Factual and Procedural Background
On 17th November 2016, in the Crown Court at Preston, the Appellant changed his plea to guilty to four counts, including three counts of assault of a child under 13 years old by penetration contrary to Section 6 of the Sexual Offences Act 2003 ("SOA 2003") and one count of inciting a family member to engage in sexual activity contrary to Section 26 SOA 2003. The Appellant was sentenced to concurrent custodial terms of 10 years and 6 months plus 12 months on licence for the three assault counts, and a consecutive term of 18 months for the incitement count. The sentencing was structured in accordance with guidance from the Court of Appeal in R v Fruen.
The Appellant appealed both conviction and sentence, raising two principal issues: (a) whether the conviction was unsafe because the Appellant was not permitted to apply to change his plea from guilty to not guilty after the jury had been directed to deliver a guilty verdict but before sentence; and (b) whether the sentencing judge erred in treating the assaults as Category 2 Harm under the Definitive Guidelines on Sexual Offences rather than Category 3, focusing on the interpretation of "sustained incident" and "child is particularly vulnerable due to extreme youth and/or personal circumstances".
The Appellant also sought leave out of time to raise new grounds, including that the plea was to an incorrect charge because the evidence did not disclose penetration and should have been charged under Section 7 SOA 2003 (sexual assault without penetration). Restrictions on publication relating to the complainant applied under the Sexual Offences (Amendment) Act 1992.
The facts revealed that the complainant, the daughter of the Appellant's partner but who believed the Appellant was her biological father, was assaulted on three occasions between 2006 and 2008 when aged 7-8 years, with the assaults occurring when the complainant's mother was absent. The Appellant also sent inappropriate messages to the complainant when she was 15, inciting sexual activity. The Appellant initially pleaded not guilty but changed his plea to guilty after the complainant's Achieving Best Evidence (ABE) interview was played to the jury.
Following the guilty plea, the judge directed the jury to deliver guilty verdicts, which they did. The Appellant later sought to vacate his plea but was advised by new counsel and the judge that no application was possible after the directed verdict. The Appellant had admitted culpability in a pre-sentence report and had sent further incriminating messages after the assaults.
Legal Issues Presented
- Whether the conviction was unsafe because the Appellant was denied the right to apply to change his plea from guilty to not guilty after the jury had been directed to deliver a guilty verdict but before sentence.
- Whether the sentencing judge erred in classifying the assaults as Category 2 Harm rather than Category 3 under the Definitive Guidelines on Sexual Offences, particularly regarding the interpretation of "sustained incident" and "child is particularly vulnerable due to extreme youth and/or personal circumstances".
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that the conviction was unsafe because he was not permitted to apply to change his plea from guilty to not guilty after the jury had been directed to return guilty verdicts but before sentencing.
- The Appellant argued that the sentence was improperly categorised as Category 2 Harm rather than Category 3 because the three assaults were separate incidents and not a single "sustained incident".
- He further contended that the complainant was not "particularly vulnerable" due to "extreme youth", as she was aged 7-8, which did not amount to "extreme youth" under the Guidelines.
- He sought to raise new grounds, including that the charges were incorrect as there was no evidence of penetration, thus the charges should have been under Section 7 SOA 2003.
Crown's Arguments
- The Crown argued that the Appellant was not entitled to apply to change his plea after the jury's directed verdict and that the guilty plea was made with full knowledge and appropriate legal advice.
- Regarding sentencing, the Crown contended that the three assaults amounted to a single "sustained incident" due to the continuous familial context, abuse of trust, and similar modus operandi, thus justifying Category 2 Harm classification.
- Alternatively, the Crown argued that even if not a single sustained incident, each assault was itself a sustained incident lasting a significant period, citing R v B as a comparable case.
- The Crown maintained that the complainant was "particularly vulnerable" due to her young age, familial relationship, grooming, and other personal circumstances, justifying Category 2 Harm.
- The Crown rejected the argument that the charges were incorrect, citing express evidence of penetration and the Appellant's admissions.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Fruen [2016] EWCA Crim 561 |
Sentencing guidance for sexual offences |
Used as authority for structuring the sentences for the assault counts. |
| R v Plummer [1902] 2 KB 339 |
Power of court to permit change of plea before sentence |
Confirmed that a plea of guilty may be withdrawn at any time before sentence. |
| S v Recorder of Manchester [1971] AC 481 |
Conviction arises only at sentence; right to change plea before sentence |
Supported that courts can permit change of plea before sentence. |
| Dodd (1981) 74 Cr App R 50 |
Discretion to allow change of plea before sentence must be exercised judicially |
Confirmed the existence and judicial exercise of discretion to change plea pre-sentence. |
| R v McNally [1954] 2 All ER 372 |
Discretion to refuse change of plea where plea is unequivocal and understood |
Approved trial judge’s refusal to permit change of plea in clear guilty admission case. |
| Revitt v DPP [2006] 1 WLR 3172 |
Approach to change of plea and discretion |
Supported sparing exercise of discretion to allow plea change. |
| R v Brahmbhatt [2014] EWCA Crim 573 |
Discretion regarding change of plea |
Reaffirmed principles limiting change of plea after clear admission. |
| R v Mamaliga & Mamaliga [2018] EWCA Crim 515 |
Definition of "sustained incident" in sentencing guidelines |
Used to illustrate that a single episode involving multiple offences over a continuous period can be a sustained incident. |
| R v B [2015] EWCA Crim 319 |
Application of "sustained incident" concept to relatively short duration offences |
Referenced as example where brief but continuous conduct was treated as sustained incident. |
| R v James [2018] EWCA Crim 285 |
Guidance on delay in seeking leave to raise new grounds |
Applied to refuse leave due to long delay without adequate explanation. |
Court's Reasoning and Analysis
The Court acknowledged established law that a defendant may withdraw a guilty plea at any time before sentence, citing multiple authoritative cases. It found that counsel and the sentencing judge erred in concluding the Appellant had no right to apply to change his plea after the jury's directed verdict but before sentence. However, the Court held that this error did not render the conviction unsafe. The Appellant had been represented by experienced counsel, had given detailed admissions recorded in a verbatim note, and was fully aware of the charges. The decision to plead guilty was deliberate and informed, supported by admissions in the pre-sentence report and subsequent incriminating conduct.
Regarding sentencing, the Court considered the distinction between Category 2 and Category 3 Harm under the Definitive Guidelines. The judge had found the three assaults constituted a single "sustained incident," justifying Category 2. The Court analyzed the phrase "sustained incident," noting it implies temporal continuity and a single episode rather than multiple separate incidents. It rejected the Crown's argument that the three assaults spanning years amounted to a single sustained incident, finding the judge erred in this respect. The Court also rejected the alternative Crown argument that each assault individually was a sustained incident, citing insufficient evidence and the need to avoid speculative analysis.
On the vulnerability factor, the Court noted that "extreme youth" likely refers to very young children such as babies or toddlers, and that the complainant's age (7-8) was borderline but not clearly "extreme youth." The Court accepted that the complainant was vulnerable due to personal circumstances, including familial relationship, grooming, abuse of trust, and the context of the assaults. This justified treating the case as Category 2 Harm, even if the "sustained incident" factor was incorrect.
The Court further considered aggravating factors such as attempts to interfere with evidence and the overall pattern of abuse. It concluded that the total sentence was lawful and consistent with the Guidelines, especially given the reduction in sentence for the incitement count and the totality principle.
The Court rejected the Appellant's contention that the charges were incorrectly laid, affirming that evidence and admissions supported the penetration charges.
Finally, the Court refused leave to raise new grounds out of time, applying established guidance on delay and finding no adequate explanation for the late application.
Holding and Implications
The appeal was DISMISSED.
The Court held that while the trial counsel and judge erred in advising that no application could be made to change the plea after the jury's directed verdict, this did not render the conviction unsafe given the Appellant's informed and unequivocal guilty plea supported by admissions and evidence. The sentencing judge erred in treating the three assaults as a single "sustained incident" under the Guidelines, but the overall sentence was lawful because the vulnerability of the complainant and other factors justified Category 2 Harm classification and the totality of the sentence was appropriate. The Appellant's additional grounds, including the challenge to the charges, were rejected, and leave to raise new grounds out of time was refused due to delay and lack of merit.
No new precedent was established; the decision reaffirmed existing principles regarding change of plea, the interpretation of sentencing guidelines, and procedural requirements for raising new grounds of appeal.