R v Dylan Joshua Benjamin Marshall

A sentencing court must sentence an offender only for the offence of conviction or plea. It errs in principle if it selects a sentencing category and imposes sentence on the basis that the offender committed a separate statutory offence which was neither charged nor admitted by plea.

Where there is a sufficient prospect of rehabilitation, a community order with appropriate rehabilitative requirements may properly replace a short or moderate custodial sentence.

The appellant pleaded guilty before Colchester Magistrates’ Court to three offences concerning indecent images of children. He was committed to the Crown Court for sentence under section 14 of the Sentencing Act 2020.

At Chelmsford Crown Court, he received concurrent sentences of 30 months’ immediate imprisonment. Although he had pleaded guilty to making indecent photographs contrary to section 1(1)(a) of the Protection of Children Act 1978, the judge sentenced him using the guideline category for distribution after considering admissions made in the pre-sentence report.

He appealed against sentence. The central issue was whether the judge could sentence him on the footing of a separate offence from that to which he had pleaded guilty.

1. Appeal allowed. The Crown Court had erred in principle by sentencing the appellant on the basis of distribution when he had pleaded guilty to making indecent photographs. The court treated the relevant statutory provisions as creating separate offences. A judge may not impose sentence for a different offence merely because material before the court suggests that it was committed.

2. The court treated R v Canavan [1998] 1 WLR 604 as confirming that sentence must reflect only offences of which the defendant has been convicted or to which he has pleaded guilty. The error affected the starting point and category range selected under the sentencing guideline. The custodial sentences were therefore quashed.

3. The pre-sentence report recommended a 24-month community order with an accredited programme requirement and a rehabilitation activity requirement. The court noted that, where there is a sufficient prospect of rehabilitation, the guideline recognises a community order with a treatment requirement under section 202 of the Criminal Justice Act 2003 as a proper alternative to short or moderate custody. It adopted the recommended rehabilitative requirements.

4. As the appellant had already served nearly four months in custody, no additional punitive requirement was imposed. To reflect the reduced sentence, the notification period and the Sexual Harm Prevention Order were each reduced from ten years to five years, running from conviction on 13 June 2023.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted a community order: [2023] EWCA Crim 1640.

• Crown Court at Chelmsford: On 23 August 2023, imposed concurrent sentences of 30 months’ immediate imprisonment for three counts under the Protection of Children Act 1978.

• Colchester Magistrates’ Court: On 13 June 2023, accepted guilty pleas and committed the appellant to the Crown Court for sentence.