Court/Judicial body: Supreme Court of Judicature – Court of Appeal
Date: 10 June 2011 CRC
Provisions: Article 3: Best interests of the child Article 37: Torture and deprivation of liberty
Domestic provisions: Juvenile Offenders Act, Cap. 138 – Section 16(1),best interest of the child Reformatory and Industrial Schools Act, Cap 169 Penal System Reform Act, Cap 139
Case summary
Background: The appellant was a 15 year old who was convicted of unlawfully and maliciously inflicted serious bodily harm on another student. The appellant had a previous charge of unlawfully and maliciously wounding a student for which he was sentenced to two years’ probation with conditions. He breached his probation order after he gambled in school, caused injury to another student, was absent from school and failed to be truthful with the probation officer. The magistrate took into account both the breach of the probation and the offence and sentenced him to three years’ detention at a government industrial school. The three year custodial sentence was considered appropriate as previous interventions such as counselling and supervision had not prevented re-offending. The appellant appealed against the sentence on the ground that it was too harsh.
Issue and resolution: Juvenile detention. Whether the three year sentence was too harsh. The court dismissed the appeal and upheld the magistrate’s sentence.
Court reasoning: The Court examined whether the magistrate’s decision complied with legislation concerning the treatment of juveniles in the criminal justice system. The Juvenile Offenders Act requires information about an offender to be obtained so that the case is handled in the best interests of the child. The appellant argued there were other sentencing options available to the magistrate however the Court was satisfied that the magistrate took the necessary measures before deciding that detention was the appropriate sentence. In relation to the first offence the appellant was given counselling, anger management and supervision. As these interventions failed to prevent re-offending, the Court accepted custody was necessary. The Court accepted the magistrate’s reasoning that the sentence was in the best interests of the appellant as required under the Juvenile Offenders Act as the School would offer the appellant a structured environment, constant care and supervision. Although the magistrate did not refer to the Penal System Reform Act 2000 when sentencing the appellant, the Court considered relevant the principles under the Act which require that a custodial sentence should only be used as a last resort and only for a period of time that is necessary. The Court considered the Act as a reflection of CRC Article 37(b) which requires the detention of a child to be a last resort and for the shortest appropriate period of time. The Court explained that detention of a young person should only occur when no other option is appropriate and took into account that in the appellant’s case other rehabilitative attempts had failed. The Court was satisfied that the magistrate took appropriate measures by obtaining necessary reports, considering the circumstances of the case, the appellant’s age and previous attempts at rehabilitation before imposing the sentence. The three year period was not considered to be excessive as this was the minimum custodial sentence to a School with the maximum period being five years. The Court found the sentence was necessary and proportionate as it related to both the breach of probation and the offence. The three year detention was considered to be in the best interests of the appellant and the appeal dismissed.
Excerpt citing CRC and other relevant human rights A custodial sentence should be used as a last resort… That observation is in keeping with Article 37(b) of the United Nations Convention on the Rights of the Child 1989, ratified by Barbados on 9 October 1990, the relevant part of which reads: “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.”
CRIN comments: CRIN believes this decision is not in compliance with the CRC. The detention of a child shall be taken as a measure of last resort and for the shortest appropriate time under Article 37.
Citation: Magisterial Appeal No. 4 of 2010
Link to full judgement: http://www.barbadoslawcourts.gov.bb/wp-content/uploads/2014/09/S.D-A-Minor-v.-The-Commissioner-of-Police.pdf