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[2021] ZAGPPHC 888
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S v Obono (Sentence) (CC65/2020) [2021] ZAGPPHC 888 (29 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case No: CC65/2020
REPOTABLE: YES
OF INTEREST TO THE
JUDGES: YES REVISED: YES
DATE 29/04/2021
SIGNATURE
In the matter between:
THE STATE
and
AUGUSTINE
OMINI
OBONO
ACCUSED
JUDGMENT ON SENTENCE
MOGALE AJ
INTRODUCTION
[1]
The
accused was found guilty of Count 1 being the contravention of
section 4(1) of the Prevention and Combating of Trafficking in
Persons Act
[1]
read with section
51(1) of the Criminal Law Amendment Act,
[2]
which is trafficking in persons.
Count
2 is the contravention of
section 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, read with
section 51(1) of the Criminal Law Amendment Act, which is the rape of
a 12-year-old child.
Count
3 is the contravention of
section 3
of the
Criminal Law (Sexual
Offences and Related
Matters)
Amendment Act read
with section 51(1) of the Criminal Law Amendment
Act
105
of
1997,
which
is
the
rape
by a common purpose of a 12-year-old girl. Count 4 being the
contravention of
section 17(4)
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act 32 of 2007
, which is benefiting
from the sexual exploitation of a child.
Count
5 being the contravention of
section 17(2)
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of
2007
,
which is the exploitation of a child.
Count
6, Kidnapping, and Count 7 being the contravention of the provisions
of section 2 of the Sexual Offences Act
[3]
and further read with the Criminal Procedure Act
[4]
,
which is keeping a Brothel.
[2]
This Court has considered the accused's
personal circumstances, the seriousness of the offences, and the
interests of the community
when determining the sentence.
The Court has considered the sentence's
primary purposes: deterrence, retribution, reformation, and
prevention.
[3]
Triad,
as explained in the case of
S
v Zinn
[5]
consists of the crime, the offender, and the interest of the society.
It
is a well-known phenomenon that rape is the most degrading type of
offence, as it robs its victim of the right to privacy and
human
dignity.
[4]
I will deal with all the counts and the
penalties provided for them as they have been expressed in the
Prevention and Combatting
of Trafficking in Persons Act, which I will
refer to as the 'Trafficking Act," which came into operation on
9 August 2015.
Human trafficking is a horrific crime; despite the
international culture of human rights and dignity, it is increasing
worldwide.
It
violates fundamental human rights and is the cause of immeasurable
trauma to victims, their families, and the communities in
which they
live.
This is our
generation's most significant human rights challenge to the next
generation.
[5]
In
this regard, it is essential to note that human trafficking does not
take place in a vacuum.
Professor
Cornelius Roelofse published 'Human Trafficking as an Organized Crime
in South Africa Pre, during and Post Soccer World
Cup 2010" in
Criminology
[6]
.
He
described this challenge of
human
trafficking by mentioning that: "
It
is a product of an increasingly sex-obsessed world with billions of
dollars being earned from pornographic magazines, television
channels, and prostitution all because of slumping morality. It is a
very lucrative business, where drugs and other narcotic substances
can be used, and a girl used as a sex slave can be sold over and
over. This is the tragedy of this cruel exploitation of the
vulnerable
in our societies.
[6]
This is tragically illustrated in this
matter before me. It has been said that human trafficking has to be
understood as a criminal
process rather than a criminal action.
In other words, the elements of
mobilization are the
act,
the means used, and the exploitation.
Together, they result from a
criminal strategy implemented by the perpetrator
."
[7]
The complainant, in this case, was a
vulnerable 12-year-old child at the beginning of her teenage years.
She was trafficked and raped repeatedly.
She prostituted for the accused's financial
benefit.
Sadly,
the person who took advantage of this young girl's vulnerability at
the initial stage at Derdepoort was a woman who was supposed
to
protect a young child.
Still,
instead, she saw the opportunity to make money from her situation.
[8]
During cross-examination by the
prosecution, the accused gave a long-winded and evasive answer to
questions.
He
showed aggressiveness when refusing to provide information to the
police or to comply with the investigating officer's request
to
assist him in tracing his witnesses.
The
accused was an unimpressive, dishonest witness who did not even show
remorse.
The
accused did not testify in mitigation of sentence nor call witnesses;
his counsel had to make submissions from the bar.
[9]
Section 13 of the Trafficking Act provides
for penalties to be imposed for contravention of the Act.
In contrast, Section 14 of The Trafficking
Act includes aggravating factors to be considered in sentencing.
The aggravating factors that the Court must
take into account at the sentencing stage are a quote from section
14, which provides
as follows:
'
Factors
to be considered in sentencing -
If a person is convicted
of any offence under this Chapter, the court that imposes the
sentence must consider but is not limited
to the following
aggravating factors:
(a)
The significance of the role of the
convicted person in the trafficking process. In this regard, the
accused was not a kingpin.
The complainant was lured by an unknown
colored girl, who delivered the complainant to the accused of being
used as an enslaved
person in the accused business of trafficking and
human trafficking.
(b)
Previous convictions relating to the
offense of trafficking persons or related crimes. That does not apply
to you as you are a first
offender as far as these charges are
concerned.
(c)
Whether the convicted person caused the
victim to become addicted to the use of a dependence-producing
substance has become very
clear in the course of the trial. The
accused forced the victims to become dependent on the drug mixture of
'rock and cocaine."
The complainant had to deal with withdrawal
symptoms after the escape
(d)
The conditions in which the victim was
kept-the State did not provide evidence depicting the premises where
the complainant was
kept. However, from the evidence of the
complainant's uncle regarding the state where the complainant was
when she arrived at his
place, one can conclude that she was coming
or used to staying in an unhealthy and unclean environment.
(e)
Whether the victim was held captive for any
period, the evidence is clear. The complainant was kept for three
months in captivity.
(f)
Whether the victim suffered abuse or the
extent thereof, the complainant suffered - she was abused both
physically, emotionally,
psychologically, and mentally. The accused
drugged, assaulted, and intimidated the complainant by instilling
fear in her so that
she could comply with his instructions. What made
it more serious was that he made her have sex with other men after
drugging her.
He failed to care for her, which was confirmed by the
uncle's evidence that she was dirty and in a mess when she came home.
(g)
The physical and psychological effect the
abuse had on the victim - it is evident that the complainant was
traumatized by the incident
and had various symptoms, including
difficulty in sleeping, fear and anxiety, her academic performance
decline, crying, flashbacks,
distress, avoidance to talk about the
traumatic incident that happened to her, fear of being alone or
travel alone. The Court should
also mention that the complainant got
pregnant, and as a result, she had to go through a termination of
pregnancy process at the
age of 12
(h)
Whether the offense formed part of
organized, while there was no direct evidence of the participation of
other individuals in the
human trafficking, what did come out during
the trial was that one Tchibuza delivered the complainant to the
accused's flat. Like
Marcelo, the accused friend had some girls also
who worked for him as prostitutes, namely Lerato and Refiloe. The
complainant's
uncle brought out other evidence. He testified that
when they were at the accused's flat with the police to arrest the
accused,
they found some young girls who were drugged. But
unfortunately, the State did not make a follow-up about that evidence
nor add
more charges to the accused relating to those girls.
(i)
Whether the victim was a child, the
complainant was a 12-year-old child when she was trafficked and
abused.
(j)
The nature of the relationship between the
victim and the convicted person. There is no relationship between the
accused and the
complainant; they were, in fact, strangers to each
other.
(k)
The state of the victim's mental health.
There are reports submitted by the State proving that the victim was
subjected to both
physical, mental, and psychological and has
suffered severe trauma.
(l)
Whether the victim had any physical
disability, that aspect does not apply
in
this case.
[10]
When dealing with counts 1-3, the
provisions of Section 51 are applicable. Section 51(1) of the
Criminal Law Amendment Act provides:
'Notwithstanding any
other law but subject to subsection (3) and (6), a regional court or
a high court shall sentence a person it
has convicted of an offense,
referred to in part 1 of schedule 2, to imprisonment for life.
Part 1 of Schedule 2 in
rape cases refers to:
1.
Rape when committed in circumstances where
the victim was raped more than once, whether by the accused or by any
co-perpetrator
or accomplice;
2.
Where the victim is a girl under the age of
16.'
[11]
Section 51(3) (a) of the Criminal Law
Amendment Act compels a court to deviate from imposing the prescribed
sentence when substantial
and compelling circumstances exist
justifying the imposition of a lesser sentence. For a court to
come to that conclusion, it must consider
the totality of the evidence before it, together with other relevant
factors traditionally
taken into account concerning sentencing and
the principles or purpose of sentencing. In this regard, it shall
enter those circumstances
on the proceedings' record and impose a
lesser sentence.
[12]
The
Constitutional Court in
S
v Dodo
,
[7]
per Ackerman J, approved the step-by- step procedure for applying the
test to the actual sentencing situation set out in S v Malgas.
[8]
This approval is also evident in several other cases.
[13]
In
S v Malgas
(
supra
)
at 482 d- e Marais JA said:
“…
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the crime,
and the needs of society so that an injustice would
be done by
imposing that sentence, it is entitled to impose a lesser sentence."
At 482 c-d Marais JA
further said
:
'All factors (other than
those set out in D above) traditionally taken into account in
sentencing (whether or not they diminish
moral guilt) thus continue
to play a role; none is excluded at the outset from consideration in
the sentencing process. The ultimate
impact of all the circumstances
relevant to sentencing must be measured against the composite
yardstick (substantial and compelling).
It must be such as
cumulatively justify a departure from the standardized response that
the Legislature has ordained."
[14]
Courts
are required to approach the imposition of a sentence consciously,
stating that the Legislature had ordained life imprisonment
or a
particular prescribed period of imprisonment as the sentence that
should ordinarily and without weighty justification be imposed
for
the listed crimes in the specific circumstances.
In
Rammoko
v Director of Public Prosecutions
,
[9]
,
the Court held that since the complainant was under the age of 16
years, a sentence of life imprisonment had to be imposed on the
appellant unless substantial and compelling circumstances existed
which justified the imposition of a lesser sentence.
[15]
I have considered the submissions for
mitigating the sentence and found nothing in your personal
circumstances or any other substantial
and compelling circumstances
to impose a lesser sentence than that prescribed.
[16]
The accused's personal circumstances are as
follows -
Advocate
Mohlahlo stated that the accused is presently 40 years of age and was
36 years old when the offence was committed.
He has no previous conviction and has
already spent 4years 9 months in prison.
He
is a Nigerian citizen who arrived in South Africa in 2013.
He is unmarried with one kid, a boy aged
five, and he is not staying with the child's mother. He was
self-employed, recruiting clients
for hair at various salons
and earning between R700-R1000 per month.
With the agreement with the mother of his
child, maintenance varied between R700- R1000 when the need arose.
Mitigating
Factors -
Advocate
Mohlahlo submitted that the above factors are compelling and
substantial factors for this Court to deviate from imposing
the
prescribed sentence.
He
requested the Court to exercise the element of mercy and referred the
Court to various case laws like
S
v Sparks, S v Rabie
in
support of his application.
He
also argued that in
S
v Sikipa
,
[10]
the Court found that the 13 years
old
rape victim did not sustain serious injuries according to the medical
report.
As
a result, this Court must also consider that the complainant,
according to the medical report, it was concluded that she did
not
sustain serious injuries.
It
was submitted further that the accused could be rehabilitated.
This
Court should give him that opportunity to be reformed by imposing a
lesser sentence for the accused to interact with society.
On behalf
of the State, Advocate Roos contended that there were no compelling
and circumstantial circumstances warranting deviation
from the
minimum sentence prescribed presented by the accused.
That
personal circumstances advanced is outweighed by aggravating
circumstances.
The
time of incarceration is not a match; aggravating circumstances
outweigh it.
The
victim was a 12-year-old girl, a virgin who was forced to sleep with
five to six men
daily
and
became pregnant.
At
some stage during the proceedings, the complainant couldn't cope and
relapsed; assessments had to be done for her to continue
with
evidence. Advocate Roos requested the Court to impose life
imprisonment for courts 1 to 3 and that the Court should exercise
its
discretion when imposing sentences for counts 4 to 7.
[17]
The
seriousness
of
the
crime
-
Rape
according
to
S
v
Chapman
[11]
has
been
categorized as a very serious offence constituting as it does a
humiliating,
degrading,
and brutal invasion of the privacy, dignity, and the person of the
victim. Reference was also made to the case in
S
v Swartz and Another
,
[12]
where the Court described rape as cancer.
[18]
The interest of the Community -
Gender-based violence in this country is a
pandemic.
A day
hardly goes by without reading in the newspapers or the television
about women and children being raped and killed.
Unfortunately, the complainant in This
matter is a statistic.
The
annual statistics show that gender-based violence is on the rise.
In its endeavor to curb such a rise, the
government is conducting several campaigns to educate the communities
about the seriousness
and impact of gender- based violence on
families and the victims.
[19]
The government has allocated a lot of money
to support organizations such as SAWLA, and different campaigns are
conducted within
the country to promote awareness. Still, it appears
that such efforts are brushed aside. Two months are set aside in a
year to
educate communities about gender-based violence.
In light of this pandemic that has hit our
country, society is putting hope in the judicial system.
In the
matter of
S
v Mhlakaza and Another
,
[13]
Harms JA stated that:
'The objective of
sentencing is not to satisfy public opinion but to serve the public
interest; a sentencing policy that caters
predominantly or
exclusively to public opinion is inherently flawed. The Court's duty
remains to impose fearlessly an appropriate
and fair sentence even if
the sentence does not satisfy the public.'
[20]
The community of Mamelodi must have been
worried or concerned about the complainant's disappearance. After the
complainant's disappearance,
the uncle went to the police station to
open the missing person's file. Dipuo also testified that posters
showed that the complainant
was missing from her school.
[21]
It
is trite that the offender's interest plays a lesser role when the
offence committed is not only serious but prevalent. In
S
v Mhlakaza
,
[14]
it was held that "given the current levels of violence and
serious crimes in the country, it seems proper that in sentencing,
especially such crimes, the emphasis should be on retribution and
deterrence.."
[22]
Section 4, sub-section 1 of the Trafficking
Act creates the offence of "trafficking in persons."
The sentence prescribed for contravention
of section 4 is a maximum fine of R100 million or, life imprisonment,
or both.
You were
found guilty of one count of trafficking in persons.
[23]
Count 2-3 are in respect of a contravention
of section 3 of the Criminal Law Amendment Act (Sexual Offences and
Related Matters),
which is the rape of a 12- year-old child. The
minimum sentence of life imprisonment is prescribed by section 51(1)
of the Criminal
Law Amendment Act 105 of 1977, and you failed to
prove to this court the existence of compelling and substantial
circumstances
for deviation.
[23]
Counts 4 and 5 are in respect of the sexual
exploitation of a child for financial reward.
Section 17(2) of the Criminal Law Sexual
Offences and Related Matters Amendment Act provides that:
"A person ('A') who
unlawfully and intentionally offers the services of a child
complainant ('B') to a third person ('C'),
with or without the
consent of B, for financial or other rewards, favor or compensation
to A, B or another person ('D')- (a) for
purposes of the commission
of a sexual act with B by C; (b) by inviting, persuading or inducing
B to allow C to commit a sexual
act with B; (c) by participating in,
being involved in, promoting, encouraging or facilitating the
commission of a sexual act with
B by C; (d) by making available,
offering or engaging B purposes of the commission of a sexual act
with B by C; or (e) by detaining
B, whether under threat, force,
coercion, deception, abuse of power or authority, for purposes of the
commission of a sexual act
with B by C, is guilty of an offense of
being involved in the sexual exploitation of a child."
[24]
Section 56A provides that if a penalty is
not prescribed for that offence in terms of this Act or any other
Act, the Court may impose
a sentence in terms of section 276 of the
Criminal Procedure Act, which I will refer to as the CPA.
Section 51 (2) (a) of the Criminal Law
Amendment Act as amended, the so-called minimum sentence Act, read
with part III of Schedule
2 thereof, provides that in the case of a
first offender, a sentence of imprisonment for a period of not less
than 10 years should
be imposed.
[25]
Again, I find no substantial and compelling
circumstances to deviate from the prescribed minimum sentence on
count 4.
[26]
Count 5 is in respect of living on earnings
of sexual exploitation of a child and is an offence in terms of
section 17
(5) of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act.
The
prescribed sentence is a term of imprisonment of 5 years.
[27]
Count 6 relates to the kidnapping of the
complainant. The complainant was held against her will and kept for
at least three months.
The
sentence prescribed is
a
term of imprisonment of 7 years.
[28]
Count 7 is the charge of keeping a brothel.
The term of imprisonment is imprisonment
for 3 years.
EVALUATION
[29]
I find that the accused is not a candidate
to be rehabilitated.
In
S v Chapman supra
at
para 5, it was held that women in this country have a legitimate
claim to
walk
peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come to work, and to enjoy the peace
and
tranquillity of their homes without
fear,
the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives.
In
these instances, the complainant went to Derdepoort to enjoy herself
like other children who went there for the same purpose.
There is no direct evidence linking the
accused to the recruitment of the complainant, but she ended up at
the accused place and
stayed there for three months.
She was kept captive there as a slave and
made to sleep with five to six older men daily, sometimes, the
accused included.
She
was not allowed to walk alone wherever she wanted to go. The accused
guarded her constantly, ensuring she did not escape.
The rapes were conducted without using a
condom, exposing the complainant to the risk of contracting AIDS.
She ended up being pregnant at the age of
12 by the accused, a 36-year-old man, and ended up terminating the
pregnancy at that early
age.
The
accused was not even remorseful; instead, he told the Court that the
12-year-old child was his girlfriend and that they had
consensual
sex.
The accused
did not show any sign of remorse. Instead, he displayed arrogance.
Even after medical evidence proved that the
complainant's physical development shows a 15 to 16-year-old child,
the accused maintained
that the complainant looked like she was 19
years old to him.
The
accused is illegal in the country, as the Department of Home Affairs
denied his Asylum application.
[30]
The only thing that counts in favour of the
accused is that he is a first
offender.
This court has considered his being in custody for the past four
years and nine months a mitigating factor.
[31]
After careful consideration of the
evidence, the accused's personal circumstances, and the mitigation
presented, I believe that
the accused failed to show this Court any
"substantial and compelling circumstances" justifying the
imposition of a lesser
sentence.
[32]
I consider the following sentence to be
appropriate –
32.1
Count 1: contravention of
section 4(1)
of
the Prevention and Combating of Trafficking in Persons Act 7 of 2013
read with
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
, trafficking in person, you are sentenced to Life imprisonment;
32.2
Count 2: Contravention of
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
read with
section 51(1)
of the
Criminal Law Amendment Act 105
of 1997
, rape of a 12 years old child, you are sentenced to Life
imprisonment;
32.3
Count 3: Contravention of
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
read with
section 51(1)
of the
Criminal Law Amendment Act 105
of 1997
, rape by a common purpose of a 12-year-old girl, you are
sentenced to Life imprisonment;
32.4
Count 4: contravention of
section 17(4)
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
, benefiting from the sexual exploitation of a child - 10
years' imprisonment;
32.5
Count 5: contravention of
section 17(4)
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
, which is an exploitation of a child - you are sentenced
to 5 years imprisonment;
32.6
Count 6: Kidnapping - you are sentenced to
3 years imprisonment;
32.7
Count 7: contravention of the provisions of
section 2 of the Sexual Offences Act 23 of 1957, keeping a Brothel,
you are sentenced
to 3 years imprisonment;
32.8
The sentences in counts 2, 3, 4, 5, 6, and
7 run concurrently with those
in count 1.
32.9
In terms of section 50 of the Sexual
Offences and Related Matters Act 32 of 2007, the accused particulars
are ordered to be included
in the Register of Sexual Offenders.
The effect of this order is that you cannot
be employed in an environment that involves children in the future.
K
MOGALE ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF
THE HIGH COURT, PRETORIA
Delivered: This judgment
was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation
to the Parties/their legal
representatives by email and by uploading it to the electronic file
of this matter on CaseLines. The
date for hand-down is deemed to be
29 April 2021.
APPEARANCES
For
the State:
ADV
A ROOS AND E VAN DEVENTER
Instructed
by:
THE
DIRECTOR OF PUBLIC
PROSECUTIONS,
PRETORIA
For
the Defence:
ADV
M MOHLAHLO
Instructed
by:
THE
LEGAL AID BOARD,
PRETORIA
Date
of judgment:
29
April 2021
[1]
7
of 2013.
[2]
105
of 1997.
[3]
23
of 1957.
[4]
51
of 1977.
[5]
1969
(2) SA 537 (A).
[6]
24
(3) 2011 Southern African Journal of Criminology.
[7]
2001(1)
SACR 594 (CC) at 602-603.
[8]
2001
(1) SACR 469 (SCA).
[9]
2003
(1) SACR 200 (SCA).
[10]
2006(2)
SACR 18 (SCA).
[11]
1997(2)
SACR 3 (SCA).
[12]
1992(2)
SACR 380 CPD.
[13]
1997
(1) SACR 505
(SCA) at 518E.
[14]
Supra
at
519 d-e.