The Court of Appeal has upheld the conviction and sentence of a man imprisoned in 2018 for four years and nine months for molesting a 7-year-old girl in 2016.
Devon Alanzo Stewart, who was 57 at the time of the conviction for gross indecency in September 2017, also passed a sexually transmitted infection to the girl.
At the hearing, held Friday, defence counsel Keith Myers offered what he called “three prominent grounds” for the appeal. The attorney did not state all the grounds in open court, but instead handed written submissions to the justices.
He did, however, point out one ground, which he expressed as “perhaps the strongest of the three”.
Myers told the court that when the judge arrived at his sentencing decision, he “erred, by placing too much weight on the evidence of the prosecution’s medical expert”.
The prosecution said that the victim and Stewart both suffered from the same sexually transmitted infection, one that is rarely found in prepubescent children who have not had any sexual exposure.
“The defence’s medical expert also gave evidence which clashed with that of the prosecution’s expert,” said Myers. “Mr. Stewart’s position has been that the child must have contracted the infection by using his towel that was hanging in his bathroom.”
“The probability of this was attested to by the defence council’s medical expert,” he added.
The appeals court disagreed with Myers and, after declining to hear from Crown prosecutor Greg Walcolm, gave their reasons for rejecting the appeal.
“The sentencing judge, Justice Timothy Owen, gave a detailed and through explanation as to how he arrived at his decision,” said Justice John Goldring, the president of the Court of Appeal.
“As set out in his judgment, Justice Owen said, ‘The fact that the defendant, who was suffering from the same infection, also happened to be the same person that the complainant identified as assaulting her is no coincidence.’”
Goldring added, “Justice Owen also set out that he found the complainant to be a credible witness who, despite her age understood the importance of speaking truth. The medical expert’s evidence corroborated that of the complainant.”
In dismissing Stewart’s appeal, the court said it was “wholly without merit”.
Myers then turned his attention to the second appeal, against the length of the sentence.
Conceding that it was “the weaker of the two appeals,” Myers added, “However, we say the sentence was unduly heavy, and invite the court to consider imposing a shorter, more appropriate, sentence.”
The justices dismissed that appeal as well, telling the defence attorney, “You were right to concede.”
Stewart listened to the proceedings via video-link.