Clinch, R v [2008] EWCA Crim 1630

[2008] EWCA Crim 1630Case No 200800778/A4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 9th June 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SCOTT BAKER
MR JUSTICE BURNETT
HIS HONOUR JUDGE ROBERTS QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
SIMON CLINCH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss N Grahame appeared for AppellantMr R Brown appeared for Crown
J U D G M E N T

HIS HONOUR JUDGE ROBERTS: This is an appeal against sentence by leave of the single judge.

[2]The appellant is Simon Clinch, who is now aged 35, and the sentence appealed against is a total sentence of 6 years' imprisonment, for four offences of sexual activity with a child and one offence of possessing indecent photographs of a child.[3]The background to these offences was as follows. The appellant was a man of previous unblemished character with an excellent work record. In 1995, when he was 22, and said to be both sexually and emotionally immature, he began a homosexual relationship with Anthony Bidmead. Anthony Bidmead was 2 years older than the appellant and had accumulated something of a record for sexual offences against young children. Bidmead had been convicted in 1988 of gross indecency a child; in 1990 of buggery, indecent assault on a boy under the age of 16, gross indecency with a child and unlawful sexual intercourse with a girl under the age of 16; and in 1992 of gross indecency with a child and indecent assault on a boy under the age of 14. For all those offences except the first he had served custodial sentences.[4]After they met in 1995, Bidmead and the appellant lived together until they were both arrested for the offences to which this appeal relates. Bidmead was described by the sentencing judge as "dangerous and manipulative". Bidmead was clearly the dominant partner in the relationship and the appellant was very much under his influence.[5]They owned their own house in Blidworth which they converted into what was to be described by the judge as a "honey trap" for young adolescent males. There was a room with a hot tub, a bar from which drinks were dispensed, a snooker table, a sauna, a weapons room and a cinema in the attic. Sure enough a number of young adolescent males were attracted to the house, and evidence was to emerge that more than one of them had been sexually abused.[6]On 15th October 2007 in the Crown Court at Nottingham, Bidmead pleaded guilty to an offence against a boy to whom we shall refer as S. Both Bidmead and the appellant pleaded guilty to offences against another boy, to whom we shall refer as J.[7]As regards S, Bidmead pleaded guilty to indecently assaulting him in 2000 and 2001, when S was aged 14. That offence was contrary to section 15(1) of the Sexual Offences Act 1956. The offence related to a single occasion when Bidmead had taken S to a disco and, on their return to the house, Bidmead took down the boy's lower clothing and placed the boy's penis into his, Bidmead's, mouth. It was accepted that S consented to this activity but, of course, consent was not a defence to a charge of indecently assaulting a child under 16. The purpose of the legislation was to prevent children from being corrupted by older people into participating in sexual activity before they were sufficiently mature. The appellant had not been involved in that offence committed by Bidmead.[8]As regards J, the abuse in his case occurred between August and November 2006 when, with his mother's approval, he was living at Bidmead and the appellant's house. Bidmead pleaded guilty to four counts of sexual activity with J, contrary to section 9 of the Sexual Offences Act 2003. Two of those counts related to oral sex with J and the other two to anal sex with him. Oral sex between Bidmead and J occurred on numerous occasions and anal sex on three occasions.[9]The appellant also pleaded guilty to four counts of sexual activity with J. In his case too, two counts related to oral sex and two to anal sex. Oral sex between the appellant and J occurred on about 10 occasions and anal sex on two occasions. All the occasions on which any form of sex occurred between Bidmead or the appellant and J were, as in the case of S, consensual.[10]The abuse of J began with Bidmead. After a time the appellant started to abuse J as well. There was one three-some, as it was referred to, in the course of which both men had oral sex with J and another in which they both had anal sex with him.[11]Bidmead also pleaded guilty to two counts of possession of indecent photographs of children, contrary to section 160 of the Criminal Justice Act 1988 and the appellant to one such count. Those counts related to homemade video recordings of young adolescent males engaging in consensual sexual activity with Bidmead and the appellant. These young adolescent males may in fact have been aged as much as 17; if not, they may have been believed by Bidmead and the appellant to be so. If they were, a curious anomaly arises: it was not in fact unlawful for Bidmead or the appellant to engage in consensual sexual activity with a 17-year-old male but, under the 1988 Act, it was unlawful for either of them to have in their possession a video recording of that activity.[12]The sentencing judge had before him a pre-sentence report on both defendants and, in the appellant's case, a number of impressive character references. He found Bidmead to be the prime mover in these offences. The offences under the Sexual Offences Act 2003 were series specified offences for the purposes of the Criminal Justice Act 2003 and the judge found that Bidmead met the dangerousness criteria. He therefore imposed on Bidmead, for the offences under the Sexual Offences Act 2003, a sentence of imprisonment for public protection, with a minimum term of 5 years. He arrived at that on the basis that, if Bidmead had been convicted after a trial and had been convicted of all the offences to which he in fact pleaded guilty, the appropriate sentence would have been 15 years, but allowing full credit for his plea of guilty, the notional determinate sentence was 10 years. The judge imposed no separate penalty for the indecent assault on S and concurrent sentences of imprisonment for the possession of indecent photographs.[13]So far as the appellant was concerned, the judge did not make a finding of dangerousness and accepted that the appellant was very much under the influence of Bidmead. However, as the judge rightly said:
"...that did not mean to say that you had to join in the sex acts and not only that, but after your partner had abused him you yourself individually abused that boy when your partner was not present. So there is no purpose in complaining that everything was down to your partner - it is not. You decided that you would continue to abuse the boy when you chose to. You, like your co-accused, were simply interested in your own sexual gratification."
[14]In the appellant's case the judge concluded that, on conviction after a trial, the appropriate sentence would have been 9 years; allowing full credit for his plea of guilty, the judge passed a total sentence of 6 years, made up of concurrent sentences of 4 years on the oral sex counts, 6 years on the anal sex counts and 12 months on the indecent photographs. He directed that time spent on remand should count towards the sentence.[15]Miss Grahame, on behalf of the appellant, submits that a total sentence of 6 years was manifestly excessive in the appellant's case. She has referred us to the relevant definitive guideline issued by the Sentencing Guidelines Counsel and to the decisions of this court in three previous cases: R v Fairhurst [2007] 2 Cr App R(S) 263; R V RG [2007] Crim LR 289 and R v Cohen [2007] 2 Cr App R(S) 497. The relevant definitive guideline identifies a starting point of 4 years' imprisonment on conviction after a trial, for a single offence of sexual activity with a child, involving consensual anal and/or oral penetration. The suggested sentencing range is 3 - 7 years. That wide range reflects the fact that each case will necessarily turn very much on its own facts, so the assistance to be derived from previous reported cases is limited.[16]In support of her submission that the sentence in this case was too long, Miss Grahame relies upon a number of matters of mitigation, which she sets out in her grounds of appeal as follows: first, the consensual nature of all the activity between the appellant and J; second, the fact that the appellant was introduced to the offending by the co-accused; third, the fact that although the appellant's offending was not limited to a single occasion, there was a relatively small number of occasions in a limited time span; fourth, the features of the appellant's relationship with the co-accused relevant to the offending; fifth, the absence of significant aggravating factors relating to the appellant's offending; sixth, the substantial personal mitigation available to the appellant; and seventh, the lawful nature of the filmed sexual activity, the subject matter of the indecent photograph count, and the fact that footage had not been shown or distributed.[17]These were, in our view, serious offences requiring a substantial prison sentence, but we accept Miss Grahame's submission that a starting point of 9 years, before deduction of the one-third discount for the appellant's plea of guilty, was too long. In addition to giving credit for the plea of guilty, the learned judge was required to give credit also for the other matters of mitigation relied upon by Miss Grahame.[18]We have come to the conclusion that, after giving credit for all those matters, the appropriate total sentence in this case should have been one of 4 years' imprisonment. We accordingly allow this appeal by reducing the total sentence of 6 years to one of 4 years. We do that by reducing the 6 year sentences for the anal penetration counts, that is counts 9 and 11 on the indictment, from 6 years to 4 years. The remaining sentences will remain as they are. The time spent on remand will, of course, still count towards the sentence.