Court/Judicial body: The Supreme Court of Tonga, Nuku’alofa
Date: 3 March 2008 CRC
Provisions: Article 37: Torture and deprivation of liberty
Background: A 13-year-old boy pleaded guilty to seven separate offences involving housebreaking and theft over a 3-year period. The first offence had been committed when the boy was with the Youth Diversion Scheme under which he had been placed in the custody of a supervisor for three months to allow him to complete a rehabilitation programme. Prior to being referred to diversion, the boy had been placed by a magistrate under the care of a Salvation Army officer for a few weeks but he had run away. The last offence had been committed three days after he had been granted bail in the final attempt to keep him out of prison.
Issue and resolution: Juvenile justice. The Supreme Court sentenced the boy to 18 months in prison based on his criminal history and breach of the rehabilitation programme.
Court reasoning: The Court reasoned that it had exhausted all options and as a last resort must sentence the boy to prison for reasons of public safety and deterrence. The Court noted that it took into account the CRC and sentenced the boy to the shortest appropriate period of imprisonment in the circumstances.
Excerpt citing CRC and other relevant human rights Tonga acceded to the Convention on the rights of the child in 1995. Article 37 of that Convention provides: “ART 37(b) – The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. In this case the child has become incorrigible. Every chance has been given to keep him out of gaol. There are no further institutions that I can find who will take him. There is no juvenile detention centre. He has been kept out of prison as far as is possible but it has in the end all been to the suffering of the community. Society can no longer be put at risk and as a last resort he must now be sentenced to imprisonment not only as a matter of public deterrence but simply for the protection of the community. … It is with regret that I feel that there is no other option left, and it is a last resort, but that he must now be sentenced to imprisonment. All alternatives have been pursued without success. I take into account, the Convention in the rights of the child and sentence the accused to the shortest appropriate period in the circumstances.
CRIN comments: CRIN believes this decision is partially consistent with the CRC. The Court correctly cited Article 37 of the CRC which specifies that detention should be used only as a measure of last resort and for the shortest appropriate period of time. However, the Court sentenced the boy to imprisonment despite recognising that there are no juvenile detention centres. Under Article 40, States must ensure that children in conflict with the law receive treatment that takes the child’s age into account and aims at his or her reintegration into society, and that judicial proceedings and institutional placements are avoided wherever possible.
Citation: TongaLawRp 10;  Tonga LR 44
Link to full judgement: http://www.paclii.org/cgi-bin/sinodisp/to/cases/TOLawRp/2008/10.html?ste…