R v Gemma Brogan

This is an appeal against sentence by the appellant, the matter having been brought to this court by way of a reference from the Criminal Cases Review Commission or CCRC. The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the seven victims named on the indictment in respect of each of the seven counts are all aged under 18. The publication of information leading to their identification is prohibited. Restrictions imposed under s.45 in respect of a victim apply until that individual reaches the age of 18. An order to this effect was made in the Crown Court, and we reaffirm those reporting restrictions and make such an order in the appeal. These restrictions do not apply to the name of the appellant herself, or to her co-defendant in the Crown Court.

On 4 November 2022 in the Crown Court at Lewes before His Honour Judge Mooney, the appellant was sentenced for seven separate offences of cruelty to a person under 16 years, contrary to section 1(1) of the Children and Young Persons Act 1933. Each of the seven counts related to a separate child of the appellant, who had eight children living at the property, but one was over the age of 16 years and hence not subject to the legislation. The offending therefore only related to the seven children below that age. There was a co-defendant called Christopher Bennett, who was the natural father of the youngest four children and the step-father of the elder children. The offending had taken place between 2019 and 2021. Both defendants were sentenced to six years’ imprisonment on each of the seven counts, those sentences to run concurrently to one another.

The appellant had pleaded guilty in March 2022 on a Basis of Plea. That plea was not accepted by the prosecution. However, no Newton hearing was held, and neither party at the Crown Court sought to persuade the judge to hold one. This is because it was conceded by the defence at the Crown Court, as indeed it was before us, that the offending was properly placed as the most serious in terms of harm. Ms Packham, who appeared at the Crown Court for the prosecution as well as before us, explained to us the circumstances in which this decision was taken, and also that many of the points in the plea document were effectively points of mitigation in any event. The defence did not press for such a hearing either.

The facts of the offending are as follows. The police attended the property following telephone calls from the co-defendant Bennett to them in which threats were made concerning the appellant. Upon arriving, they discovered an almost indescribable scene of squalor. The property is a three bedroom house and had ten human occupants. These were the two defendants; the eldest of the appellant’s children; and the seven younger children, charges in respect of whom appeared on the indictment.

Officers were shocked by the state of the property. Conditions in the house were described as very dirty, dark and airless, with an overpowering smell. As well as the ten occupants, there were also 35 living dogs present, in addition to which the body of a dead dog was found lying on the kitchen floor. There was dog faeces scattered around, and officers had major concerns for the welfare of all the children, who were very dirty and appeared to be malnourished.

Due to the state of the property and the conditions in which the children were living, it was decided that the best possible way to safeguard the children would be to place them under police protection and ensure that they were not allowed to go back to the address.

The three eldest children were handed over to the care of their natural father, and the four youngest were made subject to emergency protection orders, followed by interim care orders. The RSPCA was called to deal with the dogs and the Hastings Magistrates Court dealt with other offences relating to the animals in February 2022, imposing a suspended sentence. We quote from one of the witness statements of one of the police officers who attended the scene:

“…the property itself within what can only be described as a state of absolute filth, the smell of urine and faeces was almost overwhelming, the floors were sticky and covered in what appeared to be several months of built up rot and garbage, located within the front room of the property were a large number of dogs and puppies, some restrained in a cage which when the door of the room was opened fell apart, the door itself barely opened as a result of the built up rubbish and decayed and partially dried dog faeces which was covering the floor…”

Within the room with the dogs, officers found a child sleeping on the sofa. They noted that she was wearing a very old and full nappy. She smelled and was visibly dirty; her hair was severely matted, and she appeared to have faeces on her body. Based on her appearance, the officers judged her age to be around three or four years old, but she was in fact seven years old. It turned out that she was malnourished to an appreciable extent. In the witness statement of another of the officers the following was stated:

“In 18 years of police service, the living conditions I witnessed at [the property] are possibly the worst I have ever experienced. The conditions are not suitable for man nor beast, let alone children.”

We would add that the dental health of the children was shocking. After the arrest of the two defendants, it transpired that the school had attempted over some time to engage with, and confront, the appellant about the state of the children. By the time that the police attended the property, the children had been withdrawn from school. The two youngest had never attended school.

In sentencing the appellant, the learned judge observed that there was a significant monthly income available to the household, but the two defendants consistently put themselves first and ignored the basic needs of their children. We have seen the photographs of the property and the state of squalor is extremely difficult to describe. The sentencing judge described the situation as being impossible for any person, but particularly a parent, to begin to comprehend the enormity of the failings involved on the part of the two defendants. The period on the indictment was different for the separate counts due to the ages of the children involved, but the earliest day was 4 September 2019 and the latest 15 June 2021. This is a period therefore of well in excess of 20 months. Not that any lack of funds would excuse these conditions in the least, but it must be observed that, notwithstanding any other income, the monthly income of the household from the different benefits alone came to just in excess of £7,000 per month. This is a significant sum. This is not a case where lack of funds can remotely be said to have played any part whatsoever in these conditions.

We will not labour the point but the evidence provided to the sentencing judge was compelling. Simply in terms of the Victim Personal Statements provided by the children’s emergency foster carers, these make it clear that these children were exceedingly badly neglected. They ate with their hands; they could not wash themselves; they were malnourished and underweight; they could not read and did not attend school; and they were wearing clothes that were just too small for them. Fortunately, given the proper care they have received since the conditions were discovered, and their regular attendance at school, their lives have improved dramatically.

The judge categorised the offending as 1A. The level of harm had been conceded as being of the most serious, namely level 1. Both defendants contended for medium rather than high culpability, but this was contested by the prosecution, who categorised culpability as high. The judge, who had the benefit of a pre-sentence report or PSR considered the culpability of the defendants to be that of category A.

Under the guidelines then in force the resulting categorisation of 1A gave a starting point for a single offence of this type of six years’ custody with a range of four to eight years. The sentencing judge moved to the top of the range to reflect the number of offences, and then discounted this downwards by 25% to reflect the guilty plea. Both defendants were sentenced to the same period of imprisonment of six years.

The appellant sought to appeal her sentence and her application for leave was dismissed by the single judge on 17 February 2023. The single judge considered that the four grounds of appeal then advanced were not reasonably arguable. These were that the sentence was too high given the judge had found it was a case of severe neglect and not intentional cruelty; that he had failed to take account of the appellant’s personal mitigation including her diagnosis of health conditions and that lengthy incarceration would have a detrimental impact on her children; that he failed to take account of her lack of previous convictions and her steps taken to address her behaviour following her arrest; and that he made insufficient differentiation between the defendants given their antecedents.

No application to renew to the Full Court was made by the appellant. In March 2023 the appellant applied instead to the CCRC, making extensive submissions that ran to nine separate grounds, and made three separate points in relation to the harm to the children.

By section 13 of the Criminal Appeal Act 1995, the CCRC shall not make a reference to the Court of Appeal unless the CCRC considers that there is a real possibility that the conviction or sentence in question would not be upheld. By the same section, unless there are exceptional circumstances, this consideration must be reached because of either argument or evidence, that was not raised in the proceedings which led to the conviction or any appeal or application for leave to appeal. Here, it is not contended by the CCRC or Mr Oliviera-Agnew who appeared before us that there are such exceptional circumstances, and the reference relies upon new medical evidence in respect of the appellant’s mental health.

In determining whether new evidence should be received, the Court of Appeal will consider whether it is necessary or expedient in the interests of justice to do so and have regard to the criteria laid down in section 23(2) of the Criminal Appeal Act 1968 as amended. The Court of Appeal will consider the following:

The CCRC may only refer a sentence on the basis of a point of law or new information that was not presented in the sentencing hearing or any appeal.

It therefore follows that an application by anyone to the CCRC is not to be treated as an opportunity to re-run the points that were originally relied upon at either the original trial (here, the sentencing exercise conducted by the judge in the Crown Court) or upon the original appeal. The CCRC is concerned with the question whether, based upon either new argument on a point of law or new information (which would amount to fresh evidence), there is a real possibility that the Court of Appeal will not uphold a sentence. In particular, the CCRC is not empowered to refer any sentence back to the Court of Appeal simply for it to consider the same issues again.

The grounds upon which the appellant relied when she contacted the CCRC are, for the most part, almost entirely the same as those upon which she relied originally, or if not in precisely the same exact terms, subtle deviations of the same. This was rightly recognised by the CCRC who identified in paragraphs 29 to 35 of their admirably detailed reference document that the vast majority of the points she relied upon were simply the same original points or submissions deployed again. We agree with the CCRC in this respect. We therefore concentrate, as the CCRC reference does, on the submissions made in respect of her mental health and in particular her post-appeal diagnoses.

We have had oral amplification of these matters today on the appellant’s behalf by Mr Oliveira-Agnew. We have also had both a Respondent’s Notice from the prosecution and oral submissions from Ms Packham too. We are very grateful for all of these, which have been most helpful to us.

The situation regarding her post-appeal diagnoses is as follows. The appellant has been seen by a number of health professionals. A letter was submitted to the sentencing judge from the East Sussex Neurodevelopmental Service dated 19 May 2022 that stated that the appellant was on a waiting list for an assessment for Autism Spectrum Disorder (“ASD”). He also had a letter from her psychotherapeutic counsellor. However, since sentence she has been seen by Dr Simon, a forensic psychiatrist on 3 October 2023; by Dr Lawrence, a consultant psychiatrist on 2 May 2024; and by Dr Halsey, a clinical and forensic neuro psychologist. Dr Halsey has prepared two reports, as following his first report he was asked certain questions by the CCRC including his view as to reduced culpability. He provided an addendum report but did not address that specific question. She has also been seen by Dr Ude, an endocrinologist, who diagnosed her with Gitelman’s syndrome, which is a potassium deficit. That has been stabilised with medication.

Dr Simon stated that “Autism, Attention Deficit Hyperactivity Disorder (“ADHD”), Post Traumatic Stress Disorder (“PTSD”) and bereavement are the main problems”. Dr Lawrence stated that she presented with neurodiversity and ADHD, and also that her minimization of her actions and externalization of blame suggested a need for focused interventions. Dr Halsey concluded that during the indictment period the Covid-19 pandemic and lockdowns would have caused her considerable psychological stress, together with other life events that were taking place at the time. Her anxiety levels would have been increased. He did not consider that she met the requirements for diagnoses of ASD, ADHD and PTSD. He considered that she met the criteria for hypochondriasis (ICD-11 code: 6B23.0) which is health-related anxiety. In his addendum report, he concluded that due to this, “reliable diagnosis of her mental health status is an unusually complex process.” He also said that “it is therefore the sort of case where different clinicians may well arrive at different views”. He did however conclude that she had a mild to moderate personality disorder (ICD 11 code: 6D10). Features he took into account in categorising this were that she showed positive abilities to function in other parts of her life, such as running her own commercial dance school business and buying her own home.

In terms of the connection between her conditions and her offending, he opined that the combined effect of her mental health problems (including low self esteem and anxiety, as well as her personality disorder) would have had an impact on her ability to think rationally and exercise appropriate judgement. He stated that he considered that without these characteristics, she would have been less likely to have committed the offences.

The issue on this reference is therefore a simple and single one, as helpfully explained by Mr Oliveira-Agnew. He accepts that all of the relevant features of the appellant’s circumstances and difficulties were before the sentencing judge, with the exception of the diagnoses that followed her imprisonment. He relies upon the opinion of Dr Halsey, who concluded that the appellant did not have PTSD, ASD or ADHD. Dr Halsey concluded that the mild to moderate personality disorder with which she presented would, in combination with her other features such as anxiety, have made her more likely to have committed the offences.

We accept that the evidence of Dr Halsey is new evidence that was not before the sentencing judge and the requirements of section 23(2)(1), (3) and (4) of the Criminal Appeal Act 1968 are made out. The evidence is capable of belief, was not available at the time, and there is a good explanation for this. However, the great difficulty faced by the appellant is that the material and opinion from Dr Halsey do not, in our judgment, constitute a good ground for concluding that the sentence is manifestly excessive.

This is for the following reasons. As recognised in the Sentencing Council’s Guideline on sentencing offenders with mental disorders, the fact that an offender has such a disorder must always be considered but will not necessarily have an impact on sentencing. These guidelines must be followed by reason of section 59(1) of the Sentencing Act 2020, but at the time of sentencing, although the appellant was on the waiting list to be assessed for ASD, in Dr Halsey’s professional opinion – relied upon by the appellant – she does not satisfy the criteria for such a diagnosis. The sentencing judge was told a great deal about her anxiety, and took that into account.

The guideline goes on to state that an offender’s culpability may be reduced if they are suffering from an impairment or disorder, but there must be some sufficient connection between the impairment or disorder and the offending behaviour. Any such link in this case is, with respect to the appellant, somewhat tenuous, and even Dr Halsey does not contend strongly for such a link. Indeed, this is entirely understandable. Any such link is extremely difficult to discern.

One must consider, as we do, the full text of Dr Halsey’s analysis and opinion, and all the facts of the offending. The dates on the indictment are different for some of the children because some of them turned 16 years of age during the overall indictment period. However, the period spanned by the seven counts in total runs from September 2019 to June 2021. This is an extremely long period. During this time, the appellant withdrew her children from school, following a number of interventions or challenges from the school. Social services became involved, and she was careful to ensure (for example) that the dogs were never in the house when visits by the social services took place. This shows a degree of planning, if not manipulation, on her part. Further, the level of neglect in this case is verging on the extraordinary.

Further, it could be said that it was somewhat restrained to move from the starting point of six years only up to eight years (which is the top of the range) to reflect the fact that rather than one single offence, here there were seven identical ones. We also consider it fanciful that someone with a mild to moderate personality order, conducting her life successfully in other ways as this appellant was, can demonstrate a sufficient connection between that condition and bringing up a child who was in fact seven years old and still wearing a nappy, so malnourished that those immediately attending thought she was only three, that nappy not having been changed for about a week. This is quite apart from the squalor of the room where the child was found, together with the presence of 36 dogs (if one includes in the total the dead one).

In our judgment, and given that to succeed in her appeal a conclusion that the sentence passed was manifestly excessive is required, the new evidence of Dr Halsey demonstrates no sufficient connection between any of the appellant’s conditions and the offending such that it would constitute or found a good ground of appeal.

We also note that in this case, following the refusal of leave to appeal against sentence by the single judge, the appellant chose not to renew that application but instead, somewhat later, made an application to the CCRC to take up her cause. This point was explored with Mr Oliveira-Agnew, who was not counsel instructed on the original appeal and therefore not involved in that decision. An alternative would have been for her to have applied to renew out of time together with an application for an extension of time. We are satisfied that given the helpful way in which the new evidence was deployed both by the CCRC and by him, that no prejudice has been caused to the appellant by the course that was adopted, and we refer to the matter solely for completeness.

Notwithstanding our views in this particular case, we are grateful to the CCRC for the work that was performed on this reference. The CCRC performs a vital role in the administration of justice. In this case we have concluded that the report of Dr Halsey in particular does not make any material difference to the nature of the offending by the appellant, demonstrating as it does no sufficient connection with the offending itself. It was however helpful and necessary that the evidence was obtained and considered. Ultimately, after careful consideration by this court, it has not lead to the conclusion that the sentence of six years is manifestly excessive. We are entirely satisfied that given the dreadful circumstances of the offending against the seven children, the sentence was entirely justified.

Given our conclusion that the sentence of six years is not manifestly excessive in all the circumstances of this offending by the appellant, we dismiss the appeal.