Imprisonment - Length of sentence

R v H: Court of Appeal, Criminal Division (Lord Justice Elias, Mr Justice Maddison, Mr Justice Burnett): 27 September 2011

The defendant, who was 23 years old, had a daughter who was less than two years old (the victim). The defendant rang the emergency services and requested an ambulance which was subsequently dispatched. The ambulance took the victim to hospital and a burn mark could be seen on the victim's left foot, which was discovered to have been caused by a hot kettle being held against the foot for several seconds.

Further examination revealed several small bruises on the victim's body, inter alia, under her left eye and behind her ear lobe. Large bruises were also discovered on her left buttock and thigh. When asked how the bruises had been sustained by the victim, the defendant said that she had left the victim in the care of her boyfriend, who was not the victim's father. She had gone out for around 15 minutes. When she returned, she noticed that the victim was walking with a limp. She asked her boyfriend what had happened and he said that he did not know.

The defendant said that she then rang for an ambulance. In addition, she did not know how the bruises had been sustained, but had noticed them four days earlier. The bruises to the buttock and thigh were discovered to be too extensive to have been caused accidentally and the victim was subsequently placed in the care of the local authority. The defendant pleaded guilty to cruelty to a child on a written basis. She stated that, from the beginning of her relationship with her boyfriend, he had stayed at her flat and that he was physically and verbally abusive towards her.

She accepted that leaving the victim in her boyfriend's care was exposing her in a manner likely to cause unnecessary suffering or injury to her health. She did not accept that she herself had caused the injuries to the victim, or that she had been present when they were sustained. The defendant stated that upon returning home, she had first contacted her mother and had then called the emergency services. She accepted that she had not sought appropriate medical attention for the bruises since discovering them beforehand.

The defendant had previous convictions for violence and dishonesty and had been cautioned on three occasions for offences of violence. A psychiatric report prepared in relation to the defendant stated that she was suffering from an anti-social personality disorder, that she led a chronically unstable life and that she needed to address her abuse of alcohol. The pre-sentence report on the defendant stated, inter alia: (i) that she was too young and immature to cope with motherhood; (ii) that her choice of partner was poor; (iii) that she had never worked; (iv) that she had a chaotic lifestyle and that she abused alcohol; and (v) that the risk of her causing harm to her children or the public was medium.

The defendant was subsequently sentenced to two years' imprisonment. The sentencing judge stated that the defendant had been given full credit for her early guilty plea. Furthermore, he stated that the defendant had been aware that her daughter had sustained injuries in the period leading up to her hospitalisation and that she had done nothing.

The defendant had not called the emergency services immediately and had thought of herself first, by calling her mother for advice. The instant case fell into the sentencing guideline category for which a starting point of three years' custody was suggested.

The sentencing judge recognised that the defendant had started to deal with her drink problem, but that the offence was so serious that two years' custody was appropriate. The defendant appealed against sentence.

She submitted that the sentence was manifestly excessive on the grounds, inter alia: (i) that the sentence should have been suspended; and, or in the alternative, (ii) that the custodial sentence imposed should have been significantly shorter in order to recognise various relevant factors, which were, inter alia: (i) the basis of the defendant's plea of guilty; (ii) the level of culpability of the defendant and, in particular, the fact that the defendant did not cause the injuries to the victim herself; (iii) the impact that the sentence would have on the defendant and the victim; and (iv) the mitigation available to the defendant, which included her immaturity.

He further submitted that, when considering the relevant sentencing guidelines, the judge had wrongly identified the category of seriousness of the offence by placing the case in the category of seriousness for which a starting point of three years' custody was applicable. The offence should have been placed in the least serious of the three categories set out in the relevant sentencing guidelines applicable to the offence of cruelty to a child. Consideration was given to the relevant sentencing guidelines. The appeal would be allowed.

The case had been correctly placed in the category of seriousness for which a starting point of three years' custody was identified. Taking the injuries of the victim cumulatively, they went beyond actual bodily harm and amounted to grievous bodily harm. Moreover, it was a case where a child had suffered bruises to different parts of the head and body. The defendant had to have known that the victim was being physically abused and she had done nothing about it. The defendant had a bad record of committing violent offences and all of the features of the case made an immediate custodial sentence inevitable.

However, although the category of seriousness had been correctly identified, the instant case fell towards the lower end of the sentencing range. The defendant's age, immaturity and abusive relationship amounted to significant mitigating factors. The defendant had lost her children and had been making significant progress in prison, as evidenced by the numerous courses that she had undertaken. The length of the sentence was accordingly manifestly excessive.

The sentence of two years' imprisonment would be quashed and a sentence of 18 months' imprisonment would be imposed.

Franco Tizzano (assigned by the Registrar of Criminal Appeals) for the defendant.