AN Appeal Court panel last Friday refused to disturb the conviction of an electrician who coerced and raped a seven-year-old child while buying her silence by promising her gifts and telling the child that her mother would die if she spoke about the abuse.

Instead, the panel, in turning down his appeal against his sentence and conviction, said it would only grant a one-year reduction in his original 14-year and nine-months sentence because of a five-year and three-month delay between the application for leave to appeal and the hearing of that appeal.

According to the facts of the case, the incidents took place on an unknown date between “the 31st day of March 2013 and the 12th day of May 2013” when the child was in the care of a relative of the man while her mother went to work.

According to the child, the man, who lived at the same residence, on more than one occasion penetrated her vaginally and anally. She said following the last incident, which took place in a shed on the property, in being questioned by her caregiver she revealed his actions. A report was made to the police and he was arrested and charged.

Following a jury trial in the Home Circuit Court the electrician was convicted for the offence of sexual intercourse with a person under the age of 16 years but was found not guilty in relation to a count of buggery. On October 12, 2018 he was sentenced to 14 years and nine months’ imprisonment at hard labour. The man, in an unsworn statement, maintained that he was away at work at the time he was said to have molested the child, and denied “interfering” with her.

The child, during that trial, said she initially told no one because the man, who she called “uncle”, told her that she is not supposed to tell her mother because she has “pressure” and “she will dead”. She also said that when sexual intercourse took place and she would tell him to stop, he would place his finger over her lips and say, ‘Shhhh’…

After his application to appeal in 2020 failed, the man, in a renewed appeal in June 2023 against both sentence and conviction, argued among other things that the directions of the trial judge to the jury regarding the inconsistencies, discrepancies, and omissions in the evidence of the child had been inadequate and that he was entitled to redress for the breach of his constitutional rights, given the delay in the production of transcript of the trial, which resulted in a setback in hearing of the appeal.

Furthermore, his attorneys contended that there was insufficient evidence to back the child’s claim that she was penetrated or that he had placed his finger in her private parts.

They further argued that the child, who was seven years old at the time of the offence, had been 13 years old when she gave evidence at the trial and that, based on that evidence, “had no accurate recollection of the dates of any sexual encounters with the applicant”.

The appeal panel, in striking the arguments of the defence counsel relating to the treatment of inconsistencies and discrepancies by the judge, said, “We are of the view that the learned trial judge identified and dealt sufficiently with the issues concerning the inconsistencies, discrepancies and omissions, especially having regard to the inability of the complainant to recall specific dates. The jury was adequately directed on how to treat with these and the effects on the complainant’s credibility. There is no merit in this ground of appeal.”

As to arguments that the judge erred in suggesting to jurors that there were numerous possibilities for the inconsistent evidence given by the child and that this denied the electrician a fair trial, the Court of Appeal said it was “not of the view that the learned trial judge erred in cautioning the jury about unwarranted assumptions or that this direction invited speculation and led to an unfair trial”.

In ruling that “there is no basis to disturb the conviction” the Appeal Court said, given that the man mounted no ground of appeal against his sentence, there was no basis to consider whether he should be granted an appeal in that respect.

As it related to the breach of his constitutional right to a fair hearing within a reasonable time, the Appeal Court said, “We found an inordinate delay between the applicant’s conviction and the hearing of the appeal [approximately five years and three months], none of which could be attributed to the applicant.

“This delay justifies an effective remedy, which we have determined should be a reduction in the sentence imposed. To give the remedy for the breach of his constitutional right, the sentence imposed will be reduced by one year.”

Said the judges, “We considered several grounds of appeal challenging the fairness of the applicant’s trial, particularly relating to the summation of the learned trial judge. We found no merit in any of those grounds of appeal and, therefore, affirm the applicant’s conviction. Leave to appeal sentence was not pursued and the sentence imposed cannot be said to be manifestly excessive.”

As such it ordered: “The application for leave to appeal against conviction and sentence is refused. It is hereby declared that the right of the applicant under Section 16(8) of the Constitution of Jamaica, to have his conviction and sentence reviewed by a superior court within a reasonable time, has been breached by the delay between his conviction and the hearing of his appeal. By way of remedy for the breach of the applicant’s constitutional rights under Section 16(8) of the constitution, the sentence of 14 years and nine months’ imprisonment is set aside; substituted therefore is the sentence of 13 years and nine months’ imprisonment.”

The sentence is being treated has having started on October 12, 2018, the date imposed by the original trial judge.