Neutral Citation Number: [2008] EWCA Crim 34
No: 200704802 A8 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Tuesday, 15th January 2007

B e f o r e:

LORD JUSTICE PILL 

MR JUSTICE PITCHFORD 
 
MR JUSTICE WALKER 
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R E G I N A 

v 

AZIZ SABIR HAMED
 
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Mr S Batiste appeared on behalf of the Appellant
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J U D G M E N T 

1.	MR JUSTICE PITCHFORD:  This is an appeal against sentence with the leave of the single judge.  The appellant was convicted after a trial of six sexual offences against the same 15 year old child, whom we shall call "B".  On 23rd August 2007 he was sentenced by the trial judge, His Honour Judge Lawler QC, at Sheffield Crown Court as follows: count 1, attempted rape, eight years' imprisonment; count 2, rape contrary to section 1 of the Sexual Offences Act 2003, ten years' imprisonment; counts 3 and 4, sexual activity with a child contrary to section 9, seven years' imprisonment; counts 5 and 6, also sexual activity with a child, two years' imprisonment.  All those sentences were ordered to run concurrently, making ten years in all.  The appellant was in addition made the subject of a Sexual Offences Prevention Order and was disqualified from working with children.
2.	B was an immature 15 year old in the care of the local authority when she was befriended by the appellant, who claimed to be aged 23 but looked older.  B was regarded by her carers as naive and sexually vulnerable.  The appellant was introduced to B by her former boyfriend.  Both men were members of the Iraqi Kurd community in Sheffield.  The relationship between B and the appellant, such as it was, lasted for a period of some seven months.
3.	The first offence of attempted rape was committed at the flat at which the appellant was living.  He plied B with vodka until she become senseless.  She woke some hours later on the appellant's bed.  The appellant had removed her trousers and attempted forcible penetration of her vagina.  She resisted him and his response was to punch her two or three times.  
4.	Notwithstanding this incident, the relationship between them continued and they developed a consensual sexual relationship.  Counts 5 and 6 reflected the unlawfulness of that relationship by reason of B's age.   
5.	The appellant was persistent in his demands of B for anal intercourse.  Eventually she agreed.  She agreed on condition that when requested he would stop.  During the act of intercourse B asked the appellant to stop because she was in severe pain.  He did not.  She bit his arms.  He took no notice of her protests and continued to ejaculation.  The appellant was charged and convicted of count 2, rape (anal rape).  Counts 3 and 4 represented further specimen acts of consensual but unlawful anal intercourse which B estimated took place on some 12 occasions.
6.	B's absences from the children's home were noticed.  She was frank with her carers about the relationship and the police were informed.  The appellant denied any sexual familiarity with B and he was eventually disbelieved by the jury.  
7.	The judge, in sentencing, remarked that B was a reluctant witness.  She believed that she was loved by the appellant, but the truth was she was used by him for sexual gratification.  There was a significant age gap between them.  The appellant was fully aware of her age.  He knew that she was naive, immature and vulnerable and took advantage of her.  He gave her small gifts but withdrew them if displeased with her.  The relationship was exploitative, coercive and possessive.  It was plain to the judge that B was in fear when giving evidence, and in his view had shown some courage in going through with her evidence.  She and others like her needed protection.
8.	Mr Batiste has argued that the appropriate starting point for the offence of rape is eight years, conceding that the victim was young and vulnerable.  This is the effect of the guidance of the court in Millberry and others [2003] 1 Cr App R 25 and Corran and others [2005] 2 Cr App R (S) 73.  He conceded that the judge was entitled, when reaching the overall sentence, to reflect the course of sexual offending and the presence of violence in count 1.  In mitigation, he relied primarily upon the appellant's previous good character, the fact of consensual sexual activity of a similar kind within a relationship and the absence in the complainant of explicit signs of trauma.  Mr Batiste submits that a sentence of ten years' imprisonment in total was too long.
9.	It is our view that the judge, having presided over the trial, was best placed to make an assessment of the nature and seriousness of the appellant's offending.  Having considered the material before the judge, we do not think that his assessment can be criticised.  
10.	In April of 2007 the Sentencing Guidelines Council issued its guideline on the Sexual Offences Act.  We agree that the starting point for a single act of rape of a child under 16 is about eight years.  The range within which the sentence is likely to fall will be six to 11 years after a trial.  
11.	Here the appellant was guilty of a prolonged period of sexual offending against a vulnerable girl.  It involved violence, grooming and persistence.  It is true that the most serious offence of rape took place in the context of similar consensual activity, but it is also true that the appellant had committed a previous offence of attempted rape against her and continued his sexual exploitation of her unabated for several months.  
12.	In the circumstances we are unable to agree that a sentence of ten years' imprisonment was manifestly excessive in total.  We do agree that there would appear to be a wide disparity between sentences of two years upon counts 5 and 6 and seven years on counts 3 and 4, but since we do not consider the total sentence to be manifestly excessive we do not propose to interfere.  The appeal is therefore dismissed.