Chief Justice frees illegally held boy
The Chief Justice condemned the Family Court for unlawfully imprisoning a 14-year-old for almost five months for Corrective Training when he was too young.Freeing the child on appeal, Ian Kawaley described the sentence as “inexplicable” and “astonishing” and said: “One can only hope that the appellant came to no harm during his nearly five months’ detention in a place the law deems to be unsuitable for a child.”The child’s lawyer, Saul Dismont, said he fears similar things have “happened to a lot of children” but have never been met with a legal challenge before.Anyone under 16 is deemed to be a child in the eyes of the law and cannot be sentenced to custody, other than under a care order, according to the Chief Justice. Corrective Training can only be imposed upon a “young person” aged over 16 but under 18.The appeal heard that the boy — identified in court papers as ‘JS’ due to his age — had Corrective Training at the Co-Ed Facility imposed upon him “for an indeterminate period for various offences” by the Family Court on January 25, 2012, despite his age.Neither the prosecution nor the defence asked the Family Court panel — headed by Magistrate Tyrone Chin — to impose such a punishment.Mr Dismont asked for a probation order and Geoffrey Faiella of the Department of Public Prosecutions requested a care order.Mr Dismont argued during a June 6 appeal at Supreme Court that because the boy was only 14, the Family Court had no lawful power to impose Corrective Training.The Chief Justice agreed, and quashed the sentence in a ruling on June 13, replacing it with a residential care order.He noted in his ruling that punishing children with imprisonment is against the law according to the Young Offenders Act.The only options for punishment are an absolute or conditional discharge, a probation order, a fine, damages or compensation.In circumstances where an adult would be jailed, the child can be committed to the care of the Director of Child and Family Services or another “fit person”.Mr Justice Kawaley said: “In my judgment, it could not be clearer that Corrective Training is a punishment which cannot be imposed on a child under the Act in any circumstances.”He added: “Against this background, the imposition of a sentence of Corrective Training on a 14-year-old child by what is supposed to be a specialist child-centred tribunal is wholly inexplicable.“No reasons for this astonishing sentence were recorded in the Magistrate’s notes; nor were any comments added three months later when the record was being completed [for the appeal].”The Chief Justice said he found it “difficult to understand” why lawyers in the case — who realised the punishment was unlawful — waited for the appeal to be heard in the usual time frame rather than asking for it to be fast-tracked.He also stated: “I indicated to the still only 15-year-old child at the end of the hearing (perhaps inappropriately) that it was to be hoped that his illicit detention may bring home to him the sort of future that lies ahead if he does not avail himself of the assistance that he needs to tackle the problems which have contributed to his perturbing pattern of offending.”He warned: “The possibility that children may be diverted from the path of criminality by the ‘short, sharp shock’ of incarceration can never justify their detention in violation of statutory protections enacted for their welfare.“Sentencing courts must exercise constant care to ensure that no person accused or convicted of a criminal offence is unlawfully detained.”After upholding the teenager’s appeal, Mr Justice Kawaley freed him for one night to spend time with his family before beginning the residential care order.Speaking after the case, Mr Dismont told The Royal Gazette: “Sadly, I understand this treatment is not the exception. I have been told that it has happened to a lot of children, but it has never been legally challenged.“There is a similar attitude regarding people who have been detained at the police station for longer than the law allows. This happens all the time.“What message is being sent to society, especially the young, when the law is being ignored by some of those whose role it is to enforce it?”He added: “Young offenders are not demons or beyond hope. Many of them are kids going through a tough time or they’re troubled and require our help. Effective rehabilitation is key, not imprisonment.“JS has made a great contribution to the future treatment and protection of children.”The teenager’s family could not be reached for comment and Mr Dismont said he was unable to provide further details about the case, such as what offences JS was convicted of and where he is being housed during his care order.Responding to criticisms about delays in the case, he said appeal proceedings were launched straight after the sentence but delayed due to “administrative problems at court”.Invited to respond to the ruling, Magistrate Mr Chin replied: “I am unable to give a comment due to judicial protocol.”
Child welfare campaigner Sheelagh Cooper described the case of a 14-year-old boy who was unlawfully imprisoned for almost five months as “appalling” and “worrying”.
Chief Justice Ian Kawaley threw out the punishment, imposed by the Family Court, on appeal.
He said the teen was unlawfully sentenced to Corrective Training “for an indeterminate period” at the Co-Ed Facility, when this punishment should not be imposed on a child aged under 16 [see main story].
Reacting to the ruling, Mrs Cooper, of the Coalition for the Protection of Children, said: “The sentence was appalling, but more worrying is the fact that this child was one of the lucky ones who was provided with the legal support to appeal the sentence.”
The child’s lawyer, Saul Dismont, believes that similar sentences have been unlawfully imposed on “a lot of children,” but that none of those cases have been appealed.
Mrs Cooper said: “How many children have languished in the Co-Ed Facility for indeterminate lengths of time before this situation came to light?
“Apart from the issue of this child’s age, the whole concept of indeterminate sentencing for juveniles has come into question in many jurisdictions including Canada, the US and the UK. This case underscores the need for legal representation for juveniles, or at least more utilisation of the provision for a guardian.”
In his ruling, the Chief Justice said the authorities should never seek to deliver a “short sharp shock” to children by unlawfully incarcerating them.
Mrs Cooper said: “We certainly cannot claim to be embracing the principles of restorative justice when this type of harsh treatment is imposed on early teenagers.
“If anything, cases like this ought to be handled through a process of ‘circle sentencing’ which is very successful elsewhere with juveniles.
“This involves the facilitation of a problem-solving dialogue which includes the offender, the parents, the prosecution, the victims and the relevant stakeholders.
“Through this process, the offender is held accountable for his actions and a consequence is meted out and agreed, which contains a provision for compensation, restitution and apologies, as well as in some cases a punitive component.”
Martha Dismont of The Family Centre said: “I am unfamiliar with this case, but the situation is concerning”.
She said there are an increasing number of cases coming before the Family Court and “therefore it must be quite difficult to identify the correct response for each case”.
However, she added: “That should be their job to figure this out. We live in a small society and sometimes it is difficult to make decisions that we know, in the long run, are best for offenders. We often find that the ‘right’ or ‘unpopular’ thing is not done because of fear of being the target of very harsh criticism often meted out by those with very strong opinions.
“I also believe that Bermuda’s criminal justice system is quite frustrated with the lack of alternative options for lesser criminal offences and for younger offenders, and may have chosen to rely on what they perceive as their only alternative containment.
“This has not proven to be useful, certainly is not rehabilitative, and the system must instead demand rehabilitative programmes that meet the needs of young offenders, and provide renewal and restorative justice.”
Useful websites: www.coalition.bm, www.tfc.bm.
