life skills programmes they are required to attend and participate in. This ensures that the offender is punished, yet this is done in a very positive and innovative manner where the offender is also given the opportunity to learn from his mistakes.

Empowering the probation officer
In each case after the juvenile accused is convicted, before a sentence is passed, the child and his or her guardian are referred to the probation officer stationed permanently at the court for the drafting of a pre-sentence report. Initially it was found that these reports were not adequate “a pro forma form was used and the recommendation was always a suspended sentence. The probation officer was then called in and training was provided to her on an informal basis to make her aware of and request her to consider various other sentencing options. She was also referred to the local NICRO office to familiarise herself with the programmes they offer.

Liaising with all role-players
In addition, a juvenile justice forum meeting is held where all the roleplayers in the juvenile court meet once a month. The participants include the magistrate and prosecutor of the juvenile court, officials of the Department of Welfare, and representatives from each police station within the court’s jurisdiction, from Correctional Services, as well as from other institutions like NICRO, FAMSA, SANCA, Lawyers for Human Rights, the Legal Aid Justice Centre, Pata Place of Safety and Greenfields Place of Safety.

Problems experienced by each of these role-players are discussed at these meetings and solutions are found. This has led to a very close and good working relationship between all those working with juvenile justice in the area. The forum has also led to the drastic drop in the number of not only outstanding cases on D court’s roll, but also of juveniles kept in custody awaiting trial.

The law is by definition a set of rules and consequences, but when it comes to young offenders, the lines can become blurred. How a court deals with one 14-year old, for instance, can differ significantly from how it deals with another. Perhaps more than in any other court, when it comes to dealing with young offenders, the presiding magistrate can play a proactive role in ensuring that appropriate measures have been put in place for children.

This feature: Bezuidenhout, A. (2005) Thinking outside the box. Article 40, Vol.7, No.3, pp.6-7

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