Attorney General's Reference No 82 of 2004

THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient. We grant leave.

The offender is 23 years of age, having been born in September 1981. He was indicted with the murder of his six week old daughter, Leah. On 5th May 2004 he pleaded guilty to manslaughter. At the plea and directions hearing, on 7th November 2003, he had pleaded not guilty but, a few days before 5th May, he indicated to the prosecution a willingness to plead guilty. The trial had been fixed for 4th May. He was sentenced by Morland J at Liverpool Crown Court, on 27th May, to 3 years' imprisonment.

The facts were these. The baby was born on 15th November 2002. Her mother, who was aged 16, and her father, the offender, had started living together in Bolton at an address close to the homes of both families. The relationship between the offender and Leah's mother was strained. Some of that was due to the mother's perception that the offender did not take his responsibilities for the baby seriously. The offender had, on occasions, in temper, damaged furniture in the course of arguments with the baby's mother. Generally the baby was healthy, though she did develop some feeding difficulties from mid-December, which continued over the next few days and nights.

On 22nd December Leah was bathed twice by her mother, once in the morning and again in the evening, and on neither of those occasions were there any marks on the child. There had, during that day, been an argument during the afternoon between the offender and the baby's mother and, in consequence, they had left a family party separately. By 9.30 in the evening they were back together where they lived. After bathing the baby for the second time the mother noticed that she was not feeding or settling well. Arguments between the parents continued. The offender left the house and came back again at about 10.15 and left again after an argument had flared up again. He returned once more. During the next few hours the baby was unsettled and arguments between her parents continued, though both made efforts to calm the baby, with little success.

At about 3.00 am both parents went to bed with the baby in the same bedroom in a Moses basket. Still she did not settle. At about 4 o'clock the offender took her downstairs in the Moses basket, leaving the mother asleep. At about 7.20 in the morning he re-appeared in the bedroom and awakened the mother saying that the baby was not sleeping properly. It was apparent when the mother held the baby that she was floppy and cold and her eyes were in a fixed gaze. She also had some marks and bleeding around the nose. She asked the offender how these had been caused and he said it had been done in her crib. He also said that the baby had been in the condition she then was for about half-an-hour. The baby was taken to the home of the mother's mother and an ambulance was called.

The police were informed because, at the hospital, non-accidental injury was suspected. A brain scan showed that there was swelling and bleeding which was life threatening. But the only external injuries were those to either side of the nose, to which we have referred, and some bruising of the arms consistent with gripping. The offender said that he might have banged the baby's head on a chair or on a door handle or on the bannister of the stairs. He became distressed. On Christmas Day the life support machine was switched off and the baby died shortly afterwards. The offender's relationship with the baby's mother ended at that time.

The cause of death, following post mortem, was given as a head injury consistent with either severe trauma by shaking or impact of the head against a soft surface. The extent of the bleeding to the eyes indicated a severe degree of inflicted force. There were also injuries to the sides of the scalp consistent with prodding or squeezing and the injuries to the nose were consistent with gripping the nostrils.

The offender was arrested on 28th December. He described the baby as becoming unsettled and unwell on 17th December, a day on which she had been seen by a doctor. He denied ever losing his temper with the baby. During the night of 22nd/23rd December he had taken the baby downstairs to allow the mother to sleep. He had stayed awake thereafter, attending the baby three times between then and about 7.30. It was only on the last occasion that he noticed signs of breathing problems. He denied saying that the baby had banged her head. He said that she had not banged her head, but then he said that he might have accidentally banged her head but had not in fact done so.

The offender was interviewed again in August 2003 and charged with murder. As we have said, he pleaded not guilty at the plea and directions hearing. The basis of the plea of guilty to manslaughter, when it was accepted by the prosecution, was that he had shaken the child severely, having lost his temper when she would not settle.

The offender has no relevant previous convictions. A pre-sentence report upon him referred to him having been very tired and needing sleep at the time when he lost his temper and severely shook the baby. The report also indicated an openness on his part in dealing with the offence and the showing of emotion, and he seemed to be clearly disturbed by what had happened and to bitterly regret what he had done. The author of that report concluded that the offender lacked sufficient parenting skills and knowledge to equip him to handle a very small baby at a time when he was at a low ebb. The risk of him committing any similar offence was assessed as low.

There was a witness called on behalf of the offender, a Mrs Davis, who spoke of the offender's generally caring attitude to children and of his having been severely affected by the death of the baby.

On behalf of the Attorney-General, Mr Ellison draws attention to two aggravating features. First, the failure by the offender to control his temper and using serious violence to the baby on the occasion causing her death and, secondly, the considerable distress caused to other members of the baby's family by his failure to admit what he had done for a period of some 17 months when he plead shortly before trial.

Mr Ellison draws attention to four mitigating features: the plea of guilty, albeit at a late stage; the absence of previous convictions; the remorse demonstrated by and the generally caring behaviour of the offender towards children, and finally, there was violence used to the baby by the offender on only the one occasion which caused her death, he having acted after a sleepless night.

The submission which is made by Mr Ellison is that a sentence of 3 years is unduly lenient in failing to reflect the appropriate level of culpability of the offender and the distress caused by the offence, and the need to provided adequate protection to infants through the imposition of deterrent sentences.

On behalf of the offender, Mr Lane QC submits that the sentence passed by the learned judge was not unduly lenient. He draws attention to the well-known observations of Lord Lane CJ in Attorney-General's Reference No 4 of 1989 11 Cr App R(S) 517, at page 521 as to the principles when considering whether a sentence is unduly lenient. Mr Lane submits that the sentence imposed by the learned judge was within the appropriate range indicated by the authorities, in particular, by reference to the judgment of Roch LJ in the case of R v Yates [2001] 1 Cr App R(S) 428, when the range was identified as being between 2 and 5 years. Mr Lane submits that the learned judge, who was a highly experienced judge, directed himself as to those matters which were relevant and as to those matters which were irrelevant. In both respects he directed himself correctly.

Mr Lane stresses the guilty plea, which avoided a trial of several weeks and spared the mother from cross-examination. Mr Lane stresses that the offender is, even now, only 23 years of age and, for relevant purposes, is of good character. He stresses that the incident was an isolated one, there having been no previous occasion when this generally caring parent had used violence towards this baby. Mr Lane stresses the lack of sleep which was the precursor to the offender acting as he did. Mr Lane also stresses the deep remorse of the offender and draws attention to a number of other decisions of this Court, including R v Brannan 16 Cr App R(S) 766, Pigott [1999] 1 Cr App R(S) 392, Webb [2001] 1 Cr App R(S) 524 and Staynor [1996] 1 Cr App R(S) 376. His concluding submission is that if, contrary to his primary submission, the Court takes the view that the sentence passed is unduly lenient, it is nonetheless one with which, in the exercise of its discretion, this Court should not interfere, having regard, in particular, to how well the offender is doing in prison, as indicated by the recent prison report before the Court: this speaks of him delivering a high standard of work, requiring minimum supervision and making constructive use of custody. He has also acquired a number of certificates, which demonstrate his constructive use of time in prison. All of these matters we take into account.

As it seems to us, the sentence of 3 years passed by the learned judge was a lenient sentence. We would have expected, taking into account all the circumstances to which we have referred, a sentence in the court below of the order of three-and-a-half to 4 years' imprisonment. We entertain some doubt as to whether, in those circumstances, the sentence passed can properly be characterised as unduly lenient. Even if it can be so categorised, in our judgment, it is not a sentence with which, in the exercise of its discretion, this Court should interfere. We say that, in part, because of the progress which the offender is making in prison, but also because of the double jeopardy inherent in the second sentencing process of this offender on an Attorney-General's Reference: this would necessarily involve this Court in discounting the sentence appropriate in the court below in deciding what is appropriate in this Court. Accordingly, for the reasons which we have sought to give, we do not interfere with the sentence passed by the learned judge.