Court reveals reasons for releasing San girls

THE direct term of imprisonment imposed on two teenage San girls in the Tsumkwe Magistrate’s Court after they admitted to a charge of housebreaking and theft some three months ago was “disturbingly inappropriate and induced a sense of shock”, the High Court said in a review judgement on the girls’ case on Friday.

The case of the two girls, who were sentenced to six months’ imprisonment each without the option of a fine or any alternative sentence on December 1, drew an immediate reaction from High Court Judge President Petrus Damaseb when it came to his attention through a front-page report in The Namibian on February 22. The Judge President launched an investigation through the High Court Registrar, obtained a copy of the case record via fax, and issued a warrant for the girls’ immediate release.The reasons for that intervention were given on Friday in a review judgement that was handed down by the Judge President.The judgement was written by Judge Sylvester Mainga, with Judge President Damaseb having agreed with his ruling.The two girls, aged 15 and 17, pleaded guilty before Magistrate André le Roux to a charge of housebreaking with intent to steal and theft on May 30 last year.They admitted that they broke into a house at Mangetti Dune in the Grootfontein District between December 18 and 20 2005.They gained entry to the house by breaking a window, and stole a host of items – mostly pens and pencils, but also a cellphone and some items of jewellery, from the house.The loot was valued at about N$1 400.It was reported that the house belonged to a teacher, and that the girls had also cooked some food inside the house.After the girls’ guilty plea, Magistrate Le Roux postponed their case for pre-sentence reports on both young offenders to be compiled by social workers – a step that the Magistrate should be commended for, Judge Mainga commented in his judgement.The reports recommended that both girls, who were found to come from impoverished homes, be put through a normal trial, but also recommended that they be given a suspended sentence – advice that the Magistrate decided not to follow, Judge Mainga also noted.Before they were sentenced, each of the girls told the court they would be able to pay a fine.The court did not probe this offer or their actual ability to pay a fine, but opted instead to sentence them to a direct six-month jail term each, Judge Mainga recounted.He commented that the court misdirected itself when it failed to properly investigate the personal circumstances of the girls.”While punishment is pre-eminently a matter for the discretion of the trial court, this is a case where the Magistrate did not exercise his discretion judicially and properly,” the Judge remarked.Quoting from past court judgements on the sentencing of juvenile offenders, he stated: “(T)he State should not punish a child of tender years as a criminal and stamp him as such throughout his after life, but it should endeavour, by taking him out of his surroundings, to educate and uplift him and to make him gradually understand the difference between good conduct and bad conduct.”The underlying principle with the sentencing of juveniles “is that child offenders should not be detained except if the detention is a measure of last resort, in which case the child may be detained only for the shortest appropriate period of time,” Judge Mainga stated.”When imposing sentence on a child, the child’s best interest is of paramount importance.”A sentence of six months’ imprisonment, taking into account the two girls’ age and all the circumstances of the case, “was disturbingly inappropriate and induced a sense of shock”, the Judge commented.The girls’ case was sent to the High Court on review in early January already, but on the covering sheet of the case record it was wrongly stated that the girls had been sentenced to pay a fine of N$1 000 or serve one year’s imprisonment.Relying on that wrong information, Judge Louis Muller confirmed the sentence – a step that Judge Mainga and Judge President Damaseb have now set aside.They instead replaced the sentence with one of 84 days’ imprisonment.Judge Mainga explained: “Ordinarily we would not have confirmed a custodial sentence but because it has been served, we have very little choice; but we emphasise that taking into account the personal circumstances of the accused, the crime and the interest of society, a custodial sentence was inappropriate.It is a case where the Magistrate should have considered other options of sentencing.”The Judge President launched an investigation through the High Court Registrar, obtained a copy of the case record via fax, and issued a warrant for the girls’ immediate release.The reasons for that intervention were given on Friday in a review judgement that was handed down by the Judge President.The judgement was written by Judge Sylvester Mainga, with Judge President Damaseb having agreed with his ruling. The two girls, aged 15 and 17, pleaded guilty before Magistrate André le Roux to a charge of housebreaking with intent to steal and theft on May 30 last year.They admitted that they broke into a house at Mangetti Dune in the Grootfontein District between December 18 and 20 2005.They gained entry to the house by breaking a window, and stole a host of items – mostly pens and pencils, but also a cellphone and some items of jewellery, from the house.The loot was valued at about N$1 400.It was reported that the house belonged to a teacher, and that the girls had also cooked some food inside the house.After the girls’ guilty plea, Magistrate Le Roux postponed their case for pre-sentence reports on both young offenders to be compiled by social workers – a step that the Magistrate should be commended for, Judge Mainga commented in his judgement.The reports recommended that both girls, who were found to come from impoverished homes, be put through a normal trial, but also recommended that they be given a suspended sentence – advice that the Magistrate decided not to follow, Judge Mainga also noted.Before they were sentenced, each of the girls told the court they would be able to pay a fine.The court did not probe this offer or their actual ability to pay a fine, but opted instead to sentence them to a direct six-month jail term each, Judge Mainga recounted.He commented that the court misdirected itself when it failed to properly investigate the personal circumstances of the girls.”While punishment is pre-eminently a matter for the discretion of the trial court, this is a case where the Magistrate did not exercise his discretion judicially and properly,” the Judge remarked.Quoting from past court judgements on the sentencing of juvenile offenders, he stated: “(T)he State should not punish a child of tender years as a criminal and stamp him as such throughout his after life, but it should endeavour, by taking him out of his surroundings, to educate and uplift him and to make him gradually understand the difference between good conduct and bad conduct.”The underlying principle with the sentencing of juveniles “is that child offenders should not be detained except if the detention is a measure of last resort, in which case the child may be detained only for the shortest appropriate period of time,” Judge Mainga stated.”When imposing sentence on a child, the child’s best interest is of paramount importance.”A sentence of six months’ imprisonment, taking into account the two girls’ age and all the circumstances of the case, “was disturbingly inappropriate and induced a sense of shock”, the Judge commented.The girls’ case was sent to the High Court on review in early January already, but on the covering sheet of the case record it was wrongly stated that the girls had been sentenced to pay a fine of N$1 000 or serve one year’s imprisonment.Relying on that wrong information, Judge Louis Muller confirmed the sentence – a step that Judge Mainga and Judge President Damaseb have now set aside.They instead replaced the sentence with one of 84 days’ imprisonment.Judge Mainga explained: “Ordinarily we would not have confirmed a custodial sentence but because it has been served, we have very little choice; but we emphasise that taking into account the personal circumstances of the accused, the crime and the interest of society, a custodial sentence was inappropriate.It is a case where the Magistrate should have considered other options of sentencing.”