The
accused was sentenced to 8 years imprisonment of which 2 years were suspended
on the usual conditions of future good behaviour (both counts were treated as
one)….,.
The
learned magistrate did not make a finding whether the offence was committed in
aggravating or mitigating circumstances. This is a mis-direction on his part.
Section
93(3)(a) of the Criminal ...
The
accused was sentenced to 8 years imprisonment of which 2 years were suspended
on the usual conditions of future good behaviour (both counts were treated as
one)….,.
The
learned magistrate did not make a finding whether the offence was committed in
aggravating or mitigating circumstances. This is a mis-direction on his part.
Section
93(3)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] defines
aggravating circumstances if -
“(i)
The kidnapping or unlawful detention was accompanied or motivated by the demand
of a ransom for the safe return of the adult or child; or
(ii)
The kidnapping or unlawful detention was accompanied by violence or the threat
of violence;”
As
alluded to…, there was no violence, or threat of violence, as the girls went to
the accused voluntarily in a bid to seek fortune in South Africa. There was no
ransom sought by the accused. In the circumstances, it can safely be found that
the kidnapping or unlawful detention was committed in mitigating circumstances.
This finding informs the sentence applicable. The penalty clause under section
93(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides
-
“…, and
liable -
A.
To imprisonment for life or any shorter period, except in a case referred to in
subparagraph B; or
B.
Where kidnapping or unlawful detention was committed in mitigating circumstances
referred to in paragraph (b) of subsection (3) to a fine not exceeding level
seven or imprisonment for a period not exceeding two years or both.”
The
wording of this penalty clause is such that notwithstanding my finding that
there are mitigating circumstances, the penalty under subparagraph A applies.
This is so because the accused is neither a parent nor close relative of the
two girls. Because of the above-mentioned misdirection I am at large as far as
sentence is concerned. The sentence of 8 years is manifestly excessive and I
set it aside. The accused is a first
offender. He is of poor health. He has a
wife and one child and five dependants. He was trying to assist these juveniles
to cross to South Africa. However, this is a serious criminal conduct. Many
young people from this region are deserting their parents or lawful guardians
to go and seek fortune in South Africa. In most cases, the children end up in
abusive circumstances. These children had no passports. The accused abandoned
these children in South Africa. The accused hired someone to smuggle them into
South Africa. Cases of human trafficking of children are prevalent and a
deterrent sentence is called for. Accordingly, the accused is sentenced as
follows:
“Both
counts treated as one -
4
years imprisonment, of which 2 years is suspended for 4 years on condition that
the accused in that period does not commit an offence involving kidnapping or
unlawful detention and for which he is convicted and sentenced to imprisonment
without the option of a fine.”
