Attorney General Reference No 80 of 2004

LORD JUSTICE ROSE: The Attorney General seeks the leave of the court under section 36 of the Criminal Justice Act 1988 to refer a sentence which is said to be unduly lenient. We grant leave.

The offender, Franklin Mokaki, is 33 years of age, having been born in Kenya in December 1970. On 17 May 2004, she pleaded guilty at Snaresbrook Crown Court to two counts of child cruelty, contrary to section 1(1) of the Children and Young Person's Act 1933. One of those counts alleged cruelty on the basis of assaults over a period of about a month in the Autumn of 2003, and the other related to abandonment of the child, the victim of the assaults, on 17 November 2003.

HHJ Medawar QC made the offender the subject of a conditional discharge for a period of two years in relation to each of the counts. The victim was the offender's 11 year-old son, whom she had struck on a number of occasions, and on a cold day on 17 November had, it was said, abandoned him in a supermarket when he was wet and inadequately dressed. He had a number of injuries to his body when he was examined. He was examined by several doctors, not all of whom were unanimous in relation to the injuries and their possible age. The offender pleaded guilty on the day which had been fixed for trial.

As we have said, she came to the United Kingdom from Kenya some nine years ago. She left behind her then only child, Aden, who had been born out of wedlock in November 1991. She left him in the care of her mother and then her aunt. He came to the United Kingdom in October 2003, by which time he was almost 12. By this time, the offender was living with her husband, whom she had met in London, and their two children, Glody, who was born in May 1996, and Chloe, who was born in November 2001.

The punishments which were inflicted upon the boy by the offender and which gave rise to visible injuries in the form of cuts, bruises, grazes and swellings, had, according to the written basis of plea which was before the sentencing judge, been caused by a rolling pin and a plastic coat hanger wielded by the offender on various parts of the boy's body. 17 November was the day after the boy's 12th birthday and, according to him, his mother took him to Sainsbury's Supermarket in Chingford. He was found there at about half past noon by staff who had seen him wandering about for some 40 minutes. It was raining, his clothing was soaking wet, he was bewildered, shaking and distressed. He said that his mother had told him to wait there for her.

He was taken to hospital and was taken into care. The injuries which he had included: cuts on the inside of both lips and bruising on his arms, legs and buttocks (all of which were recent). He also had a swollen left hand, which he said was due to having been hit by the rolling pin.

The offender went to Walthamstow Police Station with her husband and the other children on the evening of 17 November at about 10 o'clock, ostensibly to report that her son was missing. She claimed, which was clearly untrue, that her son had gone out for a walk at 3 o'clock that afternoon and failed to return. We say that was clearly untrue because he had already been found in Sainsbury's a substantial period of time before 3 o'clock in the afternoon. The offender was arrested and interviewed. She made no comment. She initially pleaded not guilty at a plea and directions hearing.

On 17 May 2004, the boy attended court to give evidence. At that stage, the offender's counsel having indicated that the defence would be lawful chastisement and a denial of abandonment, the learned judge indicated that he would withdraw a defence of lawful chastisement from the jury. He also indicated that, if there were a conviction after trial, custody would be inevitable.

The indictment was put again and the offender pleaded guilty to the two counts. As we have said, there was a written basis for that plea and, although the learned judge did not specifically say that he was dealing with the matter on that written basis, bearing in mind that neither he nor anyone else suggested that a Newton hearing should be held, it is clear that he could only properly have proceeded, as Miss Whitehouse for the Attorney General accepts, on the basis of the written plea. That was to the effect that she had hit the boy with a plastic coat hanger between three and five times on the back of his thighs on occasions when he had opened a door for the fourth time, when he had broken the washing machine door, when he placed a wet jumper on his bed and let it drip onto one of the younger children's beds below, and on an occasion when he had written inappropriately on his books. All of those matters were encompassed within count 1.

It was also admitted that, on 17 November, the injuries, in particular the swollen hand caused that day, were due to the use of the rolling pin on the boy's upper body and a plastic coat hanger on the lower body. That too was embraced within count 1.

As to count 2, the plea was on the basis that the offender had permitted the boy to leave the flat following the incidents of violence on that day, and had failed to raise the alarm in relation to his absence until her husband came home from work.

On behalf of the Attorney General, Miss Whitehouse draws attention to the aggravating features to be found in the vulnerability of this child, who had only recently come to this country and had been subjected to abuse on a considerable number of occasions causing injury. There had also been a degree of psychological bullying of the boy. Miss Whitehouse draws attention to the mitigation to be found in the offender's previous good character and the pleas of guilty, albeit that they were entered late. She submits that a non-custodial disposal of this case, in the light of all the authorities, was unduly lenient in failing adequately to reflect the gravity of the offences and public concern about such offences.

On behalf of the offender, Miss Deignan, who appeared in the court below, stresses the significance of the written basis of the plea before the court. She points out that there was, by reason of civil proceedings in relation to the children, a report which she was not permitted to see, but the terms of which she and the judge knew, indicating the absence of any psychiatric condition so far as the offender is concerned.

Miss Deignan submits that the learned judge's sentence was not unduly lenient and he proceeded on the basis of the offender's admissions of guilt. At the time of sentencing, all three children were in foster care, the oldest child being placed separately from the two younger children. Miss Deignan pointed out that, at the time the learned judge passed sentence, the offender and her husband were in daily contact with the two younger children. A risk assessment had been taken in connection with the public law proceedings in relation to the children, and at that time, the risk assessment recommended work towards rehabilitating the two younger children with their parents.

Miss Deignan also draws this court's attention to a letter from the solicitors acting for the offender in the public law proceedings, dated 5 July 2004. The position is that an assessment with a view to the two younger children being reunited with their parents by the beginning of October this year is proceeding well. At the moment both parents are seeing the two younger children for an hour and a half on each of five days per week. The care plan remains for the two younger children to be reunited with their parents, although care outside the family is anticipated in relation to the victim of these offences.

The position is not made easier for anyone, including the Attorney General as well as the court, by the fact that no final decision has, as yet, been made in relation to the future care of the children. It was for this reason that, at the outset of today's proceedings, Miss Whitehouse sought an adjournment pending a further report which might be obtainable by next week. Miss Whitehouse accepted, however, that there was no reason to doubt, notwithstanding the source of the information in the solicitor's letter of 5 July, its accuracy.

The submission which Miss Deignan makes is that, even if the court takes the view that the sentence passed in the court below is unduly lenient, it would not be appropriate in the exercise of the court's discretion to interfere with it. In our judgment, the conditional discharge imposed by the learned judge on the material available to him was an unduly lenient sentence. This was clearly a difficult sentencing exercise, but we have no doubt that the offences called for a custodial term.

We would have anticipated in the court below a sentence of the order of 18 months' imprisonment in relation to these two offences, notwithstanding the basis of plea, which we have earlier set out. That said, this court, in addressing the present application, has to take into account double jeopardy, which is a feature of all Attorney General's References, that is to say the offender is being sentenced a second time, and would also, if imposing a custodial sentence, have to take into account that the offender had previously been at liberty. The question which, as it seems to us, is accordingly crucially posed in this case is whether or not this court, in the exercise of the discretion which it has under the statute, should now pass a short sentence of imprisonment.

In that regard, it seems to us that the interests of the children and of the public do not require that we should take that course. It is of course impossible to say with certainty what the outcome so far as the two younger children are concerned will be. But the high probability from the information before this court, provided that matters proceed as they are presently proceeding in relation to the frequent contact between the parents and the children, and the behaviour of the offender particularly in relation to the younger children, is that, by the beginning of October, those two young children will be reunited with their parents. That being so, it does not seem to us that that hopeful prospect should be disrupted at this stage by incarcerating the offender. We do not believe that the public interest so requires.

In those circumstances, although the sentence passed was an unduly lenient one, in the exercise of our discretion we decline to interfere with it.