Neutral Citation Number: [2018] EWCA Crim 2171
Case No. 2018/03049/A1
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date Wednesday  26th September 2018

B e f o r e:
LORD  JUSTICE  TREACY

MRS  JUSTICE  ELISABETH  LAING  DBE

and

MR  JUSTICE  FRASER
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R E G I N A
 
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JESSICA  AURORA  LINDSAY
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Computer Aided Transcript of
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Mr J Morgans appeared on behalf of the Appellant

Mr S Spence appeared on behalf of the Crown
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J U D G M E N T (For  Approval)

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LORD JUSTICE TREACY: 
1.  Having previously pleaded guilty at the earliest opportunity to an offence of neglecting a child, the appellant was sentenced in the Crown Court at Norwich on 20th July 2018 to a term of sixteen months' imprisonment.  A period of 67 days spent on a qualifying curfew was ordered to count towards that sentence.

2.  A co-accused, Shane Riley (the appellant's partner), also pleaded guilty.  He was also sentenced to sixteen months' imprisonment.

3.  The victim in the case was the baby son of the defendants.  The indictment arose from his sudden and tragic death at the age of seven weeks in early February 2017.  On the evening prior to the baby's death, both parties had been drinking and they had consumed cocaine.  It appears that the appellant had consumed considerably less alcohol than Riley, but the pharmacological evidence showed that both were likely to have been intoxicated with cocaine and alcohol in a way which would significantly have impaired their ability to care for a dependent child.

4.  Friends had been present during the evening.  They described the appellant as feeling unwell and going to bed, leaving Riley downstairs with the child.  At that stage, the plan was for the baby to go and stay with friends.  The appellant was present when a bag was packed.  Riley, however, later changed those arrangements so that the baby stayed in the couple's home for the night.  Riley went to bed, taking the baby with him into the bed which he and the appellant shared.  Early the following morning, the baby's lifeless body was discovered in the bed.  The appellant immediately called 999.

5.  A post-mortem examination found that there were no signs of trauma or violence towards the baby.  It did not establish a conclusive cause of death, although what was described as "overlaying" was not excluded.

6.  There was evidence that both parties had previously been advised about the dangers of taking a very small baby to bed, and the judge commented that to do so in a state of intoxication could only increase those dangers.  It was apparent that the pair had immediately called for assistance when they found the baby's lifeless body and that each immediately accepted responsibility for what had happened.  There was very clear evidence of genuine remorse and, as we have said, early guilty pleas had been tendered.

7.  The appellant is 30 years of age.  She has no previous convictions and there was positive evidence of good character in the form of favourable work and personal references.

8.  A pre-sentence report confirmed the appellant's remorse and her acknowledgement that on the night in question she had been in an unfit state to be responsible for her child at a time when her partner was clearly intoxicated and not able adequately to safeguard children.  The abuse of drugs and alcohol on this occasion was not typical.  Testing has confirmed that, since the incident, the appellant has remained abstinent from any form of substance.

9.  The appellant and her partner have three other children, now aged twelve, almost four and seven months.  The seven month old was born in February 2018 whilst this case was making its way through the system.  Naturally, close consideration was given by the authorities to the position of those children in the light of what had happened and the matter was considered by the Family Court.  Reports prepared recognised that there had been no prior concerns about the care provided by the appellant and her partner.  The children had not been removed from her care by the time of sentence, albeit that the situation was closely monitored by the relevant authorities.  The passing of an immediate prison sentence means that the youngest child has been parted from his mother for the first time.

10.  The grounds of appeal advanced by Mr Morgans (who did not appear below) submit that a starting point of two years was too high in the circumstances and did not properly reflect the appellant's culpability.  Secondly, it was urged that although the custody threshold had been crossed, any custodial sentence should have been suspended.

11.  The judge rightly commented that this was a difficult case to sentence and further commented that it was difficult to fit this sort of offence into the guidelines.  By that, we take him to have been referring to the Sentencing Guidelines Council's guideline for cruelty to a child, which does not specifically address the situation where a death has occurred, a feature of obvious significance.  The guideline distinguishes between serious long-term neglect, protracted neglect, more than one incident of neglect, and short-term neglect.  In our view, this case falls somewhere between protracted neglect and short-term neglect.

12.  We think that there is force in the argument that there was a distinction to be made in the relative culpability of the parties.  At the hearing below, both parties were represented by a single advocate.  It may be that a result of that was that a legitimate distinction between the pair was insufficiently drawn to the judge's attention.  It is clear from the evidence that the appellant was not a party to the decision to keep the baby in the home overnight.  Nor had she taken the child to bed.  She appears to have been unaware that the child was in bed with her, and her culpability is based on the fact that she had left the baby in the charge of the co-accused, who was not in a fit state to look after the child.  

13.  Mr Spence, who represents the Crown today, has confirmed that the Crown takes no issue with that analysis as to culpability.  In the circumstances, we find that the culpability of the appellant was less than that of her co-accused and that, on that basis, a distinction should have been made between them.

14.  We have considered R v Ryan [2012] 1 Cr App R(S) 40.  That decision bears some degree of similarity to the present case and it considers other cases of neglect where death has resulted.  It is apparent from the Sentencing Guidelines Council's guideline and the decision in Ryan that in a case like this a sentence after a trial of around two years' custody is appropriate.  It is also clear, and is accepted by counsel, that the custody threshold has been crossed, since society demands punishment for those who, whatever their personal difficulties, neglect their children, with tragic consequences.

15.  In this context we have considered the Sentencing Council's definitive guideline on the imposition of custodial sentences.  We remain satisfied that the custody threshold has been passed and that a sentence of imprisonment was necessary.  We are unpersuaded that there was anything wrong with the sentence passed on Riley.  But, given the lesser degree of culpability on the appellant's part, we think that there should have been some distinction made between the pair.  In our view, a sentence of eighteen months after trial (which already factors in previous good character and remorse) would have been appropriate and should have resulted in a sentence of twelve months' custody for the appellant after her guilty plea.  

16.  We then go on to consider whether the sentence should have been suspended.  The appellant is a mature woman who does not present a risk or danger to the public; nor, in the view of those who have examined the matter carefully, does she pose a risk to her own children.  She is deeply remorseful, has learned from bitter experience, and her rehabilitation is in prospect.  Of particular significance in this case is the position of her three children, not least that of the infant third child.  It is well-recognised that immediate custody will have a harmful impact upon a child of such tender years when separation occurs.  In this case, mother and child have now been separated for a period of about two months.  Having regard to the decision in R v Petherick [2013] 1 Cr App R(S) 116, as well as the imposition guideline, we are satisfied that significant weight should be given to the position of all the appellant's children.

17.  The judge's sentencing remarks do not reveal a consideration of those matters.  Mr Spence informed us that the judge's attention does not appear specifically to have been drawn to the decision in Petherick.  Moreover, we observe that the judge made some inappropriate reference to the draft guidelines for manslaughter by gross negligence prepared by the Sentencing Council.  Although he did not place great reliance on them, it was wrong to refer to them at all, firstly, because of their status as draft guidelines, and secondly, because the appellant was not being sentenced for causing a child's death.  

18.  Having regard to all those matters, we do not feel able to sustain the judge's decision to pass an immediate term of custody.  In our judgment, the correct course is to impose a suspended sentence of imprisonment.

19. Accordingly, we allow this appeal.  We reduce the term of custody from one of sixteen months to twelve months' imprisonment.  We suspend that sentence for a period of two years.  In addition, we impose a requirement that the appellant be subject to a supervision order for that period.  In the light of the fact that she has already served time in custody, we do not impose a punitive requirement.  To that extent, this appeal succeeds.

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Wednesday  26th  September  2018

LORD JUSTICE TREACY:  
20.  This matter was listed yesterday when the court allowed the appeal and imposed a sentence of imprisonment of twelve months suspended for two years, coupled with a supervision order.

21.  After the hearing, it came to the attention of the court that it is now no longer possible to attach a supervision requirement to a suspended sentence order as a result of the provisions of the Offender Rehabilitation Act 2014. 

22.  The court has given further consideration to the matter and has detCIermined that it will exercise its power, pursuant to section 200A of the Criminal Justice Act 2003, to attach a Rehabilitation Activity Requirement to the suspended sentence.

23.  The court has considered the terms of section 200A.  We do not impose any days by way of activity participation requirement, as we envisage the Rehabilitation Activity Requirement as being used as a means of ensuring compliance with instructions to attend appointments for a supervisory purpose only.  That is a permitted use of a Rehabilitation Activity Requirement, as the wording of section 200A(1) makes plain.

24.  We therefore correct the sentence which was imposed yesterday to that extent by substituting the Rehabilitation Activity Requirement in the manner explained for the supervision order which we initially attached.  The requirement will run for a period of two years co-terminus with the suspended sentence.

25.  We note that today's list shows that an order was made pursuant to section 45 or 45A of the Youth Justice and Criminal Evidence Act 1999.  That was expressly discussed at the hearing and the court made plain that it did not propose to make any order.  We hope that the records of the hearing will plainly show that.

(Later)

LORD JUSTICE TREACY:  
26.  We have been asked by the probation liaison officer to give further clarity as to the nature of the order which the court intends to make.  The court intends to impose a Rehabilitation Activity Requirement, pursuant to section 200A of the Criminal Justice Act 2003.  Such an order may take the form of requiring an offender to comply with instructions to attend appointments, or to participate in activities, or both of those things.  If the order is intended to require participation in activities, then section 200A(2) requires the court to specify the maximum number of days for which an offender may be instructed to participate in activities.

27.  It is not the intention of this court to require this appellant to participate in any activities at all during the currency of the suspended sentence.  The court's intention in making a Rehabilitation Activity Requirement relates to its power to order the appellant to comply with instructions given by the responsible officer to attend appointments.  It is our intention that that provision in section 200A(1) is used in this case to enable a probation officer to require the appellant to attend appointments throughout the two year period of the order.  It is solely for that purpose, rather than requiring participation in any activities, that this order is made.  In those circumstances, there is no obligation upon the court to specify a maximum number of days as subsection (2) requires.

28.  Accordingly, it will be for the responsible officer to make a judgment as to the frequency of the requirement to attend appointments as this order progresses.  But the requirement will remain in place for the full period of the suspension of the sentence of imprisonment, namely a period of two years.

29.  We hope that clarifies the position for the Probation Service to implement.

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