R v Benjamin Sidwell

On 19 April 2024, in the Crown Court at Mold before His Honour Judge Parry, the applicant who was then aged 35, was convicted by a jury of 7 counts of a number of sexual offences against a child under 13 contrary to the Sexual Offences Act 2003, the most serious of which were rape and sexual assault of a child under 13 by penetration. The following month he was sentenced for the rape offence to a special custodial sentence of 14 years under section 278 of the Sentencing Act 2020, comprising a custodial term of 13 years less 207 days for time spent on a qualifying curfew and a further 1 year period of licence. No separate penalty was imposed on the remaining counts.

The applicant renews his application for leave to appeal both conviction and sentence following refusal by the Single Judge. He also applies for an extension of time of 54 days in which to lodge his oral renewal application against sentence; an order for prosecution disclosure; and leave to admit fresh evidence.

The offences had occurred over a 10 week period at the beginning of 2023 when the complainant stayed over at the applicant’s house visiting a relation. The offending came to light when the Claimant’s relation witnessed inappropriate behaviour by the Applicant towards the Claimant in the kitchen and she reported it to the police. As well as the account of the Claimant and the fact that the incident had been observed by the relation, the Applicant’s semen was found on the outside and inside of a waistband of a pair of shorts said by the prosecution to belong to the Claimant.

The Applicant’s defence was of denial. The Claimant’s evidence was not reliable, the shorts on which the semen found were his partner’s shorts and even if the Claimant had been wearing them, his semen could have been indirectly transferred from his semen on the sheets in his and his partner’s bed onto the shorts the complainant was wearing, as the Claimant often sat on their bed, rather than from direct transmission from sexual conduct with the Claimant. There were inconsistencies in the Claimant’s evidence over dates and details of the alleged offences and no corroborating text messages were found. Furthermore, his hand had bandaged at the time of his arrest which undermined the credibility of the complainant’s account of what had occurred that day.

The Applicant had the opportunity to test the prosecution’s evidence in the trial and advance his arguments and evidence before the jury. Witnesses can often be mistaken about a particular date, but whether or not it undermines the central truth of an allegation is for a jury to decide. The explanation for the lack of text messages was because the Claimant’s evidence was that the Applicant sent messages by Snapchat which has a disappearing message function which the Applicant had activated and that after the Claimant deleted him from her contacts, the messages were automatically lost from her phone too.

The jury heard the evidence and there was sufficient evidence before the jury on which they were entitled to convict. There is no requirement for corroboration if there is sufficient strength in the primary evidence.

The Applicant now argues that insufficient investigation and forensic analysis was conducted on the bandage from his hand on the day he was arrested, shortly after the last offences took place of sexual touching over clothes. Also, further investigation into the question of whether it was scientifically possible for his semen to have found its way onto the Claimant’s shorts from her having sat on the Applicant and his partner’s bed was required to enable a jury to be sure of his guilt. He seeks an order for disclosure.

If there was anything in these points they could and should have been raised before the trial and investigated. Furthermore, the assertions are based on speculation, unsupported by any information or evidence to suggest that there is further information to disclose. It is not apparent how the other documents sought would assist his defence and many of the requested documents were available before the trial listed as unused material that the defence could have requested and viewed, such as the body worn footage, which was assessed as neither undermining the prosecution case nor supporting the defence.

No new evidence has been produced – there are no statements from any proposed new witnesses for the court to consider,nor any indication of how they might have been able to assist his defence - and the new evidence application does not meet the test under s.23 Criminal Appeals Act 1968.

It is not reasonably arguable that the conviction was unsafe. All the applications are refused.

In very careful and clear sentencing remarks by the trial judge, who was best placed to understand the evidence, very fairly placed the offending for the lead offence of rape in category A3. He rejected the prosecution’s submission that it should be a category A2 offence since it would result in the double counting of features inherent in the offence. The starting point for a single offence was thus 8 years with a range of 6 -11 years. He noted the number of aggravating features that required an upward adjustment to the starting point such as the Claimant’s vulnerability from her personal circumstances, the abuse of trust, that the offence happened in what was effectively her own home, in her bedroom where she was meant to feel safe and that there was ejaculation. There was also significant grooming. The Applicant had befriended the vulnerable 11 year old Claimant to make her reliant upon him for emotional support, thereby providing the opportunity for him to commit these offences for his sexual gratification. His behaviour escalated over time from sending sexual messages, to asking her to remove her clothes, to touching her first over and then under clothing, on her breasts and her vagina leading to oral and digital penetration, causing her to masturbate him, and eventually rape.

But the Judge also acknowledged the mitigating factors which were the Applicant’s lack of previous convictions, his work ethic and supportive reference from his employer and that the offending was relatively short lived.

The Judge had regard to the totality principle by treating the rape offence as the lead offence and imposing no separate penalty for any of the other offences. It is not reasonably arguable that the final sentence of a determinate sentence of 13 years for all of the offending is manifestly excessive. It fell squarely within the guidelines in recognition of the seriousness of the offences, the Applicant’s culpability and the harm caused by the offending. Since these were specified sexual offences ss.266 - 279 Sentencing Act 2020 required the judge to consider if the applicant was “dangerous”, as defined in the Sentencing Act 2020. The Judge gave the A the benefit of the doubt and did not find him dangerous. However three of the offences required a mandatory special sentence for offenders of particular concern for which the Judge was required to impose an extended licence term of 12 months.

Since there is no merit in the proposed appeal against sentence it is not in the interests of justice to grant the extension of time required of 54 days.

All applications are refused.