RD, R v

Mr Justice Beatson: On 25th June 2004 in the Crown Court at Kingston upon Hull the appellant, now 35, pleaded guilty to count 1 (assault occasioning actual bodily harm) and count 2 (causing grievous bodily harm with intent). On 13th August 2004 His Honour Judge Keen QC in the same Crown Court sentenced him to six years' imprisonment on count 2 and two years' imprisonment on count 1, the latter to be served consecutively to the sentence on count 2. He appeals against sentence by leave of the single judge.

The appellant lived with his then partner at her home in Hull from 2002. They had two children: a daughter aged about 12 months at the time of the offences, and the victim of these offences, a boy whom we will call G, who was aged two to three months at the time of the offences. The relationship between the appellant and his partner became strained after G was born. There was a certain amount of violence between the partners.

On 17th March 2004 the appellant's partner began attending weekly aerobics classes with her sister. This was probably the day on which the first offence, count 1, took place, although it was not detected until after the incident giving rise to count 2. On 17th March the appellant's partner was out for just under an hour and a half. When she returned, she found G red in the face and screaming with two little marks under his nose. The appellant said the redness was a rash caused by body spray on the appellant's jumper against which he had been cuddling the baby. His partner was suspicious, but accepted his assurances, particularly as he became sullen when questioned. She had specifically warned the appellant that it is very dangerous to shake a baby. This was after an incident when the appellant appeared to shake the baby, not violently but inappropriately, after a bath.

On 2nd April the appellant and his partner had attended a meeting. At about 8.00 p.m. his partner went out to visit a cousin who lived round the corner. She had previously settled G down so he was asleep. His sister was also asleep. She arranged with the appellant, who was going to look after the children, that he should ring her if G woke so that she could return and feed him.

At about 10.00 p.m. the appellant telephoned. He sounded panicky. He said that the baby was unwell and he asked his partner to come home. She and her cousin's husband returned and found the appellant at the front door holding G. The baby was gasping for breath and appeared to be floppy. His eyes were rolling back. An ambulance was called. At hospital it was noticed that the baby had a red 4 cm fresh bruise on the left side of his forehead. The appellant was unable to explain how that had come about. He said to his partner at about that time that G had woken up and twice been sick. G's consciousness deteriorated and he suffered a fit and had a bulging anterior fontanelle, indicating either bleeding of the brain or meningitis. He was pale, floppy and cold and had to be ventilated and sedated. Scans revealed a fresh fracture to the right hand side parietal area of the skull and with associated subdural haemorrhage of the brain on the right side. A paediatric consultant considered these to be severe life threatening head trauma and the baby was admitted to intensive care.

During his treatment older injuries were detected. There was some degree of damage to a different part of the brain. It was at that stage impossible to assess in a child of G's age how serious this was. There were also 14 rib fractures on both sides of the body which showed signs of healing and clearly related to an earlier incident. The injuries were consistent with shaking or throwing to the ground and were clearly non-accidental.

The appellant was arrested on 5th April. Initially in interview he repeated his story about G being sick as he was trying to change the baby's nappy. When pressed to say whether anything else happened, the appellant said he tripped over a sofa while carrying G and had dropped him. The story changed again as the interview progressed. But three days later the appellant was interviewed again and, after repeating the account of accidentally dropping the baby and being challenged, he admitted that he had been lying. He accepted that on the second occasion he had shaken G and had hit him three or four times with his knuckles, in effect punching him to the back of the head. He thought he must also have punched G to the front of the head. He had done this, he said, to stop G crying and to try to quieten him down. He said that at the time he had been depressed.

When asked about the earlier incident on 17th March,the appellant admitted that while holding him in the crook of his arm and changing G's nappy he had squeezed him around the ribs. He conceded that to fracture all of those ribs he must have squeezed G very hard. He also admitted that on the earlier occasion he had shaken the baby before squeezing him. He described the shaking as quite hard and lasting for a couple of minutes. It caused the baby's head to flop about. This, we observe, explains the degree of injury from the earlier incident.

The appellant also made admissions as to what had occurred on 2nd April. He stated that the baby woke up crying at about 9.00 p.m. and he wanted him to stop crying. It was for that reason that he started violently shaking the baby. The shaking lasted about two minutes. He stated that the baby's head was floppy. He then sat down and placed G across his knee face down and started repeatedly to punch him on the rear of his skull. He then turned the baby round and punched him on his forehead. Following this assault, he stated that G was limp in his arms. He thought he was dead. Because he thought the baby was dead, he then from a standing position deliberately dropped G on the floor.

At the time of the trial because of G's age it was difficult to say what the prognosis was. After a period in intensive care and time in a high dependency unit he was discharged into the care of his mother who had separated from the appellant. He is prescribed anti-epileptic medication because of the fit he suffered in hospital. The consultant believed that time that mild to moderate disability was possible. There was concern for his head control and his eyesight. At that stage it was stated that it would be a long time before the effect of the assaults could be assessed.

We interpose that this Court has before it a report by Dr Roger Massey, a consultant paediatrician, dated 3rd December 2004. Dr Massey first saw G on 19th November following his most recent admission to hospital because of increased seizures on 15th November. Dr Massey states that in his view G sustained severe damage to his brain as a result of the injuries he received. The injuries resulted in an acquired microcephaly, a failure of the brain to grow, which has a very limited prognosis as far as future development is concerned. G has also developed infantile spasms. The chance of normal development in such cases is very slow and the chance of subsequent epilepsy difficult to handle is very high. Dr Massey's conclusion is that he believes that G will remain a very dependent profoundly handicapped young man who will never be able to live an independent life.

The appellant has no previous convictions. A pre-sentence report indicated that, although he only took partial responsibility for the offences, he did appear to show genuine remorse. It was acknowledged that a custodial sentence was inevitable. The report writer stated that it was unlikely that the appellant would offend in this way again. The offence was committed in a uniquely specific set of circumstances. He needed help with his mental state. Before he had contact with his or any other children social services would want to conduct an assessment.

There was also a report before the sentencing judge from a consultant forensic psychiatrist. This stated that while the appellant did not suffer from a mental illness, he did not have a strong personality and could be dominated by somebody with a stronger personality. The report stated it was unlikely he would re-offend again unless once again he became involved in a dysfunctional relationship.

In his sentencing remarks the learned judge stated that the appellant felt remorse for what he had done, not only for the child but also for the disgrace he had brought on himself. The sentence was reduced because of his contrition and his early plea of guilty, but it still had to be a harsh one. He had assaulted his baby on two occasions. The first occasion should have been a warning to him as to what he was likely to do. He had also received a verbal warning from his partner, but this had no effect on him. The second attack was more serious. It was not true, as the appellant had said, that he had done it to stop the child crying. He had done it to inflict as much harm as he possibly could. He put the child's life at risk and only the skill of the doctors who had the care of the baby prevented G from dying. The learned judge also referred to the difficult prognosis at that stage.

Mr Ferm, on behalf of the appellant, submits that the total sentence of eight years is too long, assuming, as it does, a starting point in the order of 12 years on a fight. He submits that insufficient account was taken of the mitigation. He also submits that, having regard to the principle of totality, the sentences should have been concurrent and not consecutive.

It appears to us that, since he accepted in his advice that the appropriate sentence is one of six years' imprisonment, at the core of his appeal is his argument based on the principle of totality. We note that the single judge observed that it is hard to argue that a sentence of six years would be manifestly excessive, but it may be arguable that running the two sentences consecutively, although not wrong in principle, was not necessary in the circumstances bearing in mind the question of totality.

Mr Ferm's advice stated that there were no similar or parallel cases to the present in the reported cases on sentencing for section 18 offences. He took up the suggestion of the single judge that greater help might be obtainable from manslaughter cases and we were referred to a number of case. In these cases this Court either imposed or upheld sentences of between three and five years for the manslaughter of a child. Mr Ferm, while recognising that the admitted existence of a specific intent on the part of a person falling to be sentenced for an offence under section 18 means that the manslaughter cases are not strictly comparable, submitted that the decisions contained in his skeleton argument do not justify a sentence in total of as long as eight years.

The factual line between cases such as the present and the facts of manslaughter children cases can be very fine. As the sentencing judge observed, in the present case it was only because of the dedicated skill of the doctors who had care of G that he did not die as a result of the injuries inflicted on him by the appellant. Had G died, the appellant would have faced a charge of murder, and, in view of the finding of the jury, would probably have been convicted.

However, we observe that whilst some guidance might be gained from sentencing in manslaughter cases, the fact that the range of sentences for the manslaughter of a small child is a wide one, and need not necessarily involve the specific intent which exists in the section 18 offence, means that care must be taken. On this see Attorney General's Reference No 34 of 2000 [2001] 1 Cr App R(S) 359, in which, in the context of a reference concerning a sentence under section 18, this Court referred to the relevance of sentencing in cases of the manslaughter of a child. We shall return to this decision later in this judgment.

Apart from the matter of specific intent, with the exception of Webb [2001] 1 Cr App R(S) 524, the cases relied upon by Mr Ferm all concerned an isolated incident leading to the death of a baby or young child. Two of them were cases in which the responsibility of the appellants were significantly diminished. They are of limited assistance in a case such as the present where there is more than a single isolated incident of violence. In such a case, if one were to have regard to the manslaughter decisions, the decisions of this Court in Thomas (1986) 8 Cr App R(S) 75 and Askir Ali (1988) 10 Cr App R(S) 59, where, following a plea, sentences of seven and eight years respectively were upheld, are of more relevance.

We return, however, to the Attorney General's Reference, because that concerned non-fatal injuries on a child inflicted with intent to cause grievous bodily harm. In that case this Court reviewed a number of earlier decisions. The case concerned a sentence of two and a half years' imprisonment following a trial for causing grievous bodily harm with intent to the offender's five month old baby. The injuries were discovered by the baby's mother when she came back from her evening job. A doctor was called. In hospital the child was found to have sustained severe and irremedial brain injury. The sentencing judge treated the offence as an isolated loss of control.

This Court, after noting the range of sentences in manslaughter cases and the fact that there are differences, in particular the specific intent in a section 18 case to cause at least really serious harm, concluded that the sentence was unduly lenient. In its judgment delivered by Rose LJ this Court held that the appropriate sentence for an isolated incident involving a baby, giving rise to a section 18 offence, by a person of good character was of the order of four to five years. As we have noted, however, the present case was not one of a single isolated incident of violence. The decisions in Thomas and Askir Ali, to which we have referred, show that when there is repeated ill-treatment a significantly increased sentence will follow.

The appellant in the present case was not an immature person, but a man with a bad temper. The violence on 2nd April was, moreover, sustained. The appellant had not only violently shaken the baby for about two minutes, but had punched him to the back of his head three or four times with his knuckles and punched him on the forehead, possibly three or four times, and then deliberately dropped the baby on the floor. On the earlier occasion he had squeezed the baby so hard that 14 ribs had been fractured and some degree of brain damage may have resulted.

We consider that this case, which, as we have stated, very nearly led to a fatality, to a murder charge, is a very bad case indeed. In these circumstances, it was perfectly appropriate for the judge to impose a sentence of eight years on a plea. He had regard to the principle of totality and he apportioned the sentences as between the two counts. This appeal is for these reasons accordingly dismissed.`