DH [2019] EWCA Crim 1446

**DH [2019] EWCA Crim 1446** concerned an appeal against sentence by a man convicted of multiple sexual offences against his ten-year-old daughter; the Court of Appeal allowed the appeal to the limited extent of increasing the credit for his guilty pleas from 25 per cent to the full one-third.

On 3 May 2018 in the Crown Court at Basildon before His Honour Judge Lodge, the appellant pleaded guilty to thirteen offences: administering a substance with intent contrary to section 61 of the Sexual Offences Act 2003, rape of a child under thirteen, assault by penetration of a child under thirteen, two offences of sexual assault of a child under thirteen, distributing indecent photographs of a child, voyeurism, three offences of taking indecent photographs of a child, and three offences of making indecent photographs of a child. For the rape (count 2) he received an extended sentence under the Criminal Justice Act 2003 of 26 years comprising a custodial term of eighteen years and an extended licence period of eight years. Concurrent determinate sentences ranging from eighteen months to twelve years were imposed for the remaining offences. The court applied the reporting restrictions under the Sexual Offences (Amendment) Act 1992.

The offending had occurred on 14 October 2017 when the child’s mother was away from the family home. The appellant drugged his daughter with Nytol and then raped her and indecently assaulted her both manually and orally, while videoing the abuse. He later distributed the footage. Police subsequently recovered from a hard drive and iPhone at his home indecent images of Categories A, B and C depicting both his daughter and other children aged between six and thirteen. The voyeurism count related to a covert recording of his daughter showering, filmed on a camera he had concealed in the bathroom. The court described the case as difficult to imagine worse of its type and the appellant’s behaviour as utterly depraved and almost beyond belief.

The appeal concerned only the discount allowed for the guilty pleas. Judge Lodge had allowed 25 per cent credit, whereas the appellant contended he should have received the full one-third. Ms O’Reilly, who appeared below and on appeal, had applied under the slip rule to have the matter relisted before Judge Lodge, and the application was argued on 2 July 2018, but the judge declined to increase the discount.

The chronology was as follows. The appellant was arrested on 26 January 2018, his home was searched, and he was interviewed and bailed. He was rearrested on 4 February and reinterviewed on 5 February. On 6 February 2018 he appeared before the magistrates’ court charged with three counts of making indecent photographs of a child and one count of voyeurism, and through his solicitor indicated he would not contest those charges. On 6 March 2018 he appeared at the Crown Court at Basildon for what was due to be a plea and trial preparation hearing. An indictment had been uploaded onto the digital system the previous day, but it did not include the allegations of rape, sexual assault or administering a substance with intent. That day a legal aid transfer was granted and a joint application was made to adjourn so that the defendant’s new lawyers could take instructions and the prosecution could review the material with a view to determining what additional counts should be included. On 6 April 2018 an amended indictment including the new counts was uploaded. A telephone hearing took place on 20 April 2018 at which the appellant was not present. On 3 May 2018 the appellant appeared at the adjourned plea and trial preparation hearing and pleaded guilty to all thirteen counts.

The court referred to the Sentencing Council guideline Reduction in Sentence for a Guilty Plea, which provides that where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should ordinarily be made. The first stage would normally be the first hearing at which a plea or indication of plea is sought and recorded by the court. The court held that the only reason the appellant had not pleaded guilty to or indicated a plea to the counts of administering a substance with intent, rape, assault by penetration, sexual assault and distributing and taking indecent photographs before 3 May 2018 was because he had no opportunity to do so until then. He could not have indicated at the magistrates’ court that he intended to plead guilty to offences with which he was not then charged. Given those circumstances, it would be wrong to deprive him of the full one-third discount to which he was entitled.

The Court of Appeal allowed the appeal by quashing the sentence on count 2 and replacing it with an extended sentence of 24 years, comprising a custodial term of sixteen years with the eight-year extended licence period remaining in place. As that was the lead sentence, no steps were taken regarding the sentences imposed for the other offences. In short, the appellant was entitled to full credit for his guilty pleas because he had entered them at the first opportunity after the relevant charges were added to the indictment.