KC, R. v

A defendant may seek to withdraw a guilty plea at any time before sentence. The discretion exists even for an unequivocal plea, but is exercised sparingly and judicially. An erroneous denial of an opportunity to apply does not make a conviction unsafe where the plea was clear, informed and voluntary, and an application would properly have failed.

For the Sexual Offences Definitive Guidelines, a sustained incident requires sufficient temporal and factual continuity to constitute one episode. Separate assaults over years do not become one incident merely through a continuing relationship of trust. Category 2 harm may nevertheless arise from a child’s particular vulnerability because of personal circumstances, assessed flexibly and without double counting.

The appellant pleaded guilty at Preston Crown Court to three offences of assault of a child under 13 by penetration, contrary to section 6 of the Sexual Offences Act 2003, and one offence of inciting a family member to engage in sexual activity, contrary to section 26. The offences against the complainant when aged seven or eight occurred on three occasions over about two years. The later incitement consisted of sexual Facebook messages.

After the jury had been directed to return guilty verdicts, but before sentence, the appellant indicated that he wished to withdraw his pleas. His advisers and the judge wrongly considered that no such application was available. He received concurrent extended sentences of 11 years and six months for the penetration offences and a consecutive 18-month sentence for incitement.

He appealed conviction and sentence. The principal issues were whether the error concerning withdrawal of the pleas rendered the convictions unsafe, and whether the penetration offending properly fell within Category 2 rather than Category 3 harm under the Sexual Offences Definitive Guidelines.

1. Appeal dismissed. A guilty plea may be withdrawn before sentence, so counsel and the judge were wrong to conclude that the appellant could not apply to do so. Applying section 2(1)(a) of the Criminal Appeal Act 1968, however, the error did not render the convictions unsafe.

   The plea was clear, unequivocal and informed. The appellant had experienced representation, time to consider his position, and had made detailed admissions to counsel and later to the author of the pre-sentence report. There was no evidence that drugs or absent medication impaired his understanding. No judge could properly have permitted withdrawal of the plea, and the conviction ground therefore failed.

2. The sentencing judge erred in treating the three penetration offences as one sustained incident. An incident may be a single episode containing several offences, as in R v Mamaliga & Mamaliga [2018] EWCA Crim 515. But assaults separated over years were not one incident merely because they occurred within the same relationship of trust and household.

   In the sexual-offending context, a sustained incident requires sufficient continuity and linkage. Its analogy with prolonged detention supports an episode having an overall beginning and end. The court declined to set a fixed minimum duration and did not treat R v B [2015] EWCA Crim 319 as a useful factual comparator.

3. The sentence nevertheless remained lawful. The Guidelines are not to be construed as a statute and allow elasticity. The complainant’s age, familial relationship with the appellant, abuse of trust, offending in her home when her mother was absent, exposure to pornography, grooming, and repeated abusive conduct made her particularly vulnerable because of her personal circumstances. Those matters placed the offending within Category 2 harm even allowing for the risk of double counting.

4. The consecutive 18-month sentence under section 26 was also lawful. The appellant intended penetrative sexual activity, groomed and targeted a vulnerable child, and had created vulnerability through earlier abuse. The judge properly treated it separately, reduced its practical weight for totality, and imposed a sentence within the proper discretion.

5. Leave to advance the late further grounds was refused. The evidence and the appellant’s admissions supported the penetration charges; the suggested substitution of section 7 charges lacked merit.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and sentence: [2019] EWCA Crim 1632.

• Preston Crown Court: Following guilty pleas and directed guilty verdicts, imposed concurrent extended sentences for the section 6 offences and a consecutive sentence for the section 26 offence.