The Constitutional Court has put an end to minimum sentencing for children aged 16 and 17. This will protect children from being subject to harsh prison sentences without their individual circumstances being taken into account.
Minimum sentence legislation sets harsh jail sentences for perpetrators of severe and violent crimes. Applying minimum sentencing to 16- and 17-year-olds was made possible through a 2007 sentencing amendment Act.
The Centre for Child Law, which had been investigating cases of children sentenced to life imprisonment, challenged the statute, and the matter was eventually referred to the Constitutional Court. The court on Wednesday ruled that the minimum sentencing legislation infringed Section 28 of the Constitution, which protects the rights of children.
Judge Edwin Cameron said there is a good reason why children should not be subject to minimum sentencing: ”Children are less mature and more susceptible to influence, whim and frailty.” He said it was not fair or just to apply the same sentencing regime set out for adults to children under 18.
The court also found that minimum sentencing discouraged judges from considering sentencing options other than incarceration for children, and encouraged longer prison sentences.
Attorney Carina du Toit, of the Centre for Child Law, said minimum sentencing takes away a judge’s discretion in sentencing. ”Where the crime is linked to a particular sentence, they have no choice but to give that sentence.” Although it is still possible for children to receive harsh sentences, including life in prison, Du Toit said Wednesday’s ruling would allow judges to make more ”individualised” sentences depending on the circumstances of the case.
The Centre for Child Law had sought ”consequential relief”, whereby all children sentenced under the amended Act would have their sentences reconsidered. But Judge Cameron said an order ”as sweeping as that” should not be granted. Instead, the court ordered the government to identify all children sentenced under the amended Act, so their cases could be appealed or reviewed.
Du Toit said because they had already been sentenced, the affected children ”would have to go on appeal and go through all the steps in court”.
The court ordered that the centre be provided with the names of the children affected by the ruling before September 13, but Du Toit said this would be difficult to carry out. ”It’s an enormous job, so I’m not sure if it will happen [in time],” she said.
According to Du Toit, tracking down the children could be difficult. ”Each court that has sentenced a child, each regional court, will have to find records of the child, when they were sentenced, which prison they were sent to. It’s quite a big job.”
She said the centre’s next step would be to help publicise the judgment ”so that people don’t go on tomorrow and sentence someone”.