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[2021] ZAKZDHC 11
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S v G.K.R.P (Sentence) (CCD39/2019) [2021] ZAKZDHC 11 (26 March 2021)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
REPORTABLE
Case
no.: CCD39/2019
THE
STATE
versus
G[...] K[...] R[...]
P[...]
Sentence
delivered
26
March 2021
MOODLEY J
[1]
The accused in this matter G[...] K[...] R[...] P[...] was convicted
on 33 charges on 11 December 2020. Sentence proceedings
have been
delayed because the practice directions issued to regulate the
sittings of this court as a result of the impact of the
Covid
pandemic did not accommodate this matter.
[2]
The State is still represented by Ms S Naidu and the accused
continues to be represented by Mr T P Pillay of the Durban Justice
Centre, although he is not participating in the proceedings. Prior to
the commencement of sentence proceedings Mr P[...]consulted
with the
accused, who has been brought to the Court so that he is available to
give instructions, should the need arise. Mr P[...]has
confirmed that
the accused’s previous instructions remain in place.
Previous convictions
[3]
Mr P[...]also confirmed that the accused had confirmed and signed the
SAP 69 which reflected his previous convictions. The State
has
therefore proved the following previous convictions against the
accused :
i.
On 28 April 2005 the accused was convicted
of Assault committed on 25
Jan 2005 and sentenced to a fine of R400
ii.
7 April 2006 the accused was convicted of Assault
and Malicious
Damage to property committed on 4 Nov 2004. Both counts were taken as
for the purposes of sentence and a sentence
of a fine of R400 or 40
days imprisonment was imposed on him and he was declared unfit to
possess a firearm.
[4]
The right to a fair trial is not confined to the process of
determining guilt or innocence but extends to the sentencing process.
Therefore, in determining sentence, the court should remain
dispassionate and carefully weigh the relevant facts and factors in
order to fulfil its responsibility and function to ensure that a
convicted offender is treated fairly, and not be swayed by public
sentiment.
[5]
In my deliberations on appropriate sentences in this matter, I have
remained mindful that although the Accused has been convicted
on 33
counts, and refuses to participate in the sentence proceedings except
through instructions to his counsel, the accused’s
constitutional fair trial rights must not be flouted or ignored, and
that further the appropriate punishment for each count individually
and all counts cumulatively must be determined within the applicable
constitutional and statutory framework. Therefore even though
the
accused refuses to address the court directly but has instructed his
counsel to make submissions on his behalf, the court must
ensure that
all relevant facts and factors relating to sentence are placed before
it, in order to ensure that this court may exercise
its sentencing
discretion judicially.
[6]
These factors include the personal circumstances of the accused, the
context within which the crimes were committed, the relationship
between the accused and the complainant, the accused’s
attitude, the professional assessment of the complainant and her
responses to the accused and the offences perpetrated on her. When
life imprisonment is a prescribed minimum sentence, the court
must
have sufficient information before it to justify that sentence.
[7]
The court must also evaluate whether there are any substantial and
compelling circumstances which warrant a deviation from the
prescribed sentences for certain of the offences to which the minimum
sentence legislation applies. It is not in dispute that the
Accused
was fully appraised of the relevant minimum prescribed sentences. The
8 counts of rape in contravention of s 3 read with
the other relevant
sections of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
as amended(‘the CL(SORM)AA’), is
further read with
s51(1)
and
Part 1
of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (the CLA), which prescribes a minimum
sentence of life imprisonment.
[8]
It is trite that while the CLA does not fetter the judicial
discretion of a sentencing court which is obliged to weigh all
considerations traditionally relevant to sentencing (S v Dodo 2001(1)
SACR 594(CC) at para 11), the court ought not deviate from
the
minimum prescribed sentence unless warranted by the finding that
there are substantial and compelling circumstances to do so,
as held
in
S
v
Malgas
2001(1)SACR
469(SCA) at para 8 and 25B. But even when prescribed sentences are
departed from, the CLA continues to have an impact
on sentencing as
explained in
S
v Abrahams
2002(1)SACR116 (SCA)
at para 25, ‘The prescribed sentences the Act contains, play a
dual role in the sentencing process…
Even where such factors
[compelling a different sentence] are present, the sentences the Act
prescribes create a legislative standard
that weighs upon the
exercise of the sentencing court’s discretion. This entails
sentences for the scheduled crimes that
are consistently heavier than
before.’
[9]
During the sentencing proceedings the defence did not call any
witnesses. The State led the evidence of Ms V Naidoo a social
worker
with the Department of Social Development stationed at Phoenix who
was assigned the case of the complainant in this matter
in June 2018.
She explained that prior to the assignment of the case to her, the
maternal family of the complainant had reported
to the local Child
Welfare service that the accused refused them contact with her. The
accused refused to cooperate with the social
workers and he
thereafter disappeared with the complainant.
[10]
Ms Naidoo testified that while at the Home where she had been placed
in June 2018, the complainant had felt secure because
she was
constantly monitored and the premises were safe. She initially
suffered intense nightmares about the accused pursuing her;
but her
anxiety about the accused had lessened and she had become less
withdrawn over the period of time, and was able to engage
in
meaningful relationships. However she is two years behind with her
schooling, not because of any intellectual challenge but
because she
had not completed the year as a result of the disruptive lifestyle
she had led. The complainant had been referred to
a psychologist and
had slowly adjusted to being at school.
[11]
The complainant has since December 2020 been living with one of the
families who were willing to foster her. She was placed
with the
family of her maternal aunt and uncle after several interim contact
sessions. The complainant nevertheless experienced
difficulty
adjusting to the family environment but has received much support
from her new family and is more at ease, and is beginning
to
establish relationships with them. She was initially very concerned
about exposure to the Accused again and still suffers nightmares
that
the accused will take her away. Her emotional well being was
extremely compromised but she is slowly regaining control of
herself.
The complainant’s foster placement is being finalised but she
will receive continuous monitoring by the social services
and any
other intervention as required. The teachers at her school have been
very supportive. The complainant has been assured
that there are
people that she can reach out to, but she is also aware that she is
responsible for and must take care of herself.
[12]
The Victim Impact Report, as regulated by
s70
of the
Child Justice
Act 75 of 2008
, which is intended to reflect the physical,
psychological, social, financial or any other consequences of the
offence for the victim,
was completed by the complainant herself. The
report was admitted by consent, and the contents thereof read into
the record.
Submissions by Counsel
[13]
Mr P[...] placed the personal circumstances of the accused on record.
He was born on […] 1975 and is 46 years old. He
is the eldest
of 3 siblings. He matriculated in 1995 and obtained an NQF
qualification on Electrical and Mechanical Engineering
at the
Witwatersrand Technical College in 1996. He was employed by the SADF
for 5 years and by ESKOM for 7 years. At the time of
his arrest he
was employed by SANRAL as a general maintenance manager and received
a monthly salary of R35 000. He owns no property.
[14]
The Accused was previously married but is divorced. He has two
daughters of 21 years and 17 years who were born of that marriage.
He
has a third daughter who is 9 years old from another relationship. He
has suffered three medical conditions since birth –
cardiac,
hypertension and diabetes.
[15]
Mr P[...] also pointed out that the Accused’s previous
convictions were not related to his current convictions and that
the
Accused had spent more than 2 years in custody pending finalisation
of the trial. Mr P[...] also properly conceded that he
was
constrained by the graphic evidence before the court, the impact of
the offences as described by the social worker and the
complainant
herself, and unable to advance compelling and substantial
circumstances to warrant a deviation from the prescribed
minimum
sentences, but he urged the court to remain mindful that the Accused
is a first offender in respect of the rapes and to
balance the
aggravating and mitigating factors when imposing sentences on the
offences to which the CLA did not apply.
[16]
In her address, Ms Naidu emphasised the severity of the impact of the
deviant conduct of the accused on the complainant, and
that her
childhood had been deliberately destroyed by the accused, as
demonstrated by the Victim Impact report. She pointed out
that had
the complainant not confided in her neighbour the sexual violations
and abuse would not have been exposed, and as the
evidence showed,
there was a likelihood that the accused would have trafficked the
complainant more frequently. He had already
violated her in one of
the worst ways possible with the man they had been to the hotel with,
and he had planned further trafficking
with C[...] and the unknown
minor child who had allegedly had a sexual relationship with her
father.
[17]
Ms Naidu emphasised that the accused was
de facto
the parent
of the complainant, but instead of protecting her he took advantage
of the complainant and abused her body and sexually
exploited her in
every way possible. She provided horrifying statistics which reveal
that at least 42% of the children in South
Africa have been
ill-treated, whether by being physically abused or sexually
exploited, by persons whom they knew and who ought
to have protected
them. This is a shocking ratio of one in every three children. Ms
Naidu therefore submitted that the court should
not determine any of
the sentences lightly, as the interests of society dictated that the
courts should not impose inappropriately
light sentences for such
serious and increasingly prevalent crimes.
[18]
Ms Naidu submitted that the Accused deliberately, by choice and with
full intent and knowledge perpetrated the offences on
the
complainant, but in a cowardly fashion he refused to remain in court
while his wrongdoings were exposed under cross- examination.
She
described him as ‘an inveterate liar’ who even lied about
his personal circumstances as it was common cause that
at the time of
his arrest he was employed at Mamba Maintenance and not Sanral. She
therefore submitted that the sentences should
reflect the abhorrence
of the accused’s moral blameworthiness and that he was
undeserving of any mercy, and incapable of
rehabilitation. Further
the sentences should act as a deterrence which would assist in the
combat against sexual offenders and
therefore serve the interests of
society.
Legal principles
[19]
In
S v PB
2013
(2)
SACR
533
(SCA)
at para 19 Bosielo JA stated:
'.
. .it remains an established principle of our criminal law that
sentencing discretion lies pre- eminently with the sentencing
court
and must be exercised judiciously and in line with established and
valid principles governing sentencing . . . .’
These
established and valid principles as set out in
S v Zinn
1969
(2) SA 537
(A) at 540G-H are that the punishment should fit the
offender and the offence, the interests of society must be considered
and
there should be a measure of mercy. The court must also consider
the main purposes of punishment which are deterrence, reformation
or
rehabilitation and retribution.
I
also acknowledge that I been guided in my deliberations by A Guide to
Sentencing in South Africa 3rd edition 2016 by SS Terblanche.
The offences
[20]
Terblanche states that first and foremost, the sentence should
reflect the severity of the crime. The modern approach to determining
the seriousness of a crime is that consists of the following two
considerations: (1) the degree of harmfulness of the offence,
and (2)
the degree of culpability of the offender
[21]
The facts of the offences for which the accused must now be sentenced
have been set out in detail in the judgment. It is nevertheless
appropriate to highlight the following pertinent facts: Even before
the sexual assaults on the complainant commenced, the accused
removed
and isolated the complainant from her mother’s family. Then he
moved with the complainant from house to house in
different provinces
and areas within Kwa-Zulu Natal. Therefore he prevented her from
putting down roots or having a stable home
environment or making
friends and developing relationships or a sense of security, all of
which were essential to her development
during her childhood years.
[22]
The accused also deprived the complainant of her constitutional right
to education in order to enhance her isolation and to
avoid his abuse
and violation of the complainant being exposed. While they lived in
Ottowa, when the accused suspected that someone
was spying on them,
he did not desist from sexually violating the complainant . Instead
he took the complainant to the beach and
raped her there, despite her
fear of being in the dark on the beach.
[23]
It is not that the accused lacks insight or was not aware of the
consequences of his actions. The culpability of the accused
is
aggravated by his cunning and deliberate subjugation of the
complainant to his narscissm and immoral practices. In court we
observed that the accused was tall and physically imposing and in his
confrontation with the security personnel, he towered over
them. The
complainant is very much smaller and slight in build, and an immature
child who was totally dependant on him for shelter,
care and support.
She testified that there were times when she was tired by the
accused’s persistent sexual demands on her,
but that he would
not desist, and become angry if she said she was tired. She told the
court that she was afraid of the accused’s
anger and afraid
that he would carry out his threat to ‘put her where her mother
was’, by which she understood he would
kill her.
[24]
The accused ravaged the complainant not only physically but he
wrought untold damage on her mind and psyche. This is evident
in her
recurring nightmares that the accused would return to take her away,
and her inability and reluctance to establish relationships
which
will sustain her and provide her with the affection and stability she
clearly craves. In perpetrating the physical violations
on the
complainant the accused capitalised on her helplessness because she
was bereft of family or adult support, and effectively
blackmailed
her into cooperating with his depravity by telling her that her
mother was willing to perform such sexual acts with
and on him.
[25]
The complainant expressed her own discomfort at having to perform the
sexual acts the accused instructed her to do. I am certain
that there
was an inherent revulsion to these acts in the complainant, but she
was too immature and helpless to rebel against it.
This innate
revulsion was apparent in her evidence that she felt compelled to
cooperate because the accused told her that her mother
had done so.
Yet she described the other adult female who performed sexual acts
with the accused ie C[...], as ‘creepy’
and was
forthright in her dislike of the woman. Her revulsion was even more
apparent in her refusal to have sexual intercourse
with an unknown
man in the hotel room which the accused facilitated, although she
performed other acts as she was instructed. I
agree entirely with Ms
Naidu’s submission that this prostitution of the complainant,
and the simultaneous rape by the accused
was a complete betrayal and
violation of her physical, mental and emotional integrity.
[26]
The seriousness of the offence of rape and similar sexual violations
and trafficking cannot be overemphasized. There is a substantial
body
of authority that supports this evaluation, including the remarks by
Mohamed CJ in
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) :
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim.
The
rights to dignity, to privacy, and the integrity of every person are
basic to the ethos of the Constitution and to any defensible
civilization.
Women
in this country are entitled to the protection of these rights. They
have a legitimate claim to walk peacefully on the streets,
to enjoy
their shopping and their entertainment, to go and come from work, and
to enjoy the peace and tranquillity of their homes
without the fear,
the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives.’
How
much more humiliating, degrading and brutal invasion of the privacy,
the dignity and the person of the victim when the victim
is a young
helpless child of 9 years.
[27]
The facts also leave no doubt that the accused intended trafficking
the complainant and was grooming her, even enlisting one
of his
girlfriends to assist. It is apparent that he recorded his sexual
acts to feed his own narcissism, but the accused had a
darker and
more depraved intent. He posted some of the photographs and videos on
the internet to attract paedophiles. The complainant
testified
several times that the accused was going to make money by making her
perform sexual acts on other men. Under s 56A (2)
of the CL(SORM)AA,
‘If a person is convicted of any offence under this Act, the
court that imposes the sentence shall consider
as an aggravating
factor the fact that the person (a) committed the offence with the
intent to gain financially, or receive any
favour, benefit, reward,
compensation or any other advantage…’
[28]
The Accused was also on the lookout for other vulnerable children by
prowling the internet, and did in fact make contact with
a young girl
whom he expressed the desire to have sexual intercourse with while he
offered the complainant to the child’s
father. Trafficking is a
serious crime, which extends the problem of rape and sexual violation
out of the home and into the wider
community and exposes the victims
to violence, drug abuse and even death. The accused had also
introduced the complainant to cannabis.
Hence the proven facts in the
counts of trafficking are highly significant to the assessment of the
seriousness of the relevant
offences, and the sentence warranted.
The offender
[29]
Mr P[...] placed on record the personal circumstances of the accused
as aforesaid. I have little doubt that the accused is
not
intellectually challenged and is capable of being in gainful
employment. Mr J[...] P[...] testified that the accused had a
good
relationship with his colleagues. He therefore has good interpersonal
social skills. This is also illustrated in the number
of
relationships the accused has had with various women, some of whom
shared his exhibitionism and enjoyment of watching themselves
on
camera. One question that comes to mind immediately is why the
accused had to violate the complainant when he did not lack female
company and sexual relationships with adult women. In fact he has
three children of his own – all young girls. Yet he had
no
compunction in violating a young child whom he claimed he considered
his own.
[30]
The accused’s deception and anger at being exposed was evident
when he pretended to shed tears in court while alleging
that he had
abandoned his own last born child, in order to take care of the
complainant and then spit vitriol about being betrayed
by the
complainant. Yet the betrayal was by
him,
as he displayed no
paternal instinct to protect or nurture the complainant. In terms of
s 32 of the Children’s Act 38 of 2005
(the Children’s
Act), as he voluntarily assumed parental responsibility for the
complainant, the accused was ‘obliged
to (a) safeguard the
child's health, wellbeing and development; and (b) protect the
child from maltreatment, abuse, neglect,
degradation, discrimination,
exploitation, and any other physical, emotional or mental harm or
hazards.’ He clearly failed
to comply with these obligations.
Instead, his arrogance clearly overwhelmed his perception of the
seriousness of his abuse and
immoral treatment of the complainant. He
also cared not about the impact of his conduct on his own children.
[31]
Ms Naidu’s description of the accused as an inveterate liar is
warranted. He showed little respect for the court or the
truth. He
passionately disputed the allegations against him, and attempted to
convince the court that he had cared deeply for the
complainant. When
confronted with the allegations that he had taken the complainant to
the beach late at night, he responded vehemently
that he had never
taken her to the beach at night. He had taken her to the beach during
the day, and while she played in the rockpools,
he went to the Spar
and bought food from the delicatessen. He also stated that it was
winter when these incidents allegedly occurred
and he would certainly
not take her out in the cold nor he would go out in the cold himself.
He alleged that the only way in which
he touched the complainant was
‘the way in which a father would express his love for his
child’.
[32]
However, the truth about the night visits to the beach, as related by
the complainant, was corroborated by Mr J[...] P[...]
who even
described the clothes worn by the complainant because he heard the
accused leave and observed him return with the complainant
in the
early hours of early June 2018. Further as the accused’s
defence unravelled under cross-examination, mainly through
his own
admissions, he displayed his arrogance and aggression, which bordered
on deteriorating into violence, when he stormed out
of the witness
box and confronted the security personnel while swearing in vulgar
and abusive language. This after testifying that
he ‘never ever
swore or used vulgar language’.
[33]
The accused has certain illnesses but has received treatment therefor
and has survived well in custody for two years. There
is no reason to
believe that he will not continue to receive the same medical care
when a custodial sentence is imposed.
[34]
Mr P[...] properly conceded that he was unable to advance any
substantial or compelling circumstances in respect of the convictions
which have prescribed minimum sentences. The only mitigating factor
is that the Accused is a first offender in respect of the current
convictions. But balanced against that factor is the fact that he
committed certain of the offences, specifically the rapes, multiple
times. As Terblanche states, a first offender is treated with
mitigation because the offender might prove to not likely to repeat
the crime. However, the nature of the crime and the callousness and
brutality of the offender’s actions may show that he
has no
regard or respect for other people. In such a case, the interests of
society become more important than the interests of
the individual.
For these reasons, it is sometimes appropriate that first offenders
are not entitled to non-custodial measures.
The interests of society
[35]
As the third point of the Zinn Triad, a sentence must serve the
interests of the community. In determining what is in the interests
of the community, the court must consider the effect of the offences
of which the accused has been convicted on the community.
The
interests of the public must be considered when the element of
retribution is considered, as the administration of justice
and the
confidence of the public in the courts must not be undermined by the
imposition of inappropriately light sentences for
serious and
prevalent crimes. It is distressing that a court can take judicial
notice that the rape and trafficking of young children
and other acts
of sexual and physical violence are rife in our society. The
President of this country mentions Gender Based Violence
and the need
to address the protection of vulnerable children and women in
practically every public address. This is a reprehensible
social
issue that affects all citizens irrespective of financial or social
status or creed.
[36]
In
Chapman
, Mahomed CJ stated with assurance that ‘’
The Courts are under a duty to send a clear message to the accused,
to other
potential rapists and to the community: We are determined to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade those rights.”
However
the startling and horrific statistics quoted by Ms Naidu indicate
despite that assurance given over 24 years ago, appropriately
severe
sentences are required now more than ever before to punish offenders
against children and to act as a general deterrent
to like minded
persons, upon whom it must be impressed that the court will not
hesitate to impose severe sentences for serious
crimes like child
abuse, rape and trafficking which have reached endemic proportions
nationally and globally.
[37]
Nevertheless, I remain mindful that the deterrence intended by the
sentence must also be individualised in relation to the
accused and
that the accused ought not to be sacrificed on the altar of
deterrence by a sentence where the individual is treated
harshly and
unfairly in the hope, not knowledge, that such treatment would
prevent other potential crimes and promote law-abiding
conduct in the
community at large. In
S v Furlong
2012 (2) SACR 620
(SCA)
para 14 the court warned that:
‘…
a court must not allow
the retribution demanded by the community and the deterrence of the
accused and other like-minded persons
intended by the sentence, to
detract from its responsibility to consider the prospects of
rehabilitation of the accused.’
[38]
But what are the prospects of rehabilitation of the accused? He is
relatively young – 46 years old. Some expression of
remorse may
indicate a receptiveness to rehabilitation. But the accused has
displayed no remorse whatsoever – even when exposed
by his own
admissions eg identifying sex toys under cross-examination which he
denied any knowledge of in his evidence in chief.
Instead, he berated
the complainant for exposing him, and became incensed and aggressive
towards the prosecutor and the Court.
[39]
It is also an accepted sentencing principle that when serious
offences are committed, and the circumstances under which such
offences are committed warrant it, rehabilitation must be subjugated
to deterrence and retribution. This is clearly such a case.
I am
satisfied that the interests of the society demand that an offender
of the accused’s ilk and proclivities must be removed
from
society for as long as is lawfully appropriate, because of the
cruelty of the Accused’s deliberate and constant sexual
assaults on the complainant over a period of more than a year, and
his expressed intention to traffick the complainant further
and to
violate another child.
[40]
Not only am
I fortified in my determination by the provisions of the CLA which
demands
standardised and consistently severe sentences for the relevant
crimes, but also by the provision in the Children’s
Act
[1]
for a National Child Protection Register for
the
recordal of the names of persons convicted of sexual offences against
children to
prevent
such
persons
from
working
with
children.
There
is
little
that
inclines
me
to
mercy
towards the accused.
The Offences and Sentence
[41]
In my
judgment I have indicated that some convictions should be taken
together
for the
purposes of sentence. I am also cogniscent that an order that
sentences run
concurrently
is
called
for
where
the
evidence
shows
that
the
relevant
offences
are
'inextricably
linked in terms of the locality, time, protagonists and, importantly,
the fact
that they
were committed with one common intent’. (See
S
v Mokela
2012
(1)
SACR
431
(SCA)
para 11)
[42] Counts 7 8 9,
28 29 30 42 and 43 : Rape
In
S v Matyityi
2011 (1) SACR 40
SCA, Ponnen JA stated at Paragraph
[23] at 53
c–g
that ‘...Courts were not free
to subvert the will of the legislature by resort to vague, ill-
defined concepts or other equally
vague and ill-founded hypotheses
that appeared to fit the particular sentencing officer's notions of
fairness. Predictable outcomes,
not outcomes based on individual
whim, were foundational to the rule of law that lay at the heart of
the constitutional order.’
In the absence of any substantial
and compelling circumstances, and because the minor child below the
age of 16 years was raped
multiple times by the accused, I am
constrained to impose the minimum sentence prescribed by S51(1) and
Part 1 of Schedule 2 of
the
Criminal Law Amendment Act 105 of 1997
of
life imprisonment on each of the 8 counts.
Sentence : Counts 7 8 9,
28 29 30 42 and 43 – Life imprisonment on each count
[43]
Counts 12 and 48 : Sexual Grooming of Children
The
sentence must be imposed in terms of s 276 of the Criminal Procedure
Act 51 of 1977 (the CPA) and Section 120 of the Children’s
Act.
The conviction related to the accused frequently exhibiting films or
recordings depicting sexual conduct between adults to
the minor
complainant on a cellular phone, with the intention to encourage,
enable, instruct or persuade her to perform such similar
sexual acts
in order to procure money.
Sentence : Count 12
and 48 - 7 years on each count.
[44]
Counts 13 and 36 (main count) Using a child for pornography
These
convictions which relate to the accused unlawfully and intentionally
recording the complainant on his cellphone, thereby creating
child
pornography depicting the complainant, are read with Section 51(2)
and Part 111 of Schedule 2 of the CLA. The prescribed
minimum
sentence for a first offender is 10 years imprisonment. Given the
aggravating factors that the recordings were made on
a regular basis
and the intention of the Accused to benefit from the pornography by
publishing it on the internet, I am of the
view that a sentence in
excess of the prescribed minimum sentence is warranted.
Sentence
:
Counts 13 and 36
-
12
years imprisonment on each count.
[45]
Counts 14 and 37 Possession of Child Pornography: (taken as one for
the purposes of sentence)
These
convictions relate to accused’s unlawful and intentional
possession of child pornography of the complainant and an unknown
female child. As these convictions are related to the aforegoing
convictions, I am of the view that a lesser sentence is warranted
and
the sentences should be ordered to run concurrently with the
sentences imposed on counts 13 and 36.
Sentence: Counts 14 and
37 (taken as one for the purposes of sentence)- 5 years imprisonment
ordered to run concurrently with the
sentences imposed on Counts 13
and 36.
[46]
Counts 15 and 38 : Distribution of Child Pornography:
These
counts relate to the distribution of depictions or scenes of child
pornography of the complainant by the Accused. Aggravating
factors
are his intention to benefit from such distribution financially or
otherwise and the exposure of the complainant to sexual
exploitation.
Sentence: Counts 15
and 38 (taken as one for the purposes of sentence)- 10 years
imprisonment.
[47]
Counts 16 17 18 31 32 and 33 Compelled Self-sexual
Assault:
These
charges in contravention of the provisions of the CL(SORM)AA are read
with relevant provisions of the CPA and S 120 of the
Children’s
Act, and relate to the accused compelling the complainant:
Count
16 and 31:
to engage in self masturbation and/or a
sexuality suggestive acts
Count
17 and 32
: to wear and pose revealing adult lingerie while he
photographed and/or recorded her.
Count
18 and 33 :
to use sex toys.
I
hold the physical degradation and emotional trauma caused to the
vulnerable and young complainant by these acts to be aggravating
factors.
Sentence
:
Count
16 and 31 ( taken as one for the purposes of sentence) – 10
years imprisonment
Count
17 and 32( taken as one for the purposes of sentence)- 10 years
imprisonment
Count
18 and 33 (taken as one for the purposes of sentence) - 10 years
imprisonment
[48]
Counts 19 40 and 41: Trafficking
These
convictions are premised on the court finding that the Accused
contravened provisions of the
Prevention and Combating of Trafficking
In Persons Act 7 of 2013
; read with the relevant provisions of
the CL(SORM)AA; further read with the relevant provisions of the
Children’s Act
and the CPA and
S51(1)
and
Part 1
of Schedule 2
of the CLA The prescribed minimum sentence for trafficking under the
CLA is life imprisonment.
The
conviction on Count 19 relates to the accused trafficking the
complainant by restricting her to the confines of their residences
by
means of threats or use of harm and/or other forms of coercion for
the purposes of sexual exploitation for his own gratification
and in
preparation for the complainant to be made available to other unknown
persons for the purpose of sexual exploitation in
order to procure
payment from them for the benefit of the accused and/or C[...].
The
conviction on Count 40 relates to the accused similarly trafficking
the complainant at 24 Neptune Drive on diverse occasions
during the
period March 2018 – 11 June 2018.
The
conviction on Count 41 relates to the accused trafficking the
complainant by making her available to an unknown man at an unknown
address in the Durban area where he demanded that the complainant
perform sexual acts with the said unknown male and himself
simultaneously
for the purpose of sexual exploitation in order to
procure payment from the said unknown male for the benefit of the
accused.
Having
considered the facts pertaining to each of the charges and despite
the aggravating factor that the trafficking extended over
a period of
almost 1 year, I am of the view that the minimum prescribed sentence
is too harsh in respect of counts 19 and 40 as
the accused has
already been sentenced to life imprisonment for the rapes that he
perpetrated during this period and sentenced
to various periods of
imprisonment for the other unlawful acts he committed during this
period. However the same reservation does
not apply to Count 41 and I
am satisfied that the minimum prescribed sentence is warranted.
Sentence
:
Counts
19 and 40 -
20 years imprisonment on each count
Count 41 – Life imprisonment
[49]
Count 20: Conspiracy to Commit a Sexual Offence
This
conviction relates the accused conspiring with C[...] to sexually
exploit the complainant by sexually grooming her in preparation
for
making her available to unknown men for the purposes of engaging in
sexual acts for profit.
Sentence
:
Count 20 – 5 years imprisonment
[50]
Counts 24 and 34: Compelling or
Causing Chidren to Witness Self-
Masturbation
These
convictions relate to the accused compelling the complainant to be in
the presence of or watch him and/or C[…] while
they engaged in
an acts of self- masturbation, and to photograph the accused while he
engaged in an acts of self- masturbation.
Sentence: Counts 24 and
34 (taken as one for the purposes of sentence)- 7 years imprisonment
[51]
Count 27 and 46 : Child Abuse
The
conviction on Count 27 relates to the accused confining the
complainant mainly to their homes in the Durban area and ill-treating
her by failing to enrol her at a school and/or preventing her from
attending school and confining her in the home and demanding
that she
clean the house.
The
conviction in Count 46 relates to the accused not only by confining
her mainly to their home and failing to enrol her at school
while
living in Ottowa, but also making her cook and facilitating the
complainant smoking cannabis.
As
these convictions are based on a contravention of
ss 305(3)(a)
of the
Children’s Act, the penalties in
ss 305(6)
and
305
(7), are
applicable to the sentence to be imposed:
S305
(6) provides that a person convicted of an offence in terms of
subsection (3) is liable to a fine or to imprisonment for a period
not exceeding ten years, or to both a fine and such imprisonment.
S305(7)
provides that a person convicted of an offence in terms of subsection
(3) more than once is liable to a fine or imprisonment for
a period
not exceeding 20 years or to both a fine and such imprisonment.
A
relevant aggravating factor in these counts is that the complainant
has fallen behind 2 years in her school education, and is
struggling
to establish social relationships. Another aggravating factor is her
exposure to cannabis. A fine does not seem an appropriate
option.
Sentence
Count
27 and 46 (taken as one for the purposes of sentence under
s 305(7)
of
the Children’s Act 38 of 2005) – 15
years imprisonment .
[52]
Count 39 Compelling or causing Children to witness Sexual Acts
This
conviction relates to the accused using sex toys in the presence of
the complainant for his sexual gratification.
S56A
(2) of the
CL(SORM)AA provides that if a person is convicted of any offence
under this Act, the court that imposes the sentence
shall consider as
an aggravating factor the fact that the person•
(a)
committed the offence with the intent to gain financially, or receive
any favour, benefit, reward, compensation or any other advantage;
or
(b)
gained financially, or received any favour, benefit, reward,
compensation or any other advantage
from
the commission of such offence.
Sentence: Count 39 - 5
years imprisonment
[53]
Count 47 Incitement or Inducing Another Person to Commit a Sexual
Offence
This
conviction is related to the accused’s communications in
WhatsApp messages through which he induced or incited an unknown
adult female to commit a sexual act with the complainant.
Sentence: Count 47
- 5 years imprisonment
[54]
Count 54 Sexual Exploitation of Children (Being Involved in the
Sexual Exploitation of a Child)
This
conviction involves the contravention of the relevant provisions of
the CL(SORM)AA, read with the relevant provisions of the
CPA and
further read with s51(2)(B) read with part 3 of Schedule 2 of the
CLA, which provides that a first offender shall be sentenced
to a
term of imprisonment of not less than 10 years.
This
conviction relates to the accused’s WhatsApp conversation with
a young unknown female child, during which he incited
the said child
to send him pornographic images of herself and to commit sexual acts
with him whilst the complainant would perform
sexual acts with the
child’s father. In order to facilitate this interaction amongst
the four of them, the accused sent pornographic
images of himself and
the complainant to the said child. In the absence of any substantial
and compelling circumstances, I am satisfied
that the prescribed
minimum sentence is appropriate.
Sentence: 10 years
imprisonment
[55]
Entry in the National Child Protection Register
(i)
In terms of S120 of the Children’s Act 38 of 2005,
the accused
is declared to be a person unsuitable to work with children, and it
is directed that his particulars be entered in
Part B of the National
Child Protection Register.
(ii)
In terms of S122 of Children’s Act 38 of 2005, the Registrar
of
this Court is directed to notify the Director•General of the
Department of Social Development in writing of the finding
of this
court in terms of section 120 that the Accused, G[...] K[...] R[...]
P[...], has been declared a person unsuitable to work
with children.
Summary of sentences
imposed:
1
Count 7 - Life imprisonment
2
Count 8 -Life imprisonment
3
Count 9- Life imprisonment
4
Count 12 - 7 years imprisonment
5
Counts 13
-
12 years
imprisonment
6
Counts 14 and 37 (taken as one for the purposes of sentence)- 5
years
imprisonment;
the
sentence
is
ordered
to
run
concurrently
with
the
sentences imposed on Counts 13 and 36.
7
Counts 15 and 38
(taken as one for the purposes of
sentence)-10 years
imprisonment.
8
Count
16
and
31
(
taken
as
one
for
the
purposes
of
sentence)
–
10
years imprisonment
9
Count 17 and 32( taken as one for the purposes of sentence)- 10
years
10
imprisonment
11
Count 18 and 33 (taken as one for the purposes of sentence) - 10
years
12
imprisonment
13
Counts 19 -
20 years imprisonment
14
Count 20 – 5 years imprisonment
15
Counts 24 and 34 (taken as one for the purposes of sentence)-
7 years
imprisonment
16
Count 27 and 46 (taken as one for the purposes of sentence under s
305(7) of the Children’s Act 38 of 2005) – 15
years imprisonment
17
Count 28 -
Life imprisonment
18
Count 29 -
Life imprisonment
19
Count 30 -
Life imprisonment
20
Count 36
-
12 years imprisonment
21
Count 39 : 5 years imprisonment
22
Count 40 – 20 years imprisonment
23
Count 41 – Life imprisonment
24
Count 42 – Life imprisonment
25
Count 43 – Life imprisonment
26
Count 47: 5 years imprisonment
27
Count 48 - 7 years imprisonment
28
Count 54 : 10 years imprisonment
By
operation of law the sentences imposed
on all other counts will
run
concurrently with the sentence of Life imprisonment imposed on Count
7.
Entry
in the National Child Protection Register
(i)
In
terms
of
S120
of
the
Children’s
Act
38
of
2005,
the
accused
is
declared
to
be
a
person
unsuitable
to
work
with
children,
and
it
is
directed
that his particulars be entered in Part B of the National Child
Protection Register.
(ii)
In terms of S122 of Children’s Act 38 of 2005, the
Registrar of this Court
is directed to notify the
Director General of the Department of Social
Development
in writing of the finding of this court in terms of section
120 that the Accused, G[...] K[...] R[...] P[...], has been
declared
a person unsuitable to work with children.
Date
of judgment: 11 December 2020
Date
of Sentence Proceedings: 24 March 2021
Date
of Sentence: 26 March 2021 Appearances
For
the State Ms S NAIDU
Office
of the Director of Public
Prosecutions, Durban
Cell:
083 301 4004
Email:
snayager@npa.gov.za
For
the Defence Mr TP Pillay
Legal
Aid South Africa Durban Office
Phone
: 031 304 0100
Email:
ThiagrajP@legal-aid.co.za
[1]
Part 2 National Child Protection Register (ss 111-¬128A)