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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Bidmead, R. v [2009] EWCA Crim 1799 (12 May 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1799.html Cite as: [2009] EWCA Crim 1799

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12th May 2009

1. JUDGE WADSWORTH: This appellant was sentenced by Judge Hamilton at the Crown Court in Derby to imprisonment for public protection with a minimum custodial term of five years in respect of offences of sexual activity with a child, and also to an 18 month extended sentence concurrent for possessing indecent photographs of a child or young person. This appeal is made out of time by leave of the single judge and is limited to the question of the appropriate minimum term on the sentence of imprisonment for public protection.
2. The appellant was of course also the subject of a Sexual Offences Prevention Order for an indefinite term and was disqualified from working with children. No appeal lies in respect of those matters.
3. His co-accused was a man of similar age who received a total sentence of six years' imprisonment, which this court reduced to a four year determinate sentence, and it was, as Mr Smith has rightly told us, that decision of this court which led to this application being made and granted out of time.
4. The appellant and his co-accused were homosexual partners living in a house where there was a room which they called the "Egyptian Room" with an adjoining hot tub and sauna, and it was clear that various parts of the house had been converted and were being used for homosexual activities.
5. On the joint indictment with his co-defendant this defendant pleaded guilty on counts 4, 6, 8 and 10 to sexual activity with a child, and on counts 12 and 13 to possessing indecent photographs of a child. The child, named J, was 14 at the time of the offence. He was a young man who had had an unhappy and difficult life at home and had been asked to leave by his mother. He had gone to stay with other young men in the neighbourhood, who soon introduced him to the appellant. J then moved into the house with the appellant and his co-accused and stayed there for some four months in the course of 2006. It is clear that he fell under the controlling influence of the appellant and began to engage regularly in consensual sexual activity. This resulted in the two specimen counts on the indictment, counts 4 and 6, relating to acts of oral sexual intercourse. The young man said that it happened too regularly to be able to give an exact account, but that it was sometimes three times a day, that it happened on about ten separate occasions, and one of those was a three-some with the appellant and his co-accused.
6. Counts 8 and 10 on the indictment alleged anal penetration of the child by the appellant. Again, these were specimen counts in that it was alleged that this had happened on more than four occasions.
7. When the police searched the house they recovered a home made video showing two boys or young men engaged in oral and anal intercourse with the appellant and the co-accused. It appeared from the video that that activity was consensual. It was that matter which led to the counts of possessing indecent photographs.
8. The appellant is a man of nine previous convictions with a history of sexual offences against children and of violence dating back some 20 years. These convictions included indecent assaults on males under the age of 14 and the age of 16 years, buggery (as it was then called) and gross indecency with a child and unlawful sexual intercourse with a young female.
9. The appeal before this court relates only to the tariff element of the sentence, which it is submitted is manifestly excessive in that it must be based on a notional determinate sentence of ten years following a plea of guilty, which indicates a 15 year term had the sentence been imposed after trial.
10. Leave to appeal out of time was sought and given following the decision to reduce the sentence on the appellant's co-accused, Clinch.
11. We have had the benefit of considering the judgment of that court and seeing the pre-sentence reports in relation both to the appellant and his co-accused. When both parties were sentenced, the learned judge described the appellant as "clearly the most involved in this particular series of offences". He also described the appellant as drawn to young people who were particularly vulnerable young people who came from broken homes and as a manipulative man who would in due course try to manipulate the Parole Board when the time for review came. In sentencing, the judge noted that a previous offence had been in relation to a 14 year old boy and explained that in this present case, had there been a conviction after trial, sentences would have been consecutive and would have exceeded 14 years. The reason given for the consecutive sentence was that the judge regarded the appellant's house as deliberately set up to what he described as "almost a sort of honey trap for young children". The appellant is described as having total control over the boy concerned in this case and it is clear that the judge worked on the basis that he was discounting from a notional total of 15 years.
12. So far as concerns the co-defendant Clinch, he was a man of good character, found to be under the influence of the appellant. He was described by the judge as being simply interested in his own sexual gratification, but nevertheless of former good character and not a serious danger or serious risk. For that reason there was no imprisonment for public protection in his case but a term of six years after giving credit for plea. This court held in relation to Clinch that the starting point of nine years without discount for a plea of guilty was too long, and we are invited to use that as something of a bench mark for the starting point of 15 years in the case before us.
13. As the court said in Clinch's case, the breadth of the suggested sentencing range in the definitive guidelines is great and reflects the fact that each case turns very much on its own facts. Nevertheless, we do receive assistance from the indication that the appropriate starting point for the co-accused was one of four years after a plea of guilty. On that basis we have come to the view that the appropriate sentence upon this defendant, had it been a determinate sentence after trial, would have been one of the order of 12 years. Giving the normal discount on a plea that would be one of eight years, so that the minimum period to be served on a sentence of imprisonment for public protection becomes one of four years rather than the five years pronounced by the trial judge. To that extent this appeal is allowed, but we stress in so doing that that four years is a minimum term and the amount of time eventually served will be a matter for review as appropriate. All other orders to stand.