8
intend those sentences to apply to all offenders above the age of 16
years. If the legislature did not in fact intend the minimum sentences to
apply to child offenders aged 16 and 17 it would have explicitly excluded
that category of offender as it had children below the age of 16 (s51(6)).
Section 51(1) decrees that the minimum sentence must be imposed,
subject to ss3(a) and (b). Youthfulness per se would ordinarily constitute
a substantial and compelling circumstance. If a sentencing court intends
to impose the prescribed minimum then s51(3)(b) envisages that it set
out clearly its reasons for doing so. The scheme of the section serves to
remind a sentencing court to make ‘doubly sure’ that a youthful offender,
who has to be sentenced with caution, is deserving of the prescribed
minimum.
[9]
The minimum sentencing legislation must be read in the light of the
values enshrined in the Constitution and interpreted in a manner that
respects those values.
Section 51 distinguishes between adult
offenders and child offenders. Section 28 of the Constitution defines a
child as a person under the age of 18 years. Two categories of child
offenders are envisaged by the Act: first, those below the age of 16; and,
second, those between the ages of 16 and 18. The section does not
apply at all to a child who was under the age of 16 years at the time of
the commission of the offence (s51(6)).
For adult offenders, the
legislature has ordained life imprisonment or one of other prescribed