R. v. Biliati

The 33-year-old defendant pled guilty and was sentenced to 10 years’ imprisonment by a First Grade Magistrate for defilement after luring a nine-year old girl to his house and raping her. Subsequent medical examinations revealed that the defendant was HIV-positive, as well as injuries and other evidence of the crime on the victim, who did not contract HIV. The State appealed the sentence, arguing that it was insufficient due to the nature of the crime. The High Court agreed, citing 2013 precedent recommending that 14 years’ imprisonment should be the starting point for defilement sentences. However, the High Court noted the increase of defilement cases in Malawi – 2,155 convictions for defilement by July 2020 – indicated that 14 years was an insufficient deterrent. Instead, the High Court recommended that 20 years be the minimum sentence for defilement, noting the recent trend of High Court judges increasing such sentences similarly. In reviewing the defendant’s sentence, the Court considered numerous factors, including that: i) defilement cases against young girls had been on the rise in recent years in Malawi, which justified harsher sentences to protect young girls; ii) statutory rape of a girl under 16 is a serious offence; and iii) the defendant was HIV-positive and could have infected the victim. Ultimately, the High Court ordered that the defendant’s 10-year sentence be increased to 40 years’ imprisonment.