Appeal against "manifestly excessive" sexual assault sentence dismissed

Wednesday 14 April 2021

The Court of Appeal has thrown out an application that claimed the starting points for the sentencing of a man described by the Royal Court as a "violent sexual predator" were too high.

In December, the Royal Court sent Jose Andrade, 29, to prison for six-and-a-half years for locking a 20-year-old woman in a bathroom and sexually assaulting her; indecently assaulting a teenage girl in a bedroom; and indecent assault against a man under the age of 21. All of the offences were committed at a house party last June.

A 10-year Sexual Notification Order was imposed, as was an extended sentence order and a recommendation for Andrade's deportation upon his release from Les Nicolles Prison. 

Defence Advocate Liam Roffey brought the sentence to the Court of Appeal, arguing that the starting point (nine-and-a-half years) for the offences before mitigation was "manifestly excessive".

He argued that the starting points "treated an undoubtedly serious matter too seriously". 

"Bearing in mind the absence of some of the 20 aggravating factors that can be associated with offences of this type as per the UK guidelines, I do submit that the Royal Court was wrong to determine Count A [the penetration of a young woman against her will] was at the upper end of offences of this type [indecent assault].

"To conclude otherwise would effectively leave the Courts in this island with little room to go when more serious offences are before it. You will reach a threshold beyond which sentences will become condensed."

Pictured: Andrade's three victims were at a house party on the evening of 26 June when the 29-year-old arrived and sexually assaulted them in three separate incidents. 

Advocate Roffey said Andrade's sentencing "has to be viewed in the context that he was a man of previously good character". He said that the Royal Court had diverged by two months from the standard one-third sentence discount that is generally applied, given Andrade's guilty plea and previously clean criminal record.

Arguing against one of the conditions of the Extended Sentence License, which related to prolonged contact with girls under the age of 18, Advocate Roffey said the youngest of the victims had not been deliberately targeted because of their age. 

He said the imposition of that requirement - which he said should be changed to girls under 16 - did not appear to be either "necessary or proportionate" and that Lieutenant-Bailiff Russell Finch had failed to provide "clear and cogent justification" for imposing it. 

Court of Appeal Judge Clare Montgomery pointed out that Andrade knew that the victim in question was only 16. 

"She was targeted notwithstanding the fact that he knew her age," she said. "He was perfectly willing to go ahead and assault her."

Judge Montgomery, one of three Court of Appeal Judges, said that while the Lieutenant Bailiff Russell Finch had given a “truncated” explanation for the sentencing exercise, it was a valid one. 

Pictured: The Court of Appeal upheld the Royal Court's recommendation that Andrade be deported upon his release from Les Nicolles Prison. 

Andrade had sexually penetrated a young woman in a bathroom, stopped her from leaving, exploited her level of vulnerability at the time and threatened to kill her afterwards. 

Judge Montgomery said that was all part of the sentencing matrix: "The debts of physical harm caused and of holding her prisoner are significant aggravating factors."

The starting point for sentencing this sexual assault was five years, which she said “in any view could be characterised as objectionably low”. There was also an argument, she said, that the starting point for slapping a man's penis through his jeans - 18 months - was too high.

The Court of Appeal Judges ruled that the totality of the three, discrete offences – committed against three separate victims – was reflective of the severity of the sexual offences committed.

Guernsey's Courts have previously made it known that they are willing to go above standard starting points, Judge Montgomery noted, in the event of serious aggravating factors. This is important because of the devastating effects of crimes of this nature in a small community. 

The Court of Appeal did consent to vary the terms of the ESL, which are specific conditions imposed upon Andrade upon his release, but refused to alter the custodial stay ordered by LB Finch and the Jurats. 

“We will not tinker with sentences given out in a lower court that are otherwise appropriate."

RECAP: WHAT ANDRADE DID

December's court hearing heard that three victims were at a house party on the evening of 26 June. Upon arriving, Andrade went up to a 16-year-old girl, and smacked her hard on the bottom. The girl turned around and slapped him in the face, to which he laughed and told her to calm down before giving her a hug. 

Crown Advocate Jenny McVeigh reported that Andrade then told the girl that he "wished she was 18". Afterwards, Andrade was seen dancing with the girl's bike helmet on his head, with witnesses saying his eyes looked like "saucers" and that he was acting "like a kid on sweets."

The girl took the helmet and returned it to a bedroom, however Andrade followed quietly behind her and "grabbed her bottom so hard she was lifted off the floor".

The girl said in her victim statement that Andrade then told her: "I'd have five minutes of pleasure and do the time for you", repeatedly telling her "you know you want to."

In interview, he denied saying this, adding that he had been "joking", although his behaviour led the girl to believe that he was not joking and that she was in danger.

The Court was told that Andrade then grabbed her by the throat and threw her onto the bed before jumping and laying on top of her. She punched the side of his face and managed to escape following a struggle.

He was then seen going into the bathroom, where Andrade approached a young man, asking if he was gay. Andrade asked the victim if he wanted to see his penis, which he displayed. He then slapped the man's genitals through his trousers and walked off. 

The third assault again took place in the bathroom. Andrade was one of a number of people hanging around, and asked everyone else to leave so he could speak privately to a woman, 20, about his partner.

Once the group left, the Court was told that Andrade locked the door and stood between it and the young woman. He told her he had looked at her photos on social media and found her "sexy", before grabbing her by the neck and sexually assaulting her, causing her to scream out in pain.

Others in the flat heard the scream and forced entry into the bathroom. Andrade was thrown out the apartment and, on his way out, told the woman that he "will find you, I will find you yeah, and I will kill you."

In her victim statement, the woman said she had been left feeling insecure and paranoid and was afraid that "I am not going to be the same person I was" following the incident.

A medical examination revealed physical damage that was consistent with the woman's account of what Andrade had done to her. 

Andrade was arrested at his home at noon that day and denied ever being in a room alone with the first girl, saying it was a false allegation, "a trap and a lie".

He then claimed that the second woman had asked the others to leave the bathroom and had kissed him. "I have this feeling that everyone is trying to set me up," he said in a police interview, before eventually pleading guilty. 

Andrade was sentenced to three years, six months in prison for assaulting the woman in the bathroom; two years for assaulting the teenage girl in the bedroom; and 12 months for assaulting the man in the bathroom.