Research in progress: Making sense of “imprisonment as last resort” & the “shortest period of time"
How long is the “shortest period” of imprisonment for child offenders? A comparison between the laws of the Netherlands and South Africa might provide an answer.
In 2014 a South Africa child justice court convicted a child of having raped his sister, and then murdering her as well as their parents. These crimes took place on a farm in the Northern Cape, outside a remote village, Griekwastad. They were committed when the accused was 15 years old, and a “child” as defined in South African law. As a child he had to be tried in accordance with the Child Justice Act 75 of 2008.
Because of the gravity of the crimes, diversion was not an option, and a trial in a child justice court virtually inevitable. A child justice court normally sits in camera (there are no jury trials in South Africa). Although a different set of punishments is available for child offenders (compared to adults), the seriousness of the Griekwastad case meant that no sentence other than imprisonment was really in play. Indeed, when a child offender murders and rapes his victims, it is fair to say that imprisonment will normally be a last resort, as no other sentence can reflect the seriousness of the crime, and will satisfy the needs of society.
The Griekwastad boy was sentenced to 20 years’ imprisonment, which is five years short of the maximum permissible sentence for children. South African law acknowledges the “shortest period” principle, both in our Bill of Rights and in the Child Justice Act. The question is whether 20 years’ imprisonment is really the shortest period of imprisonment that could have been imposed in this matter.
The application of the shortest period principle in Dutch law provides an interesting and valuable counterpoint. In terms of the Wetboek vir Strafrecht a child of 15 years old (at the time of the crime) cannot be sentenced to more than one year’s jeugddetentie (section 77). However, sentencing such a child does not end with this short sentence of incarceration. Various additional control measures are at the disposal of the Dutch youth courts and a child committing such a serious crime in the Netherlands will probably be subjected to a variety of these measures. The precise position is determined by many factors, such as the date on which the crime was committed (because of recent amendments to the law), and the age of the offender (because at the age of 16 several aspects change).
I intend to complete an article comparing the outcome of the Griekwastad murderer with those sentences and measures that a Dutch youth court would most likely impose for a similar crime. The answer is not simple, but a thorough assessment of Dutch legislation and practice will provide an answer. That the South African offender has appealed against both his conviction and the sentence does not make the research any simpler, but these developments cannot stop the work of the researcher…