Finding no merit in his appeal, the Guyana Court of Appeal yesterday affirmed the conviction and 65-year sentence imposed on Esan Germain, who a jury in 2017 had found guilty of sexually abusing a 4-year-old girl on three occasions—with the final assault occurring when she was seven years old.
Germain is also currently serving a 30-year sentence, following his conviction earlier this year for raping a 15-year-old girl three times.
A jury in a majority verdict of 11 to 1 had back in February found the former researcher, guilty as charged of sexually penetrating the teen between January 1st and July 24th of 2014.
In his appeal regarding his rape of the toddler, Germain sought to advance that the Judge who conducted his trial was biased towards him after citing his then attorney for contempt regarding what was described as the lawyer’s tardiness during the case.
Refuting these claims, however, the State had argued that counsel had been upbraided in the absence of the jury, and therefore the Appellant could not advance that the verdicts returned were as a result of any bias.
Acting Chancellor Yonette Cummings-Edwards, who read the decision, said the Court found that since the upbraiding was done in the absence of the jury, any perceived bias could not by extension be attributed to the jury.
The Chancellor also said that the upbraiding of any attorney by a Judge could not by itself be said as amounting to bias.
Against this background, she said that it is the duty of any Court to ensure the ends of justice are met and that if on either side—whether prosecution or defence—there is need for upbraiding to ensure proper representation by counsel in the conduct of a matter, a Court will so do.
The appellate court resultantly went on to rule that the ground of appeal regarding bias, had no merit.
The second ground on which Germain challenged his conviction and sentence was to argue that by not holding a separate sentencing hearing, contributed to the trial judge imposing a harsh sentence on him.
Dismissing this ground of appeal, however, Chancellor Cummings-Edwards said in the Court’s ruling that while in principle case law encourages such hearings for the imposition of custodial sentences, it is not mandated.
She added that in any event, the mitigating and aggravating circumstances of any case which are to form the basis for such separate hearings as a prerequisite guide to sentencing, were factors which, the record show, had been identified for consideration by the trial Judge.
And so, this ground of appeal was also dismissed as having no merit.
The final ground on which Germain appealed, was that his sentence was too severe.
The Court would go on to rule, however, that given the circumstances of the case—the position of trust and protection Germain breached, and the fact that the victim was young—which in accordance to precedent allows for higher sentences; what was imposed against him was warranted.
The appeal was heard by the Chancellor together with Justices of Appeal Rishi Persaud and Dawn Gregory.
Germain was represented before the Court of Appeal by defence attorney Tiffany Durant; while the State was represented by Assistant Director of Public Prosecutions, Teshana James-Lake.
Background
Following his first trial back in 2017, a jury had unanimously found Germain guilty of sexually abusing the toddler.
He was sentenced to a total of 65 years in jail after being convicted on all three counts of engaging in sexual activity with the child—when she was ages four, six and seven.
At the time, Justice Simone Morris-Ramlall who presided over that trial, sentenced Germain to 15 and 20 years imprisonment, on the first and second counts respectively; and 30 years on the third count.
All the sentences are running concurrently.
The state’s case had been that sometime during 2010, 2012 and 2013, Germain performed oral sex on the child, and in turn caused her to do same to him. Additionally, it said he rubbed his penis against the girl’s genitals.
In handing down the sentence, Justice Morris-Ramlall had noted then that not only was the child repeatedly violated, but that the assaults began at the tender age of four.
Among other things, the Judge had told Germain that his conduct did not entitle him to mercy, while noting that he needed to be sentenced to a term appropriate for sending a clear message to potential offenders; while at the same time providing him an opportunity to reflect on what he had done and the consequences of his actions, with the hope that he could be rehabilitated in the process.
Noting that the child had been scarred for life, the prosecution had requested life imprisonment.
At his sentencing-hearing earlier this year for the rape of the teen, Justice Priya Sewnarine-Beharry who presided over that trial referenced the previous convictions, stating that it was clearly indicative of Germain’s “unrepentant and recalcitrant” attitude towards reoffending which she said presents a threat to the public.
As he had done with the 4-year-old, Germain not only sexually penetrated the teen, but also caused her to perform oral sex on him, and among other sexual acts, fondled her in the process.
For those offences he was sentenced to 20, 25 and 30 years respectively on the first, second and third counts; ordering that the sentences be served concurrently.
