PROSECUTOR’S AGREEMENT VITAL FOR DIVERSION OF JUVENILE OFFENDER

S v LR 2015 (2) SACR 497 (GP)

Juvenile offenders — Sentence — Diversion — Requirements of s 52(1)(e) of Child Justice Act 75 of 2008 — Court’s acceptance of child’s acknowledgement of guilt, without taking into account that prosecutor had not agreed to diversion, vitiating order of diversion.

The accused was a 16-year-old boy who was charged with culpable homicide. The offence arose out of his driving of a motor vehicle without a licence, overtaking two vehicles while it was unsafe to do so, and colliding head-on with a third vehicle, killing one of its occupants. His legal representative brought an application for the diversion of the matter in terms of s 69(1) of the Child Justice Act 75 of 2008. The application was opposed by the prosecutor, but the magistrate, after considering the defence’s submissions and the probation officer’s recommendation, ordered diversion of the matter for the accused to attend a life-skills programme.

Held, on review, that the presiding officer had misdirected himself by accepting the child’s acknowledgement of responsibility for the offence without considering the provisions of s 52(1)(e) of the Act, in that the prosecutor had not given his assent to the diversion. In the circumstances the order had to be set aside and the matter referred to the child justice court for trial.

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