Derek Liddiard [2019] EWCA Crim 1819
- Summary
- Citing
- Cited By
Derek Kenneth Liddiard [2019] EWCA Crim 1819 concerned an appeal by Mr Derek Kenneth Liddiard against sentence imposed by the Crown Court sitting at Maidstone, which the Court of Appeal allowed.
Mr Liddiard, who was 38 years of age, had pleaded guilty on 19 March 2019 to three offences. On 9 May 2019 he was sentenced to three years’ imprisonment on count 1, attempting to arrange an act involving the commission of an offence under sections 9 to 13 of the Sexual Offences Act 2003, namely penetrative sexual activity with a child. He received two years’ imprisonment on count 2, a similar offence concerning non-penetrative sexual activity, and one year’s imprisonment on count 3, attempting to communicate in a sexual manner with a child under section 16 of the Sexual Offences Act 2003, contrary to section 1(1) of the Criminal Attempts Act 1981. All terms were ordered to run concurrently. A sexual harm prevention order of unlimited duration was also made. He received 25 per cent credit for his guilty pleas, entered after investigations into his mental state and fitness to plead had been completed.
The facts of the offence were that police officers investigating social media correspondence had deployed an officer to pose as a 13-year-old girl called Ruby. Mr Liddiard established communication with the officer and exchanged large numbers of messages. The officer made clear that Ruby was 13 years of age. Mr Liddiard engaged in a course of conduct amounting to grooming. He sent messages expressing his feelings, saying he missed Ruby and loved her. On 4 November, when Ruby replied wishing she were older, Mr Liddiard responded by saying that if she liked and fancied him there was no harm in doing something she wanted. He told her he was a great kisser and would like to suck her tongue, and sent pictures of himself topless. After Ruby supposedly sent a photograph of herself on 8 November, Mr Liddiard said he fancied her and that she had an incredible figure. Over the following days he conducted an increasingly sexualised conversation, making suggestions that became more explicit and eventually discussing full penetrative sex and oral sex. The exchanges moved to practical arrangements for a meeting, with Mr Liddiard saying they would have a drink together and engage in sexual activity. On 12 November he sent a message stating that a week on Saturday he would be in her bed with her. A meeting point was fixed. Mr Liddiard attended and was arrested. He was found to be carrying presents for Ruby, including alcohol and condoms. When interviewed he made full admissions.
Pre-sentence reports had been commissioned. Mr Liddiard had a damaged personality resulting from prolonged and serious sexual abuse he himself had suffered as a child. He was suffering from a number of complex post-traumatic stress disorders which had never previously been identified or treated. The learned judge in passing sentence took into account Mr Liddiard’s difficulties and the fact that a prison sentence would be all the more difficult for him. The prosecution had urged the court to place the offences into category 1A of the relevant guideline in the Sentencing Council’s definitive guideline dealing with sexual activity with a child. The Crown advanced this categorisation on the basis that the offences intended to have been committed were penetrative, identifying the harm within category 1 because of the completed act.
On appeal, Mr Liddiard submitted that the categorisation of the offences as being in category 1 in respect of harm was an error. Although the judge had dealt with the fact that these were attempts, she had not referred to the absence of a real victim. It was submitted that there was no child on the other end of the electronic communications. The court’s attention had not been drawn to the line of authorities dealing specifically with offences of this sort. In particular, in R v Cook [2018] EWCA Crim 530, the court had held that where a case involved inciting rather than causing sexual activity and where there was no physical contact with or any communication with a real child, category 3A was the correct category, following R v Gustafsson [2017] EWCA Crim 1078.
Mrs Justice McGowan, giving the judgment of the court, held that it was a serious failing in the court below that neither counsel nor the judge was aware of this line of authority. The court accepted the submission that the case had been incorrectly categorised below and should have been identified by all parties as a category 3A case. Had that been the position, the starting point would have been one of 26 weeks’ custody with a range from a high-level community order to three years’ custody. The court noted that Mr Liddiard was deeply vulnerable, had a very limited IQ and many psychiatric and mental problems, and had been in custody since November 2018. Had the court’s attention been directed to the correct categorisation, alternatives to custody or custody of that length might have been made apparent and some therapeutic form of treatment might have been considered appropriate. The court observed that there was little that could be done at that stage to afford therapy to this particularly vulnerable appellant, and that dealing with the case in September 2019 it had little power or facility to order any form of therapy or rehabilitation beyond altering the sentence to reflect what should have happened below.
The court accordingly quashed the sentence of three years on count 1 and substituted a term of one year. It also quashed the term of two years on count 2 and substituted a term of one year. Count 3 remained unaltered. All terms were to run concurrently, making a total term of one year’s imprisonment, which the court understood would bring about Mr Liddiard’s immediate release. In short, the appeal was allowed on the basis that the sentencing court had wrongly categorised offences involving an undercover officer posing as a child as category 1A when the absence of a real victim required category 3A.