KC [2019] EWCA Crim 1632, [2019] 4 WLR 147, [2021] Cr App R (S) 41

After the jury were sworn and the complainant’s ABE played, the appellant changed his plea to guilty to three counts of assault of a child under 13 by penetration and one of inciting a family member to engage in sexual activity.
 
For the three assault counts, he was sentenced pursuant to s236A of the CJA 2003 to a custodial term of 10 years and 6 months and a further 12 months on licence. For the incitement count, he was sentenced to 18 months’ imprisonment to run consecutively. 

He appealed against conviction and sentence with two principal issues arising:
 

1. whether the conviction was unsafe because the appellant was not allowed to change his plea from guilty to not guilty after the jury had been directed to deliver a guilty verdict, and had done so, but before sentence;
2. whether the judge erred in treating the sentence for the three counts as category 2 rather than 3. This focussed attention on the meaning of “sustained incident” and “child is particularly vulnerable due to extreme youth and/or personal circumstances” in the guidelines.

 
The complainant, B, was the daughter of the appellant’s partner, but she believed he was her biological father. 
 
The circumstances of the plea were that the jury were sent home for the day after the ABE interview had been played. The judge then made a number of comments about credit for plea. Counsel’s impression was that the judge had watched the appellant view the ABE and recognised he might not wish to contest the charges. The appellant returned the following day and said he wanted to plead guilty, although he said he had not sexually assaulted B as many times as the indictment suggested. He said he would, therefore, plead to four of the counts.
 
The case was adjourned for reports, and the appellant said he wanted to vacate his plea so was advised he would need new solicitors, who were instructed. New counsel was of the view the appellant had no power to apply to vacate his plea, having been convicted by a directed verdict of the jury. He also advised upon the prospects of an application to the Court of Appeal. The case was adjourned again, and a pre-sentence report prepared. In that report, admissions were recorded in line with his instructions to his original counsel.
 
A plea of guilty may be withdrawn at any stage before the passing of sentence. Counsel gave erroneous advice to the appellant when informing him that there was no scope for an application to vacate his plea to be made. Further, the judge erred when he concurred in this conclusion. As to whether the error caused a miscarriage of justice, the test is whether the conviction is unsafe. On the facts, the Court was clear the error “exerted no impact whatsoever upon the safety of the conviction”. The plea was clear, unequivocal and correctly given, there was no basis upon which the judge could, or should, have permitted a change of plea. 
 
The judge found that the three assaults committed when B was aged 7-8 amounted to a “sustained incident”. He did not find that each standing alone was sustained. On that basis, he found this was a category 2 case. 
 
The concept of “sustained incident” is an indicator of the measure of “harm”. The distinction between a single “sustained incident” and a series of separate incidents (none of which are sustained) is important. The guidelines refer to “incident” not “incidents”. It can refer to a single offence but can also refer to a single episode of some duration during which more than one assault can take place. The three assaults, in this case, were not a single “sustained incident”. There was a length of time between the assaults and no connecting factors linking them. The mere fact the appellant remained in a position of trust to B, and they shared the same house was not sufficient. It is difficult to see how a “sustained incident” could, in the context of sexual offending, span months. The submission that the three assaults were “sustained” or amounted to a single “incident” was rejected.
 
The judge should have found that there were three separate assaults spanning a number of years, but not a single sustained incident. The placing of the offending in category 2 was erroneous.
 
The Court then considered the argument that the offending was still in category 2 as the assault was on a child “particularly vulnerable due to extreme youth and/or personal circumstances.”
 
The judge did refer to B’s youth and vulnerability but did not expressly justify his conclusion about category 2 based on this part of the guideline. The Court was reluctant to express a firm view on what was meant by “extreme youth” but tended toward the argument that it referred to babies and toddlers, the lower end of the range of those under 13. It was not considered that this was a case of “extreme youth”.
 
The Crown avoided an argument about the precise terms and took a broad-brush approach. It was submitted there were many factors making this a category 2 case. In particular, B’s age, the familial relationship, her general vulnerability, abuse of trust, the assaults occurring in the home when her mother was absent, exposing her to porn, and the grooming element. Other serious aggravating features were also referred to. This included the appellant’s contact with B’s mother, which was prohibited by bail conditions and involved attempts to interfere with evidence and deter B from giving evidence. 
 
The Court found that it was not sensible to seek to construe the guidelines as if they were a statute. The combination of the factors applicable to this offending were broadly within the rubric “child is particularly vulnerable due to … personal circumstances”.
 
The sentence imposed was not unlawful or inconsistent with the guidelines. Although the judge erred in concluding this was a case of a “sustained incident” in terms of totality it was a lawful sentence.
 
The appeal was dismissed.