“Sadistic” child abuser seeks reduction in ten-year sentence

Thursday 24 November 2016

A man imprisoned after committing two indecent assaults on a teenager – described as “sadistic in nature” by Bailiff William Bailhache - is appealing against his ten-year sentence.

Venezuelan-born Jose Avelino Cabral Da Costa was sentenced in August after pleading guilty to two counts of indecent assault on a child aged seven and nine years between 2005 and 2008.

Da Costa was handed a ten-year jail term and an order to sign the Sexual Offenders’ Register for 15 years.

On Monday and Tuesday, Da Costa appeared in the Court of Appeal – attended by three judges; Bailiff William Bailhache, Clare Montgomery QC and David Anderson QC – with an interpreter.

Attorney General Robert MacRae indicated that the offences would have been classified as rape rather than indecent assault had they taken place in England, and were serious enough to be sentenced with the sentencing guidelines for rape in mind. 

Advocate Michael Haines, defending, maintained that bringing together English sentencing guidelines and Jersey Common Law on indecent assault, "...is a marriage or union that is wrong for several reasons," and questioned that if such a precedent is set, "...we will be left with a twin track," with confusion over when to apply Jersey or UK legislation. 

Advocate Haines also raised concern that if Da Costa's sentence is extended and new Jersey legislation is later passed on indecent assault, the defendant, "...might receive a higher sentence than he would under new legislation."

Making extensive reference to the English case R v Millberry, Advocate Haines noted the absence of ‘aggravating features’, such as, “…the use of violence over and above the force necessary to commit the rape.”

Clare Montgomery challenged this point, stating, “…that does not mean that it’s a lesser offence.”

The Court was invited to consider Da Costa's "good character", with attention drawn to his work ethic, relationship with his children, and the five-page statement from the defendant's wife, which Advocate Haines described as, "...quite important in cases of this nature."

"If the policy is going to be that we won't give any credit for these matters, I would suggest that's not the way forward."

A conclusion is expected this afternoon.