Dickinson, R v

MR JUSTICE LLOYD JONES: On 16th March 2009, in the Crown Court at Minshull Street, Manchester, the appellant pleaded guilty to inflicting grievous bodily harm. On 30th April 2009 he was sentenced by Recorder Osbourne to three and a half years' imprisonment. There was a co-accused, to whom I shall refer as "CD", and she pleaded guilty on re-arraignment to cruelty to a child under 16 and was sentenced to 12-months' imprisonment.

The appellant now appeals against sentence by leave of the single judge. The co-accused did make an application for leave to appeal against sentence, that was refused by the single judge and has not been renewed.

The victim was a 5 year old child, "J", who lived with his mother, the co-accused. The appellant was in a relationship with "J"'s mother and moved into her home with his two children. "J" was normally a lively little boy, but in February 2008 his teacher noticed that he had become quiet and subdued. On his return to school after half-term, on 1 March, he complained of stomach ache and was walking stooped over. His teacher noticed facial bruising. On 11 March she noticed marks where scabs had come off his knuckles. His mother said he had been jumping off the bed and climbing on the wardrobe.

Later that day, 11 March, he was found slumped over a table at home. He was taken to hospital where he was found to have extensive bruising to his back, upper chest, hands and legs. There was also tenderness in his abdomen. He was admitted to Manchester Children's Hospital. "J" said his pain in his stomach was due to jumping off the bed and that nobody had hurt him.

On 12 March, a CT scan showed a transection of the pancreas. The opinion of Dr Boon was that this would be associated with significant blunt trauma to the abdomen. In a later report dated 12 February 2009, Dr Boon stated that pain from a pancreatic transection may develop gradually, and may follow on from a single significant episode of blunt abdominal trauma. A forceful punch could cause this injury, and it would not be possible to rule out completely as a mechanism of injury "J" jumping from a height on to a bed and his abdomen being the point of contact that he landed on.

On 4 June 2008, "J", who was by this time living with his aunt and uncle, was interviewed on video. He said that the appellant had punched him in the stomach about ten times on one occasion. The appellant and "J"'s mother were re-arrested. "J"'s mother said in interview that boxing gloves that the police had recovered at her home had been used by the appellant and "J" sparring. When the appellant was interviewed he denied any responsibility for the injuries to "J". When shown the boxing gloves he asked for the interview to be suspended. He then read out a prepared statement. He said that the gloves were his, "J" had asked him to teach him to box because he was being bullied at school. The appellant and "J" played boxing games but he had never used any force and had never hit "J" in the stomach.

The Crown did not accept there had been any bullying at school or that the boxing had been done with minimal force. It maintained that it was clear from the doctor's evidence that this was significant trauma to the abdomen to cause a transection of the pancreas. The appellant denied that he had caused "J"'s injuries.

The appellant indicated on 10 November 2008 that he would plead guilty to a Count under section 20. He did so on 16 March 2009, the Count having been added to the indictment for the purpose. There was a basis of plea, dated 10 November 2008, the date being a significant fact. That indicated that the accused would plead guilty to an offence under section 20, the accused accepting that he had punched "J" to the stomach whilst they were boxing. He did not admit causing grievous bodily harm with intent.

The prosecution confirmed that they would not seek a trial on the issue. It is unfortunate that the basis of plea is so brief and does not provide more information as to the appellant's case as to what occurred. The basis of plea is silent as to the number of punches connecting with the stomach. We are told that "J" had no precise notion of the number. The basis of plea also provides no assistance in relation to the issue of the mechanism of injury. It was suggested on behalf of the appellant that transection could have been caused initially by "J" falling on to his abdomen while jumping on his bed and then exacerbated by a blow or blows from the appellant.

The appellant has previous convictions but no significant previous convictions for violence. A pre-sentence report indicated that the appellant minimised and attempted to justify his behaviour. After lengthy discussion he was able to understand that hitting a child in the stomach was not appropriate. There was a medium to high risk of his re-offending with a medium risk of causing harm, the risk being to children in the context of a domestic setting.

In sentencing the appellant, the judge observed that the appellant had struck a vulnerable 5 year old child in such a way as to cause him psychological and emotional upset, quite apart from the physical injuries. This was in breach of trust, he being the adult male within the home at the time. He did it with sufficient force to rupture his pancreas. The doctor's report was that this was a significant blunt injury trauma. To rupture the pancreas of a child in this way, the blow must have been very hard indeed. The appellant claimed that he had been wearing boxing gloves. The effect of boxing gloves was to cushion the blow. The judge considered that this was not a mitigating factor; it indicated just how hard the punch or punches must have been. The judge indicated that he would give some credit for the guilty plea tendered on 10 November but that was not entered until 16 March 2008. The judge indicated that after a trial the sentence would have been four to four and a half years' imprisonment, the sentence would be one of three and a half years' imprisonment.

Before this court, Miss Myers on behalf of the appellant submits that insufficient credit was given for the guilty plea and that the judge misdirected himself in assessing the level of culpability. The prosecution, by accepting the plea, accepted that there was no intention to inflict the very grave injury that was in fact suffered. It should be said at once that it was wholly inappropriate for the appellant to be engaging in such an activity with any significant degree of force with such a young boy. The nature of the activity is such that at least some harm was likely to be caused.

Having regard to the basis of plea, we propose to treat this as a case in which the appellant did not intend to inflict any injury but was reckless as to the likely consequences of his conduct. The judge appears to have been influenced by the fact that the gloves would have softened the blow or blows inflicted, and that accordingly the blow or blows must have been even more forceful in order to inflict such injury. We see the force of this view but it is also correct, as Miss Myers points out, that a bare fisted attack on a small child would have been a much more serious offence. This defendant was engaging in a wholly inappropriate activity with "J", was reckless as to the likely consequences, and must have used considerable force to inflict this injury.

What then was the appropriate starting point following the trial, taking account both of the consequential injury and the degree of culpability? The maximum penalty under section 20 is one of 5 years' imprisonment. The judge indicated he was taking four to four and a half years as a starting point. We have been referred by Miss Myers, in her written submissions, to a number of authorities including Brown [2001] 2 Cr.App.R(S) 14, Broady [1988] 10 Cr.App.R(S) 495, Schmidt [2009] EWCA Crim 838, and Busby [2001] 1 Cr.App.R(S) 130. Although none of those cases has facts close to the facts of the present case, we consider, in the light of those authorities, and having regard both to the consequences of the conduct and the degree of culpability on the part of the appellant, that the appropriate starting point following a trial in this case would be a sentence in the region of three and a half years and that the sentence imposed was too long to an extent which permits this court to intervene. Furthermore, although the judge said that he would give credit for the plea of guilty, he did not give full credit. On his starting point full credit would have resulted in a considerably lower sentence. In fact, this appellant indicated at the plea and case management hearing on 10 November 2008 that he would plead guilty to the offence under section 20. We consider that he should be given full credit for this indication at this stage, notwithstanding the fact that the plea was formally entered at a later date.

Accordingly, we would quash the sentence and substitute a sentence of two and a half years' imprisonment. To that extent the appeal is allowed.

LORD JUSTICE DYSON: Thank you Miss Myers.

MISS MYERS: Thank you, my lords.

LORD JUSTICE DYSON: There is no indication on the papers that any time was spent on remand. I do not know if Miss Myers can help?

MISS MYERS: I am sorry, my Lord?

LORD JUSTICE DYSON: There is no indication on the papers that any time was spent in custody on remand.

MISS MYERS: A lot of time was spent, my Lord. I have not completed the -- I am sorry, no. No time was spent, I did not know that was what my Lord was asking. No time was spent on remand, he was on unconditional bail throughout.

LORD JUSTICE DYSON: Thank you very much.