Neutral Citation Number: [2011] EWCA Crim 2566
Case No. 2011/03549/A7
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  21  October  2011

B e f o r e:

MR  JUSTICE  MACKAY

and

MRS  JUSTICE  SHARP  DBE

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R E G I N A

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Mr C Dunn appeared on behalf of the Appellant

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J U D G M E N T

MR JUSTICE MACKAY:  

1.  On [a day] May 2011 in the Crown Court at Leeds the appellant changed his plea to one of guilty to one offence of assault occasioning actual bodily harm (count 1) and to four offences of cruelty to a person under 16 (counts 2, 3, 4 and 5).  On 16 June 2011 he was sentenced on count 1 to twelve months' imprisonment and on each of the four counts of cruelty to eighteen months' imprisonment concurrent with each other and with the sentence on count 1.  The total sentence was therefore one of 18 months' imprisonment.  He appeals against those sentences with leave of the single judge.  

2.  The provisions of section 39 of the Children and Young Persons Act 1933 apply to this case.

3.  The facts are very sad.  The appellant and his wife were long-standing foster carers of children.  The victims of the offences were four children in their care who had been physically maltreated over a period running from August 2008 to June 2009.  They were H (born in [a month in] 1997), J (born in [a month in]  2002), L (born in [a month in]  2002) and A (born in [a month in]  1996).  H and J had indeed been adopted by the appellant and his wife.  L and A were in their care. They all had special needs in various different forms.

4.  Matters came to light when a special needs assistant noticed red marks on H's face in June 2009 and contacted Social Services.  The police were notified and the children were interviewed.  H was interviewed through an intermediary because he has learning difficulties.  The story that emerged was that, because he threw his toys in the air, the appellant had smacked him twice on the bottom with a slipper, dragged him to the toilet area and pushed his head into the toilet (count 1).  He was left with bruises to his legs, neck and face.  He told the officers that the appellant hit him daily, that the bruise that could be seen on his face was caused by a blow with a slipper, that he was scared of the appellant, and that he had also seen him hit J and A -- J with a slipper on the bottom, and B with a hard-backed book.  He also recalled an incident when L had been hit in the face with a tennis racquet.  On another occasion the appellant pulled him as he bounced on a sofa, and he fell and hit his head on the floor.  He described the appellant hitting him in the genital area with a slipper, causing swelling.  On a couple of occasions the appellant had pulled his hair and forced him to the ground.

5.  A medical examination of H showed extensive bruising on his face, shoulders, chest, both arms and thigh.

6.  When J was interviewed she told officers that she had seen the appellant hitting H, that he had also hit her but that she could not remember how often.  She was left with bruising on her legs, arms and genital area.  She said that L and A were also smacked and pushed.  During contact visits she had been told by the appellant not to say that she had been smacked.

7.  When L was interviewed he said that he did not want to go back to live with the appellant and his wife as "they hurt people".  He was shouted at, smacked on the bottom by the appellant and hit on the hands.  He told of an incident when the appellant banged A's head on the table three times for spilling some water, leaving A with a bloody nose.  He had seen the appellant hurt J and H.  On another occasion the appellant told L to hit A.

8.  The appellant entered a basis of plea.  It stated that he and his wife had been highly valued local authority carers who had cared for many children, most of whom had special needs.  They were considered role models.  The children for whom they cared in 2007 were particularly challenging.  The appellant's ability to cope with them took its toll on him.  It was against that background that the offences were committed.  He agreed that over a period of about a year he lost his ability to cope.  He heavily over-chastised and disciplined the children.  He was ashamed and distraught at what he had done.  He should have sought help, but was worried about the consequences for the children whom he loved.

9.  The appellant was a man of previous good character.  There were six written references from friends, neighbours, family and a doctor, all of whom spoke well of him both as a person and as a carer.

10.  The pre-sentence report noted that, although he had pleaded guilty to these matters, initially he appeared to show very little remorse.  He struggled to articulate exactly what he had done, other than to say that he was under stress and should have used other strategies to deal with it.  He now recognised that he should have sought help.  The author said that he did not seem able fully to articulate the impact of his behaviour on the children.  That was a matter of concern.

11.  The argument on behalf of the appellant is that, bad as these offences were, they were not sadistic.  They were committed by a man at the end of his tether, not for gratification or delight, as is sadly sometimes the case.  He has lost everything as a result of this behaviour.  It is said that the sentence is too high and was over-influenced by the negative terms of the pre-sentence report.

12.  In his sentencing remarks the judge rightly said that these matters fell between the second and third levels of the Sentencing Guidelines Council's guidelines.  There is a significant overlap in sentencing terms.  Depending on how much credit he actually gave for the appellant's late plea of guilty, it would seem to us that the judge's starting point in assessing sentence (had there been a conviction as opposed to a plea of guilty) was at or just above two years.  As to the credit that should have been given for the plea of guilty, the sequence of events was this.  There was a conditional offer of such a plea at the plea and case management hearing which was adjourned.  The condition was that the prosecution did not proceed against the appellant's wife.  That was not accepted immediately by the prosecution until after the adjourned hearing.  The matter was then listed on 12 May and the plea of guilty entered. It is not clear what credit the judge gave.  It should be and he should have said so.  The appellant had denied any offences in interview.  He had sought to say that all the injuries had been accidentally caused by falls and the like.  The plea was offered conditionally.  If, as seems appropriate and within the range of decisions open to him, the judge had only allowed 20% discount for the plea of guilty, that would indicate a starting point of two years.  

13.  Given the aggravating features in this case, we are not persuaded that that was an excessive sentence.  There were four children involved in this matter.  The conduct went on for about ten months.  The injuries were not insignificant.  We have seen photographs of the bruising on the children.  The children were at the extreme end of the range of vulnerability.  There was help available to the appellant which he could have sought.  He chose not to.  The judge was right to say that this fell on the borderline between the two categories in the guidelines.  He was entitled to start from the position from which he appears to have started.  The ultimate sentence, whilst severe in its effect on the appellant, is necessarily so in the circumstances.

14.  Accordingly, this appeal is dismissed.
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