R v Dawid Szczerbacz

This is an appeal against sentence which raises one short point concerning reductions in sentence for a guilty plea entered after the start of the trial.

The appellant is Dawid Szczerbacz. On 28 November 2024 he was sentenced to an extended sentence of 13 years, comprising a custodial element of 8 years and an extended licence period of 5 years for an offence of wounding with intent to cause grievous bodily harm.

The facts can be stated briefly. The victim was Patric Szabo, who was living with long-standing friends, Ms Monica Wilk and her partner. Mr Szabo had been living with them for about six weeks following the ending of his marriage. Ms Wilk's partner also knew the appellant. When the appellant became homeless early in September 2023, Ms Wilk and her partner allowed him to stay at their home, sleeping on the sofa in the living room.

During the days up to the stabbing, there were tensions between the appellant and Mr Szabo. On one occasion, the appellant accused Mr Szabo of using an app on his (the appellant's) phone. That led to an argument and Mr Szabo walked away.

On 23 September 2023 the appellant accused Mr Szabo of talking about him. When Mr Szabo said he was being crazy, the appellant's response was to threaten to stab him.On the evening of the next day (24 September 2023) Ms Wilk discovered that a knife was missing from the kitchen. She went into the living room and she saw the appellant holding the knife. He gave it back to her. At dinner, the appellant again accused Mr Szabo of using his phone. After dinner, Mr Szabo went out to see a friend. Ms Wilk found another knife, this time in the appellant's pocket.

Mr Szabo arrived back at the house just after midnight. The front door was locked so he knocked on the door. The appellant opened it. He had a kitchen knife in his hand. Without warning, the appellant stabbed Mr Szabo between the neck and the collarbone. Mr Szabo thankfully managed to get away and he went to the home of members of his former wife's family. They were able to call the emergency services, who took Mr Szabo to hospital. He was luckily able to have immediate treatment and that prevented his lung from collapsing.

Ms Wilk had heard something and went down to the living room with her partner who asked the appellant whether he had stabbed Mr Szabo. The appellant denied it. He was however arrested and interviewed by the police. He denied having stabbed Mr Szabo and said that someone else must have attacked him. He was charged with attempted murder and wounding with intent to cause grievous bodily harm.

On 26 February 2024 the appellant served his Defence Statement. He denied having any arguments with Mr Szabo. He denied having threatened to stab him. He denied stabbing Mr Szabo. The Defence Statement also required the attendance at trial of certain witnesses including Mr Szabo and Ms Wilk.

The trial preparation was completed. The police interviews were edited, facts were agreed, applications for special measures for some of the witnesses and to adduce certain evidence had been made. The trial began. The jury were sworn. The order of witnesses showed that Mr Szabo was expected to give evidence on the afternoon of the first day and that Ms Wilk would also give evidence on the first day. In the event, after the jury was sworn, the case was not opened by the barristers and no evidence was taken on that first day of the trial.

On the second day of the trial (29 March 2024) the appellant changed his plea to guilty on the charge of wounding with intent and he was convicted of that offence. No evidence was led on the attempted murder charge and an acquittal was directed.

The sentencing judge carefully considered the pre-sentencing report, a psychiatric report and the appellant's previous antecedents, which related to offences in his native Poland. The judge concluded that the appellant met the statutory test for dangerousness. He imposed, as we have said, an extended sentence, comprising a custodial element of 8 years and an extended licence period of 5 years.

Subject to one matter, there is no challenge to the correctness of that sentence, and it is not necessary therefore to analyse the reasoning of the sentencing judge. The sole ground for appeal is that the judge was wrong in making no reduction for the guilty plea entered on the second day of the trial. In relation to that matter, the sentencing judge said this:

Mr Greenhalgh for the appellant submitted that the sentencing judge erred in not giving any credit and in not making any reduction for the guilty plea. He said that the entering the guilty plea meant that the victim and the witnesses did not in fact have to give evidence and the interpreters who had been hired could be released. The trial was listed for three days and the court could deal with other cases in the time made available. That, he submitted, justified a reduction in sentence.

Section 73 of the Sentencing Act 2020 provides that, when determining the sentence for an offender who has pleaded guilty, the court must take into account the stage in the proceedings at which the offender indicated the intention to plead guilty and all the circumstances. Section 59 of that Act provides that a court must follow guidelines issued by the Sentencing Council unless it is not in the interests of justice to do so.

The Sentencing Council has issued a guideline on Reduction in Sentence for a Guilty Plea. That guideline notes that the key purpose is to encourage those who are going to plead guilty to do so as early in the court process as possible. It notes that:

The position in relation to the guideline was considered in R v Mason [2022] EWCA Crim 1830; [2023] 2 Cr App R (S) 8. There, the accused was charged with a number of serious drug offences. The accused had pleaded not guilty. On the first day of the trial, applications for adjournments was sought, first on medical grounds, and secondly, to enable the investigation of certain evidence. Those applications were refused. The judge was, however, told that there was a potential for resolution of the case and he gave time that morning for discussion. After lunch the judge said the case must proceed. The jury were sworn in and the case was opened and evidence consisting of a video from a body video camera was shown. The next morning (the second day of the trial) the appellant pleaded guilty. The judge imposed a sentence of 16 years' imprisonment. He said that save for count 10, where different considerations applied, "there is no credit that I can allow you for your guilty plea," the trial having started. This court set out the relevant parts of the guideline. It recognised that even at a late stage there is a benefit in a guilty plea for the administration of justice, for witnesses and for the wider public interest. It referred to the sliding scale of reductions set by the guideline. It noted that the court was required to exercise judgment about how to apply the guideline and the court recognised that each case was fact-sensitive. At [24] of its judgment, the Court said this:

The Court in that case referred to the fact that the guilty pleas were entered in the early stages of the trial. The trial had started but nothing substantial by way of evidence had been done and no witnesses had given evidence. The judge was aware that meaningful discussions were taking place. He had said there was a public saving as a result of the guilty plea. The judge, however, had reached the view that he was unable or unwilling to reflect that by a reduction in sentence once the trial had started. Furthermore, the court noted that the judge had given credit for the guilty plea in relation to count 10, but it had then aggregated the sentences but did not alter the sentences so that the benefit of the guilty plea was lost. In all the circumstances the Court in that case considered that a modest reduction of 6 months from 16 years to 15 years and 6 months' imprisonment should have been made.

The Court in R v Ray Carroll [2024] EWCA Crim 779 considered Mason and earlier authorities including R v Ali [2022] EWCA Crim 1884; [2023] 1 Cr. App. R. (S) 52. There, the Court recognised the possibility of some reduction even if the plea was made after the start of the trial. That is reflected in the words of the guideline which recognise that the reduction for a plea after the start of the trial should be reduced from 10% and “even to zero” if the guilty plea was entered during the trial. The Court considered that the sentencing judge should consider the facts to determine whether there should be a reduction of less than 10% or even whether it was a case where no reduction should be given. There, the Court considered that the sentencing judge had erred because he had considered the weight of the evidence as a factor relevant to whether a reduction was appropriate and that is not a relevant factor. In the event in that case the Court considered whether to grant a reduction for the late guilty plea and decided to grant a reduction of 6 months, reducing the sentence from 7 years and 9 months to 7 years and 3 months' imprisonment.

In the present case the judge said that, given the late stage at which the guilty plea was entered, there could be no credit or reduction of the sentence as there might have been had the appellant pleaded guilty at an earlier stage. In the light of the wording of the guideline and the case law to which we have referred, that is not correct as a statement of principle. There was the possibility of some reduction, albeit less — probably considerably less — than 10%. In those circumstances, we have considered whether there is any basis for a reduction in sentence here because of the guilty plea entered on the second day of the trial.

We bear in mind that the case was a short one, listed for three days, and there was no indication until the second day of any possibility of a guilty plea. We recognise that there is limited scope in the circumstances of this case for achieving the benefits normally recognised as flowing from an early guilty plea. There is nothing to suggest the appellant's guilty plea in any way reduced the effect of the crime on the victim. There was some, albeit very little, saving in resources. The investigations into the offence had been completed; preparation for the trial had been completed; and the trial was underway, although it is right to say that no evidence had been called. It was stopped on the morning of the second day and it was only listed for three days. There was therefore some, albeit little, saving of public time or resources. It is correct that the victim and Ms Wilk (one of the witnesses) did not have to testify. They had been expecting to have to testify and to relive the events of 24 September 2023 right up until the morning of the second day. In the event they were saved the ordeal of having to go into the witness box and give their evidence.

In the circumstances there is a benefit in encouraging defendants to admit their guilt. There is scope for some limited reduction in such circumstances, albeit well below 10%. In all the circumstances of this case, given the limited benefits of the trial coming to an end sooner so that no further resources needed to be spent on the trial and given that the witnesses did not have to testify, we would make a modest reduction of about 5% (or 4 months) in the sentence. We allow the appeal to that limited extent. We quash the extended sentence and substitute an extended sentence of 12 years and 8 months, comprising a custodial element of 7 years and 8 months and an extended licence period of 5 years.