IN THE HIGH COURT OF ESWATINI
JUDGMENT ON SENTENCE
HELD AT MBABANE CASE NO. 412/10
In the matter between:
MLUNGISI EDWARD DLAMINI
Neutral Citation: Rex vs Mlungisi Edward Dlamini  [412/10] SZSC 04 (5 February, 2021)
Coram: M. S. LANGWENYA J
Heard: 26 August 2019; 3 June 2020; 8 July 2020; 27 July 2020; 11 November 2020; 5 February 2021.
Delivered: 4 February 2021
Summary: Criminal law-Criminal Procedure-Consideration of the ‘triad’- effect of sexual violence on children-accused sentenced to sixteen (16) years imprisonment without the option of a fine.
JUDGMENT ON SENTENCE
 The accused was found guilty of rape of a child who was seven years at the time of the commission of the offence. At the time the judgment on sentence was delivered, it is ten years and five months since the offence is alleged to have been committed. It is unclear from the Crown why there was an inordinate delay in prosecuting the matter. During the trial however, the matter was stalled by defence Counsel who made applications for postponement and often absented himself without giving acceptable reasons to Court. At the sentencing stage, counsel for the accused abandoned him and filed no notice of withdrawal from the matter. Needless to say, such conduct is deprecated.
 In mitigation of sentence, the Court heard that the accused is a bread winner at his home. That the matter has taken its toll on the accused for ten years and counting and during that period, the accused has not had peace of mind. The accused submitted that his legal representatives have taken him for a ride during the trial resulting in the matter taking longer than expected. The accused is forty-nine years of age and has three minor children who depend on him for support and maintenance. He is currently employed at Lilawu Construction. The accused was arrested on 2 November 2010 and spent a month in pre-trial incarceration before he was released on bail. The accused is a Form 5 graduate. The accused is a first offender.
 I have taken into account the personal circumstances of the accused and have weighed these against the interests of society and the seriousness of the crime.
 The reality is that there is a high prevalence of sexual violence against children in eSwatini. According to a study conducted by UNICEF in 2007, it is stated that approximately 1 in 3 females experienced some form of sexual violence as a child. Put differently, sexual assault especially on the most vulnerable members of our society-young children-has become endemic in our society. This Court has a duty to send a clear message to society that it views sexual offences in serious light and that it is willing and prepared to impose the kind of sentence which whilst serving as a deterrent both individual and general, will also serve to protect society against people who pose a threat by their predatory antics-to the well-being of society.
 There is increasing evidence that the disproportionately high level of violence against women and children has immesurable and far reaching effects on the health of our nation and its economy. The courts must, through the handing down of appropriate sentences help curb the scourge of violence against children.
 In my view, there can be no greater crime than to deprive a child of her innocence. The crime complained of herein was not perpetrated by a stranger, but by a relative of the child who is the complainant herein. It is a most egregious breach of trust.
 The complainant was aged seven years at the time of the commission of the offence while the accused was thirty nine years old. On examination by a medical practitioner, the complainant was found to have a sexually transmitted infection. The aggravating factors alleged and proved by the Crown are weighty. The accused person’s act of raping a child who is his relation is not only morally depraved, it is also deplorable. The accused betrayed society’s trust. Society expects of adults to look out for the vulnerable and not to exploit them. Accused’s betrayal of that trust further aggravates the offence he committed.
 Sentence must always be tailored to fit the individual, the crime and the circumstances of the case. Authorities abound which counsel that sentence must be passed dispassionately, objectively and upon a careful consideration of all relevant factors. Equanimity is the stay of any judicial officer charged with the responsibility of sentencing if a just and fair sentence is to be arrived at. The court has to strive to be fair and just to both the victim and the accused person and have regard to the nature of the crime as well as the interests of society.
 It is however not lost to me that the accused is a first offender and that, through no fault of the accused, the matter has dragged for a period of ten years before he was brought to trial.
 In this case, I am of the view that the interest of society demands that the accused serves a substantial term of imprisonment. Those people in our community who are minded to sexually abuse children in the manner the accused has done must know that the courts will not look kindly upon such abominable behaviour.
 Having weighed the mitigating factors against aggravating factors, I find that a sentence to a term of sixteen (16) years imprisonment is appropriate. This sentence will take into account the period of two months from 11 November 2020 when the accused was convicted as well as the period of one month that he spent in pre-trial incarceration. All in all, the sentence will take into account the period of three months which the accused has spent in custody already.
Right to appeal
 The accused is informed of his right to appeal. Should the accused not be satisfied with the conviction or sentence or both conviction and sentence, he has a right to apply for leave to appeal to the Supreme Court within fourteen (14) days of the handing down of the judgment on sentence. If he fails to apply for leave to appeal within fourteen (14) days, he has to apply for condonation for the late filing of an application of leave to appeal accompanied by an affidavit in which the accused should give a reasonable and satisfactory explanation of the delay. He must also state that he has reasonable prospects of success to prosecute his appeal should he be granted leave to appeal and the reasons on which he is basing his contention.
M. S. LANGWENYA
JUDGE OF THE HIGH COURT
For the Crown: Ms. F. Gamedze
For the Accused: In Person
 See: Study on Violence Against Children in Swaziland:Findings from a National Survey on Violence against Children in Swaziland (2007). The Courts are inundated with cases of rape where the survivors are children.
 BMJ Global Health C Hsiao et al ‘Violence against Children in South Africa: the Cost of Inaction to the Society and the Economy.’