KC [2019] EWCA Crim 1632, [2019] 4 WLR 147, [2021] Cr App R (S) 41
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KC [2019] EWCA Crim 1632 was an appeal against conviction and sentence heard by the Court of Appeal (Criminal Division) (Lord Justice Green, Mr Justice Phillips and Her Honour Judge Molyneux). The appeal against conviction was dismissed on the ground that, notwithstanding an error of law by the trial judge and counsel, the conviction was safe. The appeal against sentence was also dismissed.
The appellant (KC) had been convicted at Preston Crown Court before His Honour Judge Knowles QC on four counts after changing his plea to guilty mid-trial. The jury had been sworn and the complainant’s ABE interview played when the appellant entered guilty pleas to three counts of assault of a child under thirteen by penetration contrary to section 6 of the Sexual Offences Act 2003 (counts 2, 3 and 4) and one count of inciting a family member to engage in sexual activity contrary to section 26 of the same Act (count 8). The jury were directed to return guilty verdicts. On counts 2, 3 and 4 the appellant was sentenced pursuant to section 236A of the Criminal Justice Act 2003 to eleven years and six months’ imprisonment (comprising ten years and six months’ custody plus twelve months on licence) on each count concurrently. On count 8 he received eighteen months’ imprisonment consecutively. The structure followed the guidance in R v Fruen [2016] EWCA Crim 561.
The offences on counts 2, 3 and 4 occurred between 2006 and 2008 when the complainant (B), the daughter of the appellant’s partner, was aged between seven and eight. The appellant, whom B believed to be her biological father, assaulted her on three separate occasions when her mother was out of the house. Each time the appellant brought B downstairs, lay down with her under a blanket and inserted his finger into her vagina. Count 8 concerned events some five years later when B was fifteen. The appellant, jealous of her boyfriend, sent inappropriate Facebook messages asking her to send naked pictures and stating he wished to give her an orgasm. These messages caused B to disclose the earlier abuse.
At trial the appellant’s then counsel advised him on sentence after the ABE interview was played. The appellant told counsel he had been taking cocaine and amphetamines at the time of the earlier offending, that his libido was uncontrollable, and that he had assaulted B in the manner described on no more than three occasions. He signed a verbatim note confirming this account and stating he could not put B on trial when she was telling the truth. Following the directed verdicts the appellant contacted his solicitor wishing to vacate his plea. New solicitors and counsel were instructed. The new counsel advised that once the jury had returned guilty verdicts the court had no power to permit a change of plea. The judge concurred with that view. The appellant was then advised that an application to the Court of Appeal would be very unlikely to succeed and that proceeding with sentence would preserve some credit for his guilty plea. He instructed counsel to proceed without restriction and cooperated with the preparation of a pre-sentence report, in which he admitted his conduct and described it as an appalling breach of trust.
On appeal the first ground was that the conviction was unsafe because the appellant had been wrongly denied the opportunity to apply to change his plea. The Court of Appeal held that both counsel and the judge had erred in law. A defendant may apply to withdraw a guilty plea at any time before sentence is passed, and the court has a discretion to permit this, to be exercised judicially albeit sparingly. The authorities, including R v Plummer [1902] 2 KB 339, S v Recorder of Manchester [1971] AC 481, Dodd (1981) 74 Cr App R 50, Revitt v DPP [2006] 1 WLR 3172 and R v Brahmbhatt [2014] EWCA Crim 573, established that proposition. However, the Court concluded that the error had caused no miscarriage of justice. The appellant had been represented by experienced counsel and solicitors, had given a detailed and convincing explanation acknowledging guilt, had not been under any disability, had been fully aware of the charges, had taken time to consider his position overnight, and had admitted his culpability in the pre-sentence report. The Facebook messages confirmed his unhealthy interest in the complainant. The guilty plea was clear, unequivocal and correctly given. There was no basis upon which the judge could or should have permitted a change of plea, and the new counsel’s advice to that effect had been correct. This ground of appeal was therefore dismissed.
The second ground concerned the judge’s categorisation of harm under the Sexual Offences Definitive Guideline. It was common ground that this was category A culpability. The issue was whether it fell within category 2 harm (starting point eleven years, range seven to fifteen years) or category 3 harm (starting point six years, range four to nine years). The judge had found that the three assaults amounted to a “sustained incident” within category 2. The appellant contended that the judge erred: these were three separate incidents, none of which was itself sustained, and all fell within category 3.
The Court of Appeal accepted that the phrase “sustained incident” appeared throughout the Guidelines as an indicator of harm and that the distinction between a single sustained incident and a series of separate incidents could lead to a significant difference in sentence. An “incident” could refer to a single offence in context or to a single episode of some duration within which more than one assault might take place, as in R v Mamaliga and Mamaliga [2018] EWCA Crim 515 where multiple rapes over twenty-five minutes were treated as a sustained incident. The Court rejected the Crown’s argument that the three assaults in this case amounted to a single sustained incident. The length of time between the assaults and the absence of connecting factors beyond the familial context and shared home were insufficient to create the continued linkage needed. The judge had erred on that point.
The Court was reluctant to decide an alternative Crown argument that each individual assault was itself a sustained incident, referring to the modius operandi involving television, a rug and a period of ten to fifteen minutes, because the judge had not analysed the facts that way and aspects of the description might be disputed. The Court also considered that a “sustained incident” would likely be relatively short-lived, measured in minutes, hours or possibly in an exceptional case a day or more, but not months or years. The parallel phrase “prolonged detention” in the Guidelines suggested a single episode with a start and an end point, supporting the conclusion that three assaults over years were not a sustained incident.
However, the Court concluded that the sentence was nonetheless lawful. Even if the judge erred in finding a sustained incident, this remained a category 2 case because the child was “particularly vulnerable due to extreme youth and/or personal circumstances”. While the Court was reluctant to define “extreme youth” precisely and tended towards the view that a child aged seven or eight was not of extreme youth in that sense, it accepted the Crown’s broader argument that the combination of factors in the round made this a category 2 case. Those factors included B’s young age, her familial relationship with the appellant, her general vulnerability, the abuse of trust, the assaults occurring in her home when her mother was absent, exposure to pornography, grooming, and a pattern of abusive behaviour over time. The judge had also properly identified aggravating factors: the appellant’s attempt to resile from his admission, which caused distress to B and her grandparents; and his breach of bail conditions by contacting B’s mother and sending anonymous Facebook messages to dissuade her from believing B and to interfere with the evidence. These steps to prevent or undermine the prosecution were serious aggravating factors.
The Court held that the combination of factors fell broadly within the rubric of a child particularly vulnerable due to personal circumstances, or alternatively that even if the facts technically fell into category 3, the combination of circumstances would have warranted a sentence of the order imposed, whether by consecutive sentences on counts 2, 3 and 4 or by moving outside the category 3 range. When totality was considered, including that the judge had materially reduced the sentence for count 8 so that the real burden fell on the section 6 offending, the sentence was lawful. The Court emphasised that the Guidelines could not be construed as if they were a statute and required a degree of elasticity; standing back, the sentence was not unlawful or inconsistent with the Guidelines.
The Court refused leave to advance further grounds raised long out of time. It rejected the argument that the judge erred in relation to count 8 by imposing eighteen months consecutively despite the absence of actual sexual conduct. The judge had properly found category 1 harm because the appellant plainly intended penetration and category A culpability because of grooming and targeting a particularly vulnerable child. The sentence was significantly discounted by reference to totality and was well within the judge’s discretion. The Court also rejected the contention that the charges were incorrectly laid because there was no evidence of penetration: there was express evidence in the ABE interview and the appellant had knowingly admitted to the indicted charges. The Court echoed the Crown’s concerns about delay in seeking leave to advance new grounds and referred to the guidance in R v James [2018] EWCA Crim 285.
In short, although the judge erred in concluding that three assaults over time constituted a single sustained incident, the conviction was safe and the sentence lawful when assessed by reference to the alternative category 2 harm factor and the totality of the offending.
LF and DS [2016] EWCA Crim 561; [2016] 2 Cr. App. R. (S.) 30; [2016] 1 WLR 4432
Plummer [1902] 2 KB 339
McNally [1954] 1 WLR 933, [1954] 2 All ER 372 , [1954] 118 JP 399
Revitt and Others v Director of Public Prosecutions [2006] EWHC 2266 (Admin), [2006] 1 WLR 3172
Brahmbhatt [2014] EWCA Crim 573
Mamaliga [2018] EWCA Crim 515
B [2015] EWCA Crim 319
James [2018] EWCA Crim 285
S (An infant) v The Recorder of Manchester [1971] AC 481, [1970] 2 WLR 21, [1969] 3 All ER 1230 , [1970] 134 JP 3
Also cited as: [2020] 1 Cr App R (S) 41