S v CS 2016 (1) SACR 584 (WCC)
Child — Sentence — Imprisonment — Fifteen-year-old accused, convicted of cold-blooded murder, not showing any remorse and refusing to take responsibility for actions — Conduct during detention in child and youth care centre awaiting trial militating against sentence of compulsory residence in such centre — Sentence of eight years’ imprisonment imposed.
The appellant was 15 years old when he was convicted in a regional court of murder; possession of a 9 millimetre semi-automatic firearm; and possession of nine rounds of 9 millimetre ammunition. The evidence at the trial was to the effect that he had shot the deceased at point-blank range with the firearm. He showed no remorse, maintained his innocence and refused to take responsibility for his actions. Whilst detained in a place of safety awaiting trial, he often failed to attend school. The court sentenced him to 10 years’ imprisonment.
On appeal it was contended that the court had erred in failing to give consideration to a sentence of compulsory residence in a child and youth care centre.
Held, that in terms of s 77(5) of the Child Justice Act 75 of 2008 (CJA) a child justice court had to take into consideration the number of days that the child had spent in prison or a child and youth care centre prior to the sentence being imposed. As the magistrate had failed to take this into account (amounting to almost 10 months), the sentence was not in accordance with the provisions of the CJA and stood to be interfered with on appeal.
Held, further, that the appellant’s past experience at a child and youth care centre, coupled with the seriousness of the offence and his lack of remorse and accountability, militated strongly against a sentence of compulsory residence in such a centre. Additionally, given that in terms of s 76(2) a child could only be so sentenced for a period not exceeding five years, or for a period not exceeding the date on which the child offender in question turned 21, such a sentence would be too lenient.
Held, further, that in the present circumstances a sentence of direct imprisonment ought only be imposed as a measure of last resort, and a sentence of 10 years’ imprisonment was not the shortest appropriate sentence, considering that the court a quo had not taken into account the period that the appellant was in custody awaiting trial. In the circumstances a sentence of eight years’ imprisonment was appropriate.