Cape Town - The Western Cape High Court has set aside a magistrate’s conviction and sentence against a 19-year-old which relied on the accused’s previous convictions in the Children’s Court.
Reviewing the case Judge Robert Henney also directed the Office of the Director of Public Prosecutions to request the police criminal record centre to immediately remove any order of the Children’s Court recorded against the name of the accused, which purports to be a previous conviction.
Tyrone Olivier, 19, appeared in the Caledon Magistrate’s Court and pleaded guilty on January 11 to a charge of housebreaking with intent to steal and theft.
Olivier was arrested for an October 1, 2022 incident during which he broke into a property and stole eight cellphones.
The magistrate had questioned him in terms of the provisions of section 112(2) of the Criminal Procedure Act which requires the written statement to set out and specify the facts upon which his pleas of guilt were based.
During the sentencing proceedings, the prosecutor brought up Olivier’s “previous convictions” from 2020 as reflected on the “SAP 69 Criminal Record” document.
This showed that Olivier, who at that stage was still legally a child, was referred to a Child Youth Care Centre, by the same magistrate who conducted the criminal proceedings in this matter.
Judge Henney said: “The first question that arises in this matter is whether it is appropriate for a judicial officer that previously dealt with a child in Children’s Court proceedings to preside in a subsequent criminal trial of that same person.
“A further aspect of concern is the fact that on the SAP 69’s handed in at court during the sentencing proceedings, on December 14, 2020 that were referred to Children’s Court when the accused was 16 years old.
He said even though Olivier was legally a child when he allegedly committed these offences, the crimes and the Children’s Court order were recorded against his name at the criminal record centre in the police register as a previous conviction.
The judge said: “For obvious reasons, such a child cannot incur any criminal conviction.
“Neither does such a child acquire a criminal record, because all criminal proceedings against such a child from the moment such an order is made is effectively stopped.
“It follows, therefore, that the entry of any order in terms of section 156 of the Children’s Act onto the criminal record against the name of a child is therefore unlawful, as has happened in this case.”
Judge Henney said the fact that the same magistrate in the case under review was also the magistrate that dealt with Olivier’s Children’s Court proceedings was problematic.
He said: “The references to those proceedings during the current proceedings by the very same magistrate is not only inappropriate but also unlawful.
“The Children’s Act does not permit the disclosure of any information of those proceedings which remains confidential to protect the best interest of the child.”
mwangi.githahu@inl.co.za