A father who was sentenced to 15 years in prison for raping his 7-year-old stepdaughter has had his appeal dismissed by the Court of Appeal.
He was sentenced to 15 years’ imprisonment on seven charges of aggravated sexual assault on a child under 15 years, contrary to section 97A (2)(d) of the Penal Code Act [CAP 135], and six alternative charges of Unlawful Sexual Intercourse, contrary to section 97(1) of the Penal Code Act.
He claimed the evidence before the primary judge was such that does not warrant his conviction and sentencing.
The appeal was filed after the appellant said that the sentence was excessive but no submission has been filed in relation to the sentence appeal. However the Court of Appeal confirmed receiving the appeal over the conviction.
The Appeal judges said the appeal against the conviction was on the grounds that the evidence before the judge was such that no reasonable finder of fact could have accepted it as guilt beyond reasonable doubt.
They said the appellant also claimed that the primary judge did not preside independently by saying that he considered the prosecution evidence and suggested to the appellant to enter a guilty plea.
On behalf of the Appeal Court, Justice John Von Doussa said they understood that what the primary judge did was to request counsel to ensure that the appellant was aware of the sentencing benefits that flow from the guilty plea.
He said there was no way it could be seen as a guilty plea bargaining but it is sensible for a judge in the circumstances pertaining in this case to ensure that an accused person was fully aware of such matters to enable him to make a fully informed decision.
Justice Von Doussa said it does not demonstrate any bias on the part of the judge.
In the second point, Justice Von Doussa said that at no stage the counsel of the appellant submitted that the judge was biased, to enable him to respond to it, nor did she asked him to recuse himself.
He said the proper time to ask a judge to disqualify himself is at the commencement of a trial but not after a failed defence.
Evidences showed that the issue of bias was raised after the guilty plea verdict.
But going through the evidences provided during the trial, the Appeal Court judges found that the evidences adduced during the trial at the lower court to be true and not fabrication as alleged by the defence.
They also dismissed the defence submissions that the appellant found a job and the victim made up the story to prevent him from working.
The Court of Appeal ruled out the appeal after careful consideration and stated that the primary judge was right in his sentencing equation.
SOURCE: VANUATU DAILY POST