THE SENTENCING
PROCESS TO THE CONVICTED JUVENILE OFFENDER: THE JUDICIAL OFFICERS NEED
ATTENTION
Kevin Mandopi1
1 Lecturer -
Institute of Judicial Administration Lushoto, Advocate of the High Court of
Tanzania
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ABSTRACT |
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Keywords: Juvenile; Judicial, Offender; Punishment, Theories; |
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The child in some occasion perpetrates criminal
offences. Such child is taken to court to answer the accusation. In case the
court convicts him/her enters the sentence. However, before imposition of the
sentence the court has responsibility to find out the best theory of
punishment. This is with a view of
rehabilitating the offender. However, it has been noted that, courts overlook
this condition and imposes sentences which deteriorate the welfare of the
child by disregarding the theories of punishment and important factors
required to be considered before the imposition of the sentence. This article
discusses the theories of punishment and the important factors required to be
considered by the court before the imposition of the sentence to the
convicted juvenile offender. This is with a view of calling attention to the
judicial officers to utilise such theories and factors in the course of
imposition of sentences to the juvenile for the purpose of rehabilitation
process. Publisher All
rights reserved. |
INTRODUCTION
The convicted juvenile offender needs treatment that
takes into account his immaturity by protecting him from degrading punishments.
The court imposes correctional measures to the juvenile immediately after the
declaration of the conviction has been founded. Joseph (1995) puts forward that
the rationale for calling the juvenile offender to the correctional sentence is
to rehabilitate and not to punish the offender. Zehr (2005:17) provides that:
“Before pronouncing sentence, however, the
judge methodologically enumerated the usual goals of sentences: the need for
retribution, the need to isolate offenders from society, the need to
rehabilitate, the need to deter. He noted the need for offenders to be held
accountable for their actions.”
In sentencing the offender the court
considers the need for retribution, deterrence, prevention, and rehabilitation
to the offender. The Legal and Human Rights Centre (2003) is of the view that
non-custodial sentences should rehabilitate the offender rather than punishing
him through the imposition of custodial sentences. The correction process
begins immediately after the court has convicted the offender where the
sentencing process begins by determining the best theory of punishment. Safari
(2010) says that the prosecution and the defence sides are given an opportunity
to provide the court with relevant information that will enable the court to
impose the pertinent sentence. Normally, this stage is known as the mitigation
stage where a number of mitigation information is given to the court in order
to impose an appropriate sentence that encourages the rehabilitative effect to
the juvenile. The court scrutinizes such information with a view of imposing
the right sentence using the best theory of punishment and abiding to the relevant
factors through which promotes the rehabilitation process.
THEORIES FOR
SANCTIONING CONVICTED JUVENILE OFFENDERS
The process of sanctioning the juvenile offender for
misbehaviour committed is not new in the world and Tanzania in particular.
Paranjape (2001) says that misbehaviour and punishment are just as old as the
society itself, and they are conducted by every society in the world. Thus,
criminal law takes its role to take into sanctions the culprits through the
theories of deterrent, preventive, reformative, and retributive. Therefore, the
main intention of punishment is generally deterrent, retributive, preventive,
and reformative means to the juvenile offender. The English case of R. v. Sergeant ((1974) 118 SJ 753)
provides the rationale for sentencing to include retribution against the
offender, preventing the commission of future crimes, and providing the
rehabilitation against the offender so as he should not commit crimes in the
future, especially when the juvenile reaches the majority age.
In most of the
countries to date there are laws set to stipulate the rights of the child’s
welfare and make provisions with respect to handling a juvenile when he is in
conflict with the law. Tanzania for instance, has the Law of the Child Act,
2009. This law aims at maintaining law and order in the society by making sure
that the child is protected. When the juvenile has committed an offence in the
society, people normally take the child to the police who later hand him to the
court for adjudication. The society does this to show that it disapproves
juvenile offences. According to Mushanga (1998) this is done to restore the
harmony that has been destroyed by the action of the child. When the child is
found guilty of the offence charged, the process ends by the court imposing the
sentence against the child. Srivastava (2005: 94) states that:
“The object of punishment
is the prevention of crime, and every punishment is intended to have double
effect, viz., to prevent the person who has committed a crime from repeating
the act or omission, and to prevent other members of the community from
committing similar crimes. The object of punishment being preventive, the penal
policy of a State should be to protect the society.”
The imposition of
sentences to the convicted juvenile offender is always done with a view of
stopping the perpetration of acts classified as crimes because they are
regarded as damaging the society. The sentences imposed also aim at threatening
the juvenile so that cannot commit other such offences. The imposition of
sentences to juveniles is believed to be one of the devices to which the
society resorts to harmony or to repair the damage done to the society. The
court normally imposes sentences for protecting the society from misbehaviours
and undesirable elements. Normally, this is done through punishing those who
have offended the society, deterring potential offenders, preventing the actual
offenders from committing further offences, and reforming them to an extent of
becoming law-abiding citizens. The society dislikes child misbehaviour, so
society members encourage the police and the court to impose harsh punishments
to the juvenile offender.
In consideration of
the needs for the welfare development of the child, the child has to be
protected by the State, community, parents, and other relatives. The child has
to be handled with dignity when he is in conflict with the law to the extent
that the sentences to be imposed by the court motivate his development.
However, the Law of the Child Act does not provide guidance or doctrines that
the court has to abide to while imposing punishment to juvenile offenders. In
the case of Thomas Mjengi v. R.((1992)
TLR 157)Mwalusanya J., (as he then was) while giving the rationale of
punishment he observed:
“Punishment for criminal offences is
generally viewed as serving one or more of three main purposes: (a) deterrence,
both of the criminal himself and also of society at large (b) the
rehabilitation of the criminal; and (c) restraint-the isolation of the hardened
or dangerous criminal from society. ... evil men deserve to be punished, which
notion is sometimes called retribution.”
The
imposition of punishment by the court aims at deterring the offender himself
and the society at large from committing criminal offences, rehabilitating the
offender as he should not further commit offences in the society, and
restraining hardened or dangerous criminals in order to incapacitate them from
committing offences. These objectives constitute the ultimate justification for
the court to impose sentences to juvenile offenders. According to Paranjape
(2001), there are four theories of punishment that guide the court in the
imposition of punishments. These theories are retribution, deterrence,
prevention, and reformation as explained below.
Retribution Theory
Maguire (2002) argues that the theory of retribution
is the most ancient method of treating offenders. This method is related to the
primitive form that punishes practically all crimes with extremely harsh
sanctions. In primitive society, victims of crimes were allowed to have revenge
against wrongdoers. Srivastava (2005:95) says that retribution “is based on the
primitive nature of vengeance against the wrongdoer. The aim was to assuage the
angry sentiments of the victim and the society.” Therefore, Dignan (2005)
asserts that, the retributive theory introduced the method of harmonising the
state of anger of the society between the wrong doer and the affected part by
punishing the offender in relation to the offence he has committed. Punishment
was a way of paying debts resulting from breaking norms and the laws of the
society. In those ages where the child committed an offence, the revenge
principles were used against the child like adults, and in turn, they became an
abuse of child rights.
The biblical principle of “an eye for an
eye,” “a tooth for a tooth,” “a nail for a nail,” was the basis of criminal
administration and punishment through this theory. In the administration of
punishment to the offender through this theory, in most cases the punishment inflicted
on the offender proved greater than it was done to the victim. Commenting on
retribution theory, Maguire (2002) asserts that there was no proportionality
between the injury inflicted on the victim and the injury inflicted on the
offender because it was regarded as revengeful, which was seen as contrary to
Christian beliefs and practices, hence was considered quite immoral. Gradually
therefore, there developed a shift from this most primitive form of punishment
to equal means of punishment between the offender and the victim. Hence, the
doctrine of retribution for crime became popular because the slogan was to make
the punishment fit the crime. The doctrine required that no punishment should
go beyond that limit, no more than “eye for eye” and no more that “a tooth for
tooth.” In other words, punishment should be in proportion to the injury caused
by the accused.
This retributive theory is based on
considering the actus reus of the
offence and does not put into the account the motive of committing such
offence. It considers only the extent of the injury caused and not the goals
for committing the offence. Retributive punishment gratifies the instinct for
revenge and retaliation. In modern times, the idea of private revenge has been
forsaken. Instead, the State has come forward to effect revenge in place of
private individuals. A critic of retribution theory points out that punishment
per-se is not a remedy for the mischief committed by the offender. It merely
aggravates the mischief. Punishment to a juvenile offender is an evil and it
can be justified only when it yields better results. On commending retributive
theory as a mode of guidance for the imposition of punishment, Srivastava
(2005:95) states that:
“In modern times it has
lost much of its efficacy. The Supreme Court (of India) has recently laid down
that an eye for an eye approach is neither proper nor desirable.”
In light of the above
quotation, despite its popularity in the ancient world, retributive theory is
todate considered a barbaric method of punishment. Tanzania like other States
discourages the use of this theory as a model for imposition of punishment to
the juvenile offender. According to Bhoke (2008) retribution theory is
currently used to direct the court on the imposition of the death penalty. The
theory also applies in the imposition of long-term imprisonment sentences to
separate the offender from the society. Mwalusanya J., challenging the use of
retribution theory in the imposition of the 30 years imprisonment sentence in
the case of Thomas Mjengi v. R ((1992)
TLR 157) provided that:
“It appears the
government on enacting those severe sentences had in mind only retribution and
restraint of the offenders. But it should be remembered that restraint of
offenders is reserved for recidivists only (hardened and dangerous criminals).
And retribution as a sentencing policy is old fashioned and uncivilised as is
espouses sadism?”
To date, the State is highly empowered under the law to protect its
people from all actions relating to criminal dealings. The laws have been
enacted to penalise offenders. These laws provide long imprisonment and capital
sentences. The Law of the Child Act, despite the fact that it seems to prohibit
the imposition of custodial sentences, it still enhances imprisonment against
the juvenile offender. This shows the law is proactive of retribution theory as
a mode of punishment. Imprisonment sentences have been counted to be enacted
basing on retribution theory which may be imposed against hardened and
dangerous criminals. Taking this into account, it is obvious that this theory
is not appropriate as it justifies punishment to juvenile offenders. Juveniles
should not be considered habitual criminals at such age. Reacting to the use of
retribution theory in imposing the death penalty, Mwalusanya J., (as he then
was) in the case of R. v. Mbushuu Alias
Dominic Mnyaroje and Kalai Sangula ((1994) TLR. 146) remarked:
“Then we have the argument of retribution
in favour of the Republic. This argument runs along those lines. As many people
believe that murderers deserve to die, the law must satisfy the public’s thirst
for vengeance otherwise the law will fall into disrepute... Retribution has no
place in a civilized society, and negates the modern concepts of penology.
The court in this case went on insisting that retribution theory by
itself is inhuman. The concept of modern penology does not advocate revenge but
rehabilitation. This calls to mind the fact that the child who is immature in
terms of age, mental, physical and social state of affairs has the right to
protection and guidance for his development. This makes it clear that
retributive based on revenge is not a good guide for the imposition of
punishment to the juvenile offender.
Deterrent Theory
This theory is based on discouraging people from
committing crime in the society. The use of this theory creates fear to all
members of the society including the criminals themselves that in case the
offence has been committed the offender will suffer. In other words, the object
of punishment through this theory is not only to prevent the wrongdoer from
doing wrongs at the second time, but also to make him an example to other
persons with criminal behaviour. That is to say, the purpose of criminal law
through this theory is to discourage criminal behaviour by making the evildoer
an example to warn criminal minds in the entire society. In the case of Tabu
Fikwa v. R. ((1988) TLR 48) Samatta J., (as he then was) provided that:
“In
determining or occasion sentence the court is perfectly entitled to take into
account the necessity of deterring other persons from perpetrating similar
offences, but that factor is not the sole or predominant basis for assessment
of sentence.”
The theory of deterrence is deemed by the court
immediately after convicting the offender. After convicting an offender, the
court takes mitigation factors and considers the best sentence to impose
against the offender through application of an appropriate theory of
punishment, including deterrence theory. Persons who advocate for deterrent
punishment do so because of its social utility as the infliction of pain upon
those convicted of crime deters others from committing crime. In their view,
deterrence theory has great value for that reason. Buying this view, in the
case of Ramadhani Mwenda v. R.((1989) TLR 3) Chipeta J., (as he then was) said that “a deterrent sentence” was
called for “to be a lesson to the accused person and other people.” Therefore,
the imposition of sentences through deterrence theory aims at making the
society fear committing offences upon remembering the punishment imposed
against previous offenders.
Deterrence theory presupposes the imposition of severe
penalties on offenders with a view to deterring them from committing crimes.
This is executed by providing adequate penalties and exemplary punishments to
offenders in order to keep them away from criminality. For this reason, some of
the society members believe that the harsher the penalty or the more horrid it
is, the more effective it becomes, which is not true. Deterrence theory was the
basis of punishment in England in the medieval period, and consequently it
became severe and inhuman and it was even inflicted upon minor offences. For
instance, culprits of ordinary theft crimes were subjected to severe punishment
of death by stoning and whipping which in case of juveniles is a violation of
child rights.
The theory of deterrence has been criticised on the
ground that it has proved to be not an effective method in checking and
combating crimes. Deterrence encourages the imposition of unnecessary and
excessive punishment that tends to defeat its own purpose. This makes the
members of the public sympathetic with offenders suffering from the cruel and
inhuman punishment imposed by the court. Deterrent punishments are likely to
harden juvenile culprits instead of reforming their minds. Hardened criminals
are not afraid of imprisonment. In Tabu Fikwa ((1988) TLR 57) Samatta
J., (as he then was) stated that:
“Deterrence
is a well-recognised purpose of punishment, but imprisonment has never been
regarded by judges, lawyers, or experts in penology as being the only
punishment which is appropriate for that purpose. The object of punishment to
hurt the offender (the justness of the object is, understandably, a subject
matter of serious controversy) can fairly often be met by a substantial fine.”
In its classical form, the potential harshness of the
theory was alleviated by the principle that pain was a social evil. In
punishment, the least pain was to be applied which was consistent with the
objective of deterrence. Since man was viewed as a calculating animal, the
punishment would have to be only a slighter greater pain, that the prospective
enjoyment of the fruits of the crime was an anticipated pleasure which may be
called the objective of general deterrence.
Preventive theory is also called disablement theory.
The objective of imposing a sentence to a convicted offender through this
theory is to prevent or to disable the criminal from committing an offence.
This theory advocates the imposition of the death penalty or life imprisonment.
The imposition of these penalties does not aim at preventing other incidences
of criminal behaviour in the society but the convict himself.
The theory is based on the proposition
that punishment does not retaliate but it prevents. It presupposes that the
imposition of punishment simply arises from social necessities. In punishing a
criminal, the community protects itself against anti-social acts which endanger
social orders in general, or person or property of its members.
Preventive theory emphasises on the
imposition of imprisonment and death penalties. By sending the criminal to
jail, he is prevented from committing crimes in the society. Even the death
penalty serves the same purpose of disabling the offender from offending again
in the future. As an offshoot of preventive view regarding crime and criminals,
the development of prison is the best mode of punishment because it serves as
an effective deterrent as well. This theory provides useful preventive measures
of crime since offenders are physically kept away from the society.
However, critics of preventive theory
point out that preventive punishment has the undesirable effect of hardening
first offenders when imprisonment is executed by placing them with hardened
criminals. In addition, the theory is criticised on the ground that persons who
are criminals can be prevented from committing crimes through reformation
method rather than preventive method. The reformative method can make the
person who initially was criminal to a non-criminal person. Chandra(2000)
explains that the infliction of harsh punishments like death penalty and long
imprisonment sentences is against human civilisation of the modern society.
Hence, preventive theory is not a good guide to the imposition of sentences
against a convicted juvenile.
Reformative
Theory
Reformative theory aims at rehabilitating the criminal
offender. The crime, which arose due to the existence of anti-social factors in
the society, is considered a disease to the society. In the process of curing
this disease, the mental medicine has to be administered to the offender. The
imposition of punishment is avoided because it does not cure this disease.
Therefore, in order to restrict opportunities for commission of crimes, the
State has to design a measure to rehabilitate the criminal rather than imposing
hard sentences against the offender.
Reformation theory advocates the
imposition of sentences with rehabilitative effect. Some people believe that
reformation is the best method of restricting the commission of crime. The
argument goes that, if the criminal and his crime are the product of his
society, then he cannot significantly be deterred by threat of punishment.
Thus, the principal objective of the criminal sanction is to reform the
criminal. Accordingly, the battle cry of the modern reform has been to make the
punishment fit to the criminal, and not the crime. In the case of Francis
Chilema v. R (([1968] HCD 510) where the accused had pleaded guilty the
court said inter alia:
“It
is generally, if not universally, recognised that an accused pleading guilty to
an offence with which he is charged qualifies him for the exercise of mercy
from the court. The reason is, I think obvious, in that one of the main objects
of punishment is the reformation of the offender. Contrition is the first step
toward reformation, and a confession of a crime, as opposed to brasening it
out, is an indication of contrition.”
Therefore, when the child is convicted he
has to be provided with an opportunity for reformation. Thus, he needs exposure
to education programmes such as carpentry, tailoring, gardening, dairy farming,
and all sorts of time-consuming but productive occupations. Srivastava (2005:96) when commending the process of exposing convicts to
educational programmes as a means of providing skills to convicts with a view
of prohibiting them from committing criminal offences, says:
“Much
truth lies in the statement that to open schools is to close a prison. If
persons of criminal character are so educated and trained that they are made
competent to carryon well in society, will be little or no possibility at all
of any crime being committed by them.”
In line with the above argument, training in various
activities assists the convict to refrain from criminality as a means of life.
The daily bread should come from the fruits of his work and not from the fruits
of his criminality. Therefore, in achieving this, the convict should be
provided with the curative measures and not killing, imprisoning or torturing
him. This is because no person is expected to be reformed by being killed or
imprisoned. The reformation process requires making the person fit in terms of
physical, mental, social, and providing to him with the best skills for his
life. In modern times, much attention is given with emphasis to reformation of
criminals, especially young offenders in whose case this theory has very
successfully been applied.
Critics of this theory say that if criminals are sent
to prison with a view of transforming them into good citizens, a prison will no
longer be a prison but a dwelling house. It is argued that the deterrence
motive cannot be abandoned altogether in favour of the reformative approach
since the permanent influence of criminal law contributes largely to the
maintenance of the moral and social habit that prevent offenders from
committing crimes. This also deters prospective criminals from committing
anti-social acts. Srivastava (2005) says that the reformative theory has failed
to reform habitual criminals and professionals. The reformation method through
education programmes has not been able to reform the professional person. This
is because such a criminal already has education and has the professional
skills and the work to do but still commits crimes sometimes by using his
profession. Education programmes as the means of reformation method does not
apply to such kind of convicts, and this necessitates the application of other
theories of punishments.
The Theory of Punishment for a
Juvenile Offender
This part has discussed different theories of
punishment. Retribution theory ACCORDING TO Srivastava (2005:95)“is based on
primitive nature of vengeance against the wrongdoer. The aim was to assuage the
angry sentiments of the victim and the society.” Deterrent theory seeks to
create fear in the mind of others by providing adequate penalty and exemplary
punishment to offenders, which should keep them away from criminality. The fear
created to the society rescinds the members of the society from committing
criminal offences. Preventive theory aims at preventing or disabling the
criminal from committing offences. This theory advocates for the imposition of
the death penalty or long life imprisonment sentences. Reformation theory
advocates for the imposition of sentences with rehabilitative effects. This
theory motivates the imposition of non-custodial sentences accompanied with the
education programmes.
The court uses these theories in
sentencing adult convicts. In sentencing adult criminals, the magistrates
interviewed said that there is no single theory that is comprehensive and
satisfactory on its own to fulfill the standards of punishment. In relation to
this, the court needs to apply a combination of all these theories. The
combination of these theories in the process of determination of sentences,
according to Srivastava (2005), enables the court to impose the right sentence
to an offender, taking into account the proportion of the gravity of the
offence committed, nature of the offence and the needs of the society.
The child is affected due to unique
factors of socio-economic, cultural, traditional, developmental circumstances,
and exploitation. Thus, the child needs legal protection in conditions of
freedom, dignity, and security. All these conditions help the child to grow up
in a family environment with happiness, love, and understanding of child
rights, and legal protection. This motivates child protection in the systems of
administration of juvenile justice. In case the court has convicted the
offender, it has to consider different factors that emphasise the child development
and reformation before entering the sentence. However, before imposing the
sentence the court has to take into account the theories of punishment in
relation to the needs and development of the child. These theories are
retribution, deterrence, prevention, and reformation.
When the child is brought into the systems of the
administration of juvenile justice, he has the right to protection and
reformation through sentences imposed against him. For purposes of the
development of the child, reformation theory seems to be the best means for
guiding the court in imposing the sentence. This theory emphasises the need to
expose the child to education programmes. These education programmes will
enable the child to acquire vocational skills and trainings in the form of
apprenticeship that will impart the child with proper knowledge that will
enable him perform certain activities for earning life and in turn do away with
criminality. However, the imposition of sentences against the juvenile has to
consider cultural and other new factors arising in that society. In respect of
the imposition of sentences, Srivastava (2005: 97) provides:
“Undoubtedly
there is a cross cultural conflict where living law must find answer to the new
challenges and the courts are to mould the sentencing system to meet the
challenges. The contagion of lawlessness would undermine social order and lay
in its ruin. Protection of society and stamping out criminal proclivity must be
the object of law which can be achieved by imposing appropriate punishment.”
Taking into account what Srivastava (2005) says above,
the child in conflict with the law has to be reformed in line with cultural
changes and the need to protect the child rights. Therefore, the court has to
determine whether the reformative penalties meet the need of the society to an
extent of ensuring that justice is done. In the process of imposition of
sentence, the court also considers the aggravating and mitigation factors as
well as the reformative sentences to the offender.
THE
PROCESS FOR CONVICTING AND SENTENCING JUVENILE OFFENDERS
The process
of sentencing the convicted juvenile offender is probably the most public fate
of the criminal justice systems. Sentencing is the most difficult phase in
handling juvenile justice systems. Safari (2010) says that sentencing starts
immediately after the trial court has issued the declaration of conviction
against the juvenile offender, after it has ruled out that the juvenile
offender is guilty as charged. In the
case of Ramadhani Masha v. R ((1985) TLR 172) the appellant, Ramadhani Masha was charged of being in possession of
stolen property. After hearing the evidence of the prosecution and defence, the
trial court magistrate sentenced the appellant to six months’ imprisonment. He
did so without first convicting him. Four months later, the magistrate wrote a
judgement convicting the appellant as charged. In appeal the Sisya J., held
that:
“In a
criminal trial, where it is decided that the accused person is guilty, the
basic elements of the decision of the court are conviction and sentence, with
the former being a prerequisite of the latter; as there was no conviction when
the appellant was sentenced, there was no decision of the court and, the error
being incurable ..., the sentence passed in this case was unlawful.”
The order imposed by Sisya J., reveals that when
hearing the case against the juvenile offender, the juvenile court should
follow all stages of the trial. The court cannot just jump to the imposition of
a sentence immediately after hearing the evidence of the witnesses. The court
should have evaluated the evidence carefully and concluded whether or not the
juvenile offender was guilty only after hearing the testimonials from
witnesses. In case the juvenile offender is guilt then, there are two basic
elements of “the decision” and these are conviction, and sentence. The
conviction is issued first against the juvenile offender before the imposition
of the sentence. In case there is a sentence pronounced by the court in absence
of the conviction, the sentence imposed is unlawful. The Law of the Child Act
gives these two mandatory procedures for juvenile trial in Tanzania. Section
111 provides:
“Where the child
admits the offence and the Juvenile Court accepts its plea or after hearing the
witnesses the Juvenile Court is satisfied that the offence is proved, the
Juvenile Court shall convict the child and then, except in cases where the
circumstances are so trivial as not to justify such a procedure, obtain such
information as to his character, antecedents, home life, occupation and health
as may enable it to deal with the case in the best interests of the child, and
may put to him any question arising out of that information.”
The law provides expressly that when the court has
taken the plea of guilty of the juvenile offender or upon proof of the offence
through witness testimonials, the court shall first convict the juvenile
offender and then, obtain information that can assist the court in the
imposition of the right sentences. The acquiring of this information through
the mitigation processes is mandatory. The mitigation process aims at getting
the information on character, antecedents, home life, occupation, and health of
the juvenile offender. Such information assists the court to reach the
imposition of the right sentence to the convicts.
Section 111 of the Law of the Child Act requires that
the juvenile court should receive some information that the court thinks
relevant for assessing a proper sentence to the best interest of the juvenile
offender. However, the law does not make it mandatory for a court to receive
such information despite the fact that this stage of the trial has high value
in the imposition of a proper sentence to the convict. Slattery (1972: 25)
remarks:
“The law
provides, in a very general way, that once a court has convicted an accused, it
may then, before passing sentence, receive such evidence as it thinks fit in
order to assist it in arriving at a proper sentence. Although the law does not
make mandatory for a court to receive such information, nevertheless it is
obviously highly desirable for a court to do so.”
The court has to receive such additional information
in order to arrive at a proper decision. The law is also silent on the stages
which the court should adopt in order to receive such information from the
parties of the case. However, on reading section 111 of the Law of the Child
Act, one can get a notion that immediately after the court has pronounced the
conviction against the juvenile, the court has to take additional information
which will assist pronouncing the sentence that takes on board the best interest
of the child. This stage is called the mitigation stage. Mitigation is a stage
between the pronouncements of the conviction statement and the stage before the
pronouncement of the sentence to the convicted juvenile offender. The
mitigation process has two stages. Mirindo (2011) says that the first stage is
for the prosecution side to inform the court on such relevant factors that the
side finds fit and will assist the court to pronounce the right sentence to the
juvenile offender. The second stage is reverted to the convicted juvenile
offender to provide information to the court, which the court will end up with
either discharging him without condition or imposing a lesser sentence.
However, juvenile offenders do not utilize this stage to their advantage
because they are not aware of the rationales of this stage. This makes it hard
for the court to show lenience in its imposition of sentences.
This is a statement issued by the prosecution side
after the court has convicted the juvenile offender as charged. This is the
opportunity to issue an additional statement by the prosecution side. This
stage aims at assisting the court in assessing the proper sentence against the
juvenile offender. It is significant to note that, the duty of the prosecution
is not to make sure that the juvenile offender is convicted and punished to a
higher sentence but to assist the court to pronounce a proper and justifiable
sentence against the convict. In respect to the prosecution statement, Slattery
(1972:26) provides:
“The
procedure which a court should follow in assessing sentence has been set down
in many cases. After convicting an accused, the court should first call upon
the prosecution for factual statement…In particular, the prosecution should state
whether the accused has any previous convictions.”
In respect to the above statement, the prosecution
statement has to contain information relating to the child’s age, education
background, previous conviction records, family background, character, antecedents,
home life, occupation, and health. It is significant to point out that the
prosecutor cannot allege the offences to which the juvenile has not been tried
and convicted as part of the conviction record, and he always has to avoid
telling lies to the court against the convicted juvenile offender. Sometimes
the prosecution side tells lies to the court in order the court to enhance
punishment or pressure the court to impose severe punishments.
In case the prosecutor has any information in favour
of the convicted juvenile offender that will lower the sentence, he has to
disclose it without hesitation. It is essential to count that the main role and
interest of the prosecutor in any case is to assist the court to do justice to
the juvenile in order to reform him. The information that is within the
knowledge of the prosecutor that assists the juvenile offender can be given on
oath. The court considers an un-sworn statement only when it has not
encountered opposition of its truth from the juvenile offender. Munkman (2007)
says that, in case such statement is given under oath, then the statement may
be subjected to cross-examination. The main aim of this stage is to enable the
prosecution side to submit to the court facts that will lead the court to
impose a sentence with rehabilitative value. This stage should not encourage
the court to impose harsh punishment to the juvenile offender.
After the prosecution side has finished giving
additional information, an opportunity is reverted to the juvenile offender.
Commenting on the necessity of giving this opportunity to the juvenile
offender, Slattery (1972: 26) states:
“In
any case, the accused must then be given the opportunity to deny or qualify
anything said by the prosecution, or of stating further facts in mitigation.
Where something alleged by the prosecution is disputed, then the court must
make a finding as to its truth. To do so it follows the normal procedure of
proof in criminal trials.”
During this stage, the court with harmony
has to record each statement of mitigation given by the juvenile offender.
However, it is imperative to understand that where the juvenile offender is
unrepresented by a lawyer he will not be able to understand what facts to
testify to the court at this stage. Normally, through ignorance the juvenile
offender may possibly deny the conviction by re-giving evidence to rebut
conviction. In solving this problem, the court is required to explain to the
juvenile offender the essence of this stage. The convict is required to give to
the court facts that contain information that qualifies or denies the statement
given by the prosecution side, or by giving further information that will
either lead into discharge or imposition of less sentence to the offence.
This opportunity is given to the
juvenile offender by the court where Slattery (1972:26) asserts, “once a court
has convicted an accused, it may then, before passing sentence, receive such
evidence as it thinks fit in order to assist it in arriving at a proper sentence.”
Therefore, it is upon the juvenile offender to give relevant information to the
court in order to enable the court to impose a sentence which cultivates the
process of change during which the juvenile is able to reach his physical,
mental, emotional, and social potentials. The sentences to be imposed should
not exonerate the juvenile from the society environment which develops juvenile
welfare.
As provided above, there is a great
burden on the juvenile offender in providing better mitigation statements
during the sentencing stage. Slattery (1972: 27) insists that:
“Many people brought before the courts have little
idea of law, and as to what might constitute circumstances. So, when asked to
say something in mitigation, prisoner may often say quite irrelevant things,
such as to deny the charge or accuse the police for conspiracy.”
In line with Slattery’s view, it is right to say that
the child knows no law. When he is called upon to give mitigation statements he
normally provides irrelevant information such as denying his involvement in the
offence or accusing prosecution and other persons who are not even in the case.
In such circumstances, the juvenile court directs specific questions to the
juvenile offender to enable him lay his mitigation to the court. The court uses
such mitigation statements to impose a proper sentence to the offender taking
into account the best interest of the juvenile offender.
BASIC MATTERS CONSIDERED BY THE JUVENILE COURT BEFORE
SENTENCING
As the world is advancing in terms of
child rights, protection, and child development, the court also has to protect
the child against abuse through the systems of juvenile justice administration.
It should do this by avoiding mistreatment and punishments with degrading
effects. During the sentencing process, the court has to give the parties to
the case an opportunity to give their mitigation statement. The mitigation
statement contains information that may assist the court to impose a proper
sentence to the juvenile offender. The statement holds relevant factors that
call the court to impose a sentence that takes into account physical, mental,
emotional, and social potentials of the juvenile development. In Salum
Shabani v. R ((1985) TLR 71) Mtenga J., in the cause of sentencing the offender
stated that:
“I understand that the task of sentencing is a very
difficult one though admittedly, it is a discretionary task. ...There are a
number of factors that the court has to consider before passing a sentence such
as gravity of the offence, prevalence of the offence, the interest of society,
the penalty section under which the accused is charged and last but not least,
the record of the accused person.”
Thus, in the
imposition of sentences, the court has to take into consideration various
factors provided to the court by both the prosecution and the defence sides.
The court has the responsibility to explain to the juvenile offender the
importance of this stage, and where possible, the court has to ask the juvenile
offender some clue questions through which the court will receive useful
information. It is vital to note that the juvenile offender needs
rehabilitation and not punishment. In case the juvenile offender stays silent
during the mitigation, it should not be construed as one of the aggravating
factors. The juvenile remains silent because of his ignorance of the law. The
court when imposing sentences has to accord its weight the principle of triad
and the best interest of the child.
The
law provides the requirement to the court to assess the sentence. It is this
which makes it mandatory for the court to be conversant with purposes of
punishment as explained through the theories of punishment. In the proper
imposition of sentences, the court has also to utilise the understanding of the
principles for assessing sentences, and the jurisdiction of the court in terms
of offences and sentences.
Among the principles for assessing sentence to be
imposed to a juvenile offender is the triad principle. This principle urges the
court to take into consideration three main factors, to wit, the crime, the
offender, and the interest of that society. However, by looking at the state of
affair of the offender, crime and the society, the court does not reject any of
the theories of punishments, namely retribution, prevention, deterrence, and
reformation. In addition, it does not expressly agree with any of these
theories. In the cause of sentencing through the triad principle, the court
finds itself imposing the sentence basing on a particular theory of punishment.
The reformative theory is the one deemed the best in sentencing the juvenile
convict.
The
triad principle was used in Tanzania in the case of Tabu Fikwa ((1988) TLR 48). In this case, the appellant Tabu Fikwa pleaded
guilty to the offence of possessing native liquor popularly known as “gongo.”
The court convicted her and sentenced her to five months’ imprisonment. Tabu
Fikwa was not given an option to pay fine. During the mitigation, the appellant
told the court that it was her first offence and that she manufactures “gongo”
because she had financial problems. The appeal court considered the law and the
circumstance of the case. Samatta J., (as he then was) inter alia stated
that:
“In
determining or assessing sentence what the court must consider is the triad
consisting of the offence, the offender and the interests of society. Thus, the
magnitude of the offence and motives to its commission and the character of the
offender are some of the matters which the court must have regarded to. The
court must strive to strike a reasonable balance between the elements of the
triad.”
Therefore, in line with the triad principle, the court
must consider the offence, the offender and the interests of the society. In
addition, the triad principle considers factors such the magnitude of the
offence, motives to the commission of the offence, and the character of the
offender. The triad principle also considers the kind of the offence, the
manner the offence has been committed and the prevalence of an offence in the
society. These are the main ingredients in assessing sentences to the convicted
juvenile offender. Nevertheless, the triad principle is not exhaustive in the
assessment of sentences to the juvenile.
In the case of Yassin Maulid Kipanta and two Others
v. R ((1987) TLR 183) Chipeta J., (as he then was) reacting in the
use of prevalence of the offence as a factor in assessing sentence provided:
“With
unfeigned respect, the prevalence of an offence is one of the factors to be
taken into consideration in assessing sentences. But it is not the only
consideration. It must be taken into consideration along with other factors.”
This view was initially adopted and
discussed in the case of Silvanus Leonard Nguruwe v. R ([1981] TLR 66) where the court stated that:
“Prevalence
of an offence is indeed a factor which a trial court should always take into
account when assessing a proper sentence to impose in any particular case; but
it would be contrary to principle to consider this fact either as the
predominant or the only factor that must guide the court in its consideration
of sentence.”
Thus, the prevalence of the offence in
the society to which the juvenile offender has committed is not the main factor
for imposition of a heavy sentence against the juvenile. The offender needs
protection against degrading punishment, and the nature of the offence should
not motivate the court to impose a heavy sentence to the juvenile offender. It
is vital for the court to consider the fact that there is no single factor
which is useful for assessing a sentence against the juvenile. Likewise, the
court should not adopt a factor of prevalence of the offence in enhancing the
imposition of a sentence against the offender. The interview with Maromboso
Primary Court Magistrates revealed that the prevalence of the offence is a key
factor in the imposition of sentences to the juvenile offender. This aims at
discouraging the commission of such offences. It is the opinion of the researcher
that the imposition of punishments to the juvenile offender on the basis of
prevalence of the offence violates the rights of the juvenile because such
sentence does not take into account the need for rehabilitation.
The main objective of the triad principle
is to reconcile the main theories of punishment with one another. In
determining a sentence, courts strive to accomplish and arrive at a judicious
counter balance between the three elements in order to ensure that no element
is unjustifiably emphasised at the expense of another and to the exclusion of
others. Maguire (2002) explains that the court should consider and try to
balance between the nature and the circumstances of the offence, the
characteristics of the offender, the impact of the crime on the community, and
the welfare development of the child offender.
In the process of sentencing, the court
has to take into consideration the effect of such sentence to the juvenile
offender. The court has the responsibility to consider the way the offence has
been committed, the repentance of the juvenile offender and whether or not he
is a first time offender. In R. v. Asia Salum and Others( (1986) TLR 12)
the accused mother and her 17-year-old son were convicted of assault
causing actual bodily harm. Both were first offenders and were each sentenced
to twelve months’ imprisonment. The record of the proceedings was called by the
High Court for satisfying itself as to the correctness, legality and the
propriety of the sentences imposed. Mnzavas JK, (as he then was) held that:
“(i) Where a first offender is concerned the emphasis
should always be on the reformative aspect of punishment…”
“(ii) first offenders should not, as a rule, be sent
to prison where there is an opportunity to mix with and learn bad habits from
more seasoned criminals.”
In this case, the court considered the fate of the
offender to the fact that he is a first time offender so he cannot be sent to
prison where habitual criminals can spoil him. A first time offender has to be
reformed through non-custodial sentences. In this case, the second accused aged
17 was a form III student and a first time offender. The offender had a big cut
wound on his face and dislocation of the left shoulder. Considering all these
factors, the court was of the view that imprisonment was not a favourable
sentence to this juvenile offender. The court further opined that the proper
sentence to this juvenile offender should have been a probation order or even
discharging the child with or without conditions.
Slattery contends that the court in the
process of sentencing a juvenile offender using the triad principle has to
consider the nature of the offence. Such consideration takes into account the
factors relating to the gravity of the offence because when the offence is
serious, it enhances the sentences to discourage the commission of such
offence. The seriousness of the offence is determined by the nature of the harm
caused and its result in the society. Ashworth and Wasik (1998) provide that
there are aggravating factors for determining the seriousness of the offence.
These include the difficulties in detection of the commission of the crime and
the frequency of the commission of the offence in the society. In case the
offence is serious, then it attracts imposition of an exemplary punishment
against the offender. However, during the imposition of sentences in
consideration of these factors, rehabilitation goals to the juvenile offender
have to be highly considered. This means that the sentence to be imposed to the
juvenile offender has to restrict suffering because the contrary is a violation
of the rights of the juvenile offender.
The Best Interest of the Child
In
the process of sentencing, the court has to impose the sentence that takes into
account the best interest of the juvenile offender. The principle of the best
interest of the juvenile inter alia, requires the court to give to the
offender an opportunity to be heard either directly or through an impartial
representative. The views given are taken into consideration by the relevant
authority in accordance with the provisions of appropriate law. The principle
of the best interest of the child advocates that the child has to be treated in
the manner that promotes the child’s welfare development. This is achieved by
handling the child in the process of change through which a child will be able
to reach his physical, mental, emotional and social potentials.
In order for the court to impose an appropriate
sentence to the convicted juvenile, the court is required to take into
consideration different factors affecting the child as presented to the court
during the mitigation stage. There are numerous factors which the juvenile
offender may inform the court during this stage. However, every offender gives
factors in relation to his condition. The Law of the Child Act determines the
main factors including the character of the child, antecedents, home life,
occupation, and health status. The case of R.v. Kidato Abudlla ((1973)
LRT 82) provided several factors such as the gravity of the offence, age, the
interests of the society, and the best interest of the juvenile. However, the main challenge is that the
juvenile court does not always consider these factors during the imposition of
sentences. Samatta J., in Tabu Fikwa took the view that the court has to
consider factors like the nature of the offence committed by the juvenile
offender by taking into account the magnitude of the offence and motives for
its commission; the state of affairs of the juvenile himself including his
character; and the interest of the society.
However, on scrutinising the process of sentencing when there is a
conflict between the interest of the juvenile offender and the society he
remarked:
“An offender is a member of society and quite often a
product of social and economic conditions. If his interests and those of
society are in conflict the former must be subordinated to the latter. If, however,
they can be reconciled the court should embark upon that course.”
This is to say that in the process of sentencing the
juvenile when there is conflict of interests between the interest of the
society and that of the juvenile offender, the interest of the society
prevails. This kind of sentencing is an abuse of the principle of the best
interest of the child. The principle of the best interest of the child requires
that anything related to the child must receive paramount consideration. This
means that the interest of the child overrides any other factor in the
sentencing process. The principle of the best interest of the child puts into
emphasis the protection of the rights of the child to the level that nothing
can prevent the well-being of the child.
There is no
exhaustive list of factors to be considered by the court during the assessment
and imposition of sentences to the convicted juvenile offender. In the case of Bernadeta
Paul v. R ((1992) TLR 97) the appellant was
convicted by the High Court on her own plea of guilty for killing her 8 day old
baby. In sentencing the appellant, the court put into mind only two mitigation
factors namely that the appellant was a first time offender and she had been in
custody for about five years. On this base the appellant was sentenced four
years in prison. It was argued on appeal in favour of the appellant that the
trial court had ignored the fact that the appellant had readily pleaded guilty
to the offence. This, according to the court, should have been taken as a
mitigating factor. The court held that:
“...had
the learned judge taken into account appellant’s plea of guilty to the offence
with which she was charged the judge would no doubt have found that the
appellant was entitled to a much more lenient sentence than the sentence of 4
years imposed.”
This case further opens other mitigation factors which
may be taken on board by the court in the process of determination of
sentences. These are such as the juvenile offender is a first time offender;
the period of remaining under custody without bail; and readiness in pleading
of guilty to the offence.
In case the court deems to impose fine against the
juvenile offender during the mitigation process, it has to inquire on the
financial position of the juvenile or anyone may be ordered to pay on behalf of
the juvenile. The accused in the case of Ramadhani Mwenda v. R ([l972]
HCD 115) a secondary school student, assaulted his fellow student in a
classroom with a penknife and caused the victim to sustain a cut wound. He was
convicted of unlawful wounding under section 228(1) of the Penal Code and
sentenced to pay a fine of Tshs. 7,000 or nine months’ imprisonment and to pay
Tshs. 3,000 as compensation. On appeal the court stated that:
“This
court has often held that a sentence must fit the crime and guilt as well as
the circumstances of the offender. If a sentencing court is minded to impose a
sentence of fine as an option to a custodial sentence, such court should take
pains to inquire into the financial means of the accused person, for if that is
not done, a court might find itself imposing on an accused person a sentence of
fine whose result would be to render the option of a fine illusory.”
Generally the court may impose a proper sentence
relating to a fine against the juvenile offender only when it has received
enough relevant information relating to the financial position of the juvenile
and his parents or relatives are ordered to pay the fine on his behalf. This
does not mean that the sentence of a fine has to be low but that it can be paid
as ordered by the court, however a bit with difficulties.
There are plenty of factors which may be tabled to the
court by the juvenile offender during the assessment of an appropriate
sentence. The juvenile offender only mentions factors which are useful in
making it possible for him to get an appropriate sentence. However, when
determining such factors, the court must pay attention to goals of imposing
sentences which encourage reformation to the juvenile offender. Nevertheless, it
has been noted in Tanzania that children are not afforded with proper access to
rehabilitative activities. The report by the Commission for Human Rights and
Good Governance provides that the provision of facilities for education,
vocational training, and recreation in approved school and prisons was wholly
inadequate. This limits the rehabilitation and reintegration processes to the
juvenile offender in Tanzania.
CONCLUSION
This article has surveyed the theories of punishment
including the retribution, deterrent, preventive and reformation. As the
juvenile is considered immature in terms of physical, mental and social it has
been noted that in the course of imposition of sentence to the juvenile
offender judicial officers have to use the reformative theory. This theory is
considered has better mechanism of child rights protection from degrading
punishments in the systems of justice administration. The article as well has
discussed the stages of convicting and sentencing the juvenile offender.
However, the judicial officer has responsibility to take into account the
principle of the best interest of the juvenile offender in all stages of
imposition of the sentence.
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