Child sex offender’s appeal sees mixed result

A Tortola man who was found guilty of having sex with his pre-teen daughter has had his sentence reduced from 11 to eight years in prison, but he failed in his efforts to have his conviction overturned.

The child sex offender — whose name is being withheld in order to protect the identity of the victim — won an appeal in the Eastern Caribbean Supreme Court of Appeal last week to have two incest and three indecent assault sentences run at the same time.

A jury in High Court found the Sea Cows Bay resident guilty of the crimes in November 2011.

At the time, High Court Justice Indra Hariprashad-Charles ordered that the incest sentences and the indecent assault sentences should run consecutively.

However, on Tuesday, July 11, the appellant’s attorney, Patrick Thompson, successfully argued that the judge made an error in her sentencing.

Three further grounds of appeal — which sought to have the convictions overturned — were dismissed.

Justices of Appeal Paul Webster, Davidson Baptiste and Louise Blenman presided over the hearing.

Consecutive vs. concurrent

In his appeal against the sentence, Mr. Thompson argued that the trial judge made a mistake in sentencing the appellant to consecutive terms of imprisonment.

The sentences for incest and indecent assault arose from the same admissible facts, he told the court.

In reading the Court of Appeal’s judgment, Mr. Webster agreed that Ms. Charles acted “in error.”

“We will allow this ground of appeal and order that the concurrent sentences of eight years imposed on the appellant for each of the two counts of incest shall run concurrently with the concurrent sentences of three years imposed on the appellant for the three counts of indecent assault,” Mr. Webster stated, adding, “The appellant will therefore serve, if he has not already done so, a total of eight years in prison.”

Incest vs. rape

In the appellant’s trial, the judge offered the jury the option of either convicting him with two rape charges or two incest charges. He was subsequently found guilty of incest and not rape.

Mr. Thompson told the court that the facts relied upon in support of the counts for rape were the same as the facts for the counts for incest.

He added that no reasonable jury could have returned these verdicts, and as such it would be unsafe to allow the guilty verdict on incest to stand.

In response to those claims, Mr. Webster stated, “We are of the view that the judge misdirected the jury when she told them that incest was an alternative offence to rape.”

He added that it was up to the jury to be sure that the appellant was both the father of the complainant and that he had sex with her. These determinations, he said, would be sufficient to justify finding him guilty in respect to the charges of incest.

Accordingly, the judges dismissed this ground of appeal.

Good character

Thirdly, Mr. Thompson argued that the trial judge failed to direct the jury on how to interpret a good-character submission.

Crown Counsel O’Neil Simpson agreed that the judge did not give full direction and as a result misdirected the jury, Mr. Webster explained.

However, the judge added, “He also submitted that this was not fatal and even if she had given the full good character direction to the jury, that they would eventually have reached the same conclusion and convicted the appellant of the charges of incest and indecent assault.”

The Court of Appeal accepted Mr. Simpson’s reasoning and dismissed the ground of appeal.

Young age

The fourth ground of appeal centred around Mr. Thompson’s contention that the trial judge failed to direct the jurors on the reliability of evidence.

The attorney explained that the complainant was a child whose credibility may have been affected by her age.

He added that the judge failed to warn the jurors that the evidence may be unreliable; of the reasons why it may be unreliable; and of the need for caution in deciding whether to accept that evidence.

After some interrogation by the bench, however, Mr. Thompson conceded that this ground of appeal “lacked sufficient merit to justify persisting with it,” Mr. Webster said.

“Counsel for the respondent agreed with him, and so do we,” the judge added. “This ground is therefore also dismissed.”