By Staff Reporter
An Epworth man, who was convicted of raping his 9-year old step-daughter in 2017 while well aware he was HIV positive had his appeal against conviction and sentence thrown out by the High Court.
The man whose identity is concealed to protect the victim was convicted of rape by the magistrates court in 2017 and is serving 18 years effective for the offence.
He was aged 30 at the time and was initially jailed for 20 years before two years were set aside on conditions of good behaviour.
The convict was facing two rape counts which were treated as one for sentencing purposes.
Aggrieved by the judgement, the convict approached the High Court complaining that he was wrongly convicted.
Among other things, he accused his wife of having broken her daughter’s hymen by inserting her finger in the victim’s privates after noticing that she had a smelly vaginal discharge.
Sitting at the High Court, judges of appeal Justices Happias Zhou and Benjamin Chikowero dismissed his appeal, ruling that he did not only rape his stepdaughter but wanted to infect her with HIV.
Luckily, the minor was not infected and the judges said this does not mean that Jack should be applauded.
“The complainant was not put at risk of contracting HIV once, but twice. That she was not infected could not be credited to the appellant. He did not care whether the complainant was infected or not.
“The appellant raped his stepdaughter. He stood in the position of a parent over the complainant.
They also said the convict was expected to protect his step-daughter, instead, he became the predator betraying the trust.
“He sexually preyed on the complainant. He did not do that once. He did so twice. This depicts his unrepentant attitude. He knew that he was HIV positive. He exposed the complainant to the risk of contracting that virus, which leads to the dreaded disease, AIDS,” said Zhou.
The complainant’s evidence was fortified by how the offence itself came out into the open.
Court said had it not been for the fact that the complainant’s mother was puzzled by the whitish and smelly discharge from the complainant’s vagina, the offence would not have been revealed in the circumstances that it was.
“That the complainant’s mother poked her finger into the complainant’s vagina (which was a layperson’s physical examination of the female genitalia) was of no moment.
“That insertion of the finger was done well after the offences had been committed. We are satisfied that the trial court did not err in finding as a fact that the healed hymenal tear reflected in the medical report was a result of the appellant sexually ravishing the complainant.
“We are not impressed by the appellant’s argument that the complainant’s mother tore her daughter’s hymen to create the occasion for the raising of false rape allegations against him,” said Justice Zhou.
During trial, the complainant gave detailed accounts of how the offences were committed.
She capped her testimony by stating that the appellant not only threatened to kill her mother and herself, if she revealed the offence, but also gave her money to buy her silence.
“In view of the detailed testimony of the complainant, it would have led to a gross miscarriage of justice had the trial court not found that the complainant was a credible witness.
The High Court noted that there were good relations between the appellant and the complainant.
Judges said the latter was not shown to have harboured any reason to allow herself to be used to raise untrue rape allegations against her step-father, under whose roof she was sheltered.
“Considering the complainant’s young age, her relationship to the perpetrator, the threats issued by the appellant and the use of money to muzzle the complainant, we are unable to accept the appellant’s argument that the complaint was of no evidentiary value because it was not immediately made.”
They ruled.
“The appeal against the conviction is unmeritorious. So too is the attack on the sentence. The aggravating factors far outweighed the mitigation.
The appellant told us that the sentence is manifestly excessive and harsh as to induce a sense of shock. In view of the factors of aggravation that we have alluded to, all of which were considered by the trial court, the sentence imposed is not so severe that no reasonable court would have imposed it. If anything, it seems to us that the trial court might have erred on the side of leniency.
The appeal be and is dismissed in its entirety.
