Fletcher, R. v

LORD JUSTICE MOSES: This is an appeal against sentence of seven years' imprisonment in respect of what are notoriously difficult and distressing cases. Nothing the sentencing judge, nor this court on appeal, can say will ever measure the impact of the death of a young child on family relations and friends. We have read the statement from the mother of young Michaela who died and, whilst we can never feel the same tragic emotion that she must feel, we can readily appreciate it. But the death of this young child was caused in a remarkably short period by this appellant, whose behaviour prior to the incident in May 2004 could never have been expected.

The appellant had started to live with Michaela's mother, Amanda Richards, in Plymouth in February. Although there had been thought to be some dispute about this, by the time the judge came to sentence it was plain that this appellant had exhibited no feelings or animosity or violence towards the young child he killed. Michaela was one of four young children. The appellant was apparently good towards them and had devoted all of his limited resources towards their upkeep - this was not something Michaela's mother had experienced before.

The occasion of Michaela's death was her birthday. She was only two. The appellant had bought her presents and had taken her on 12th May to Plymouth town centre whilst the rest of the children were at school. He returned at a time that, whilst there was some dispute about it at trial, appears to have been 2.49 in the afternoon. It would take about two to three minutes for him, with Michaela, to walk from the bus stop to home, possibly slightly more. It is clear from computer records that an ambulance was called at 2.52. Thus, the occasion of the killing of Michaela took place in a very short period indeed, probably about two minutes. It appears that this appellant lost his temper and shook her in a way that caused her immediate death. Just after that the appellant came out of the house carrying Michaela in his arms. She was limp, unconscious and having difficulty breathing. When the local residents came to help the ambulance was called at the time we have identified.

Unfortunately, but not unusually in cases of this kind, the appellant was unable to face what he had in fact done and both before and during the trial denied that he was responsible for the injuries which, as the doctor said, must have been the result of shaking with considerable force and were inconsistent with any fall from the bed as had been suggested.

As we have said, the appellant denied that he was responsible and he was charged with murder. At the close of the prosecution case the judge, Owen J, ruled that there was insufficient evidence of a murderous intention. Manslaughter was left to the jury.

We can well understand that, having faced a charge of murder and having had that dismissed only immediately before he was due to give evidence, the appellant felt unable to accept his responsibility at that stage. Thus the issue of manslaughter went before the jury and he was convicted of that offence.

The judge, in his sentencing remarks, accepted that the appellant was very good with the children and their siblings. He pointed out that there was no suggestion of any violence towards the children in the past, nor of animosity.

The judge was faced with a young man of 23, and, as we have said, sentenced him in July 2005 to seven years' imprisonment. The issue is whether that sentence was manifestly excessive.

There were important mitigating features in relation to this case. We have already identified the absence of any animosity or history of previous cruelty, let alone injury, towards the children. There was positive evidence of the appellant's good behaviour in supporting Michaela and the other children. The offence was not premeditated and took place, as we have said, in a very short space of time. This appellant had not been in trouble for offences such as this before. Not only was he only 23 at the time of his trial, he unfortunately suffered from limited intelligence amounting to a borderline learning disability. He had sought immediate help for the child as soon as he had shaken her in a way to cause her death. Against that, it has to be said that this was a very young girl of two who required the protection of the courts. The impact on the family, as we have said, was devastating and will continue to be.

In those circumstances, we have had to consider whether the sentence of seven years was manifestly excessive.

Our attention was drawn to a number of authorities. The authority of greatest assistance is the case of Yates [2001] Cr App R (S) 428. In that case this court identified the range of sentences on a plea of guilty as between two and five years and reduced a sentence of seven years in that case to one of five years. As Mr Evans QC, on behalf of this appellant, has pointed out, that case appears to be slightly worse in some respects since there was no evidence of any remorse, in contrast to this case, and there was evidence of previous incidents of violence towards the victim, but the appellant pleaded guilty. The fact that this appellant did not plead guilty, particularly in the face of a charge of murder, does not indicate that he did not suffer remorse. Moreover, we fully understand how it was difficult for him at so very late a stage once the murder charge had been dismissed, to change the unfortunate approach that he had adopted of denying his responsibility.

We take the view that having regard to the mitigating factors which we have identified, notwithstanding the gravity of this offence, a sentence of seven years was manifestly excessive. Our view is that a sentence of five years' imprisonment would have been appropriate, reducing that sentence therefore by two years. In those circumstances we shall allow the appeal and substitute the sentence of seven years for one of five years' imprisonment.