No: 201802872/A3‑201802874/A3 
Neutral Citation Number: [2018] EWCA Crim 2195 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 22 August 2018 
 
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE FOSKETT
MR JUSTICE WARBY

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REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988

R E G I N A 
v 
TAMAS NEMET 
ORSOLYA NOEMI REPASI

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Ms C Pattison appeared on behalf of the Attorney General
Mr F Dunning appeared on behalf of the Offender NEMET
Ms T Bird appeared on behalf of the Offender REPASI

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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

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J U D G M E N T
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LORD JUSTICE SIMON:  

THIS PAGE IS NOT INTENTIONALLY LEFT BLANK
1.	This is an application brought by the Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer a sentence which he considers to be unduly lenient.  

2.	The sentence was passed on these offenders on 15 June 2018 in the Crown Court sitting at Kingston upon Hull.  Each offender had been charged with offences contrary to section 5 of the Domestic Violence Crime and Victims Act 2004 (the "DVCVA").  That offence is of causing or allowing a child to suffer serious physical harm.

3.	Following their trial for this offence before HHJ Tremberg and a Hull jury, both offenders were convicted and were sentenced by the trial judge.  In the case of Nemet, aged 34, to a term of three‑and‑a‑half years and in the case of Repasi, aged 28, to a term of 3 years' imprisonment.  In respect of both offenders the judge gave notice that they may be placed on the Barring List by the Disclosure and Barring Service and a victim surcharge was imposed.

4.	The offenders began a relationship when Repasi was pregnant with her child, D, who was the victim of the offence.  He was born in June 2016 and although Nemet was not his father he was registered as such and undertook that role until D was placed in local authority care in September 2016.

5.	The offenders concealed the identity of the baby from his biological father and concealed the identity of his biological father from the authorities.

6.	On 23 September 2016 the offenders took D to the doctor's surgery.  He was 14 weeks' old at the time.  They reported that D had developed a problem with his left arm overnight and was struggling to move it.  D was referred to the Hull Royal Infirmary whether he was medically examined and X‑rayed.  It was discovered that he had sustained four fractures. First, a spiral fracture of his left upper arm, consistent with him being yanked up sharply by the arm and having that arm twisted.  Two, a fracture of his right eleventh rib, most likely caused by a squeezing compression of the chest.  Third, a metaphysical fracture of his left thigh bone.  Fourth, a metaphyseal fracture of his left shin bone.  These metaphyseal fractures were most likely caused by a pulling and twisting application of force, similarly to the way in which the arm was injured.

7.	Dr Joanna Fairhurst, a consult paediatric radiologist, concluded that the fractures taken together were indicative of non‑accidental injury, the timing of which spanned 2 August to 23 September 2016.  The fractures were caused on at least two separate occasions and required four discrete applications of force.  The fracture to the left arm had been inflicted shortly before the offenders took the baby to the doctor's surgery on 23 September.

8.	Dr Fairhurst gave evidence that the baby would have responded to the infliction of the injuries with immediate distress and crying but his distress would have settled within 15 to 30 minutes.  Furthermore, it would have been apparent to anyone in the room at the time that a significant injury had been caused.

9.	Her evidence was that significant force would have been required to cause the injuries but that the leg and rib fractures might well have been clinically silent within days of the infliction.  This reflected information taken from GP notes showing that D had been taken to the GP and subjected to leg examinations on 14 and 16 September at which time no abnormalities of the leg or other injuries were noted.  Following D's admissions to hospital on 23 September, his arm fracture was treated by an elbow cast.  The other fractures did not require any medical intervention.

10.	In interview each offender supported the other.  However, by the time of the trial each offender blamed the other for the infliction of injuries.  Both said that they were unaware that D had suffered any injury until the early hours of 23 September, following which he received timely and appropriate medical treatment.  They were subsequently charged and convicted of offences under section 5.  Nemet on count 1 and Repasi on count 2.

11.	So far as the impact of the crimes was concerned, although the infliction of the injuries would have caused immediate distress that distress would have settled shortly and there had been no ongoing consequences for his recovery or development.  The medical evidence was clear that despite four fractures the consequences were not serious and long lasting.

12.	So far as the antecedent history of the offenders is concerned, Tamas Nemet had one previous conviction for endangering a child and causing grievous bodily harm by negligence in respect of his 6‑week‑old daughter in 2008 in his native Hungary.  He received a sentence of 1 year and 10 months' imprisonment suspended for 3 years.  It appears that his 6‑week‑old daughter sustained a fractured skull, two black eyes and, on an earlier occasion, a fractured rib.  The court found that Mr Nemet handled his daughter roughly and dropped her, causing the skull fracture.  Medical treatment was delayed before Social Services intervened when she was taken to hospital.  From birth she had been inadequately fed, clothed, washed and cared for.  Nemet was described as violently shaking the baby and screaming into her ears to stop her crying.

13.	We should note Mr Dunning's submission that, although the fact of the conviction was relevant to sentence, the detail was not, in view of the way in which the judge dealt with the offending, namely not attributing particular cause to either offender, for reasons we will come to shortly.

14.	Orsolya Repasi had no previous convictions.  There was no pre‑sentence report for either offender.  

15.	In the absence of Sentencing Guidelines for this offence, prosecution and defence counsel invited the judge to have regard to the closest comparative guideline for offences of child cruelty, contrary to section 1(1) of the Children and Young Persons Act 1933 - Overarching Principles: Assaults on children and Cruelty to a child. 
 
16.	The judge sentenced the offenders on the following basis.  One, both were equally liable for causing the serious physical harm.  It was not possible to determine, whether or both caused the serious physical harm or failed to protect D from a foreseeable risk of serious physical harm from the other.  Two, regard was had to the Definitive Sentencing Guideline for offences of child cruelty, the closest comparative guideline and the Assault Guidelines for Inflicting Grievous Bodily Harm, contrary to section 20 of the Offences Against the Persons Act 1861.  Three, for both offenders the culpability was very high. Four, so far as seriousness was concerned, the case did not sit comfortably in any of the categories but category 2 was the closest.  Five, category 2 had a starting point of 3 years' imprisonment and a range of 2 to 5 years.  Six, four fractures had been caused on at least two occasions but probably three or four occasions.  Seven, the infliction of injuries caused immediate and extreme physical pain and risked causing even more serious injury.  Eight, save for the fracture to the arm, there was no evidence that they made any effort to address the pain that the child suffered. The failure to seek timely medical attention risked the injuries being untreated, possibly leading to a worse outcome.  Although they had ultimately sought medical assistance the only reasonable inference to be drawn from the fact that they took D for medical attention on 23 September was that they were aware that this time the injury could not being ignored because the child's left arm was limp and was excruciatingly painful to touch.  Nine, in so far as personal circumstances were concerned, Nemet had a previous relevant conviction however Repasi was relatively young, was of previous good character and lacked some maturity.

17.	In respect of Nemet, the judge took the starting point of 3 years and made an upwards adjustment of 6 months to reflect the relevant previous conviction. In respect of Repasi the judge took the same starting point of 3 years' imprisonment, having determined he could not distinguish between them in terms of the criminality involved, and made no further adjustment.  

18.	Ms Pattison, who appears for the Solicitor General, submits that there were a number of factors which were relevant to the seriousness of the offending.  First, the number of injures (four discrete deliberate applications of force by different mechanisms).  Second, the nature of the injuries (fractures to the left arm, right rib, left thigh bone and left shin bone).  Third, the number of occasions when the injury was inflicted (at least two separate occasions).  Fourth, the particular vulnerability of the victim (a baby).  Fifth, the abuse of trust (mother and stepfather).  Sixth, the impact on D (the immediate distress and crying).

19.	She acknowledges that in respect of the vulnerability of the victim and the trust reposed in a mother and stepfather it is important not to double count since the offenders were convicted of an offence which by its very nature involved harm being caused in a domestic setting by a carer of a vulnerable child.  In our view, that concession was rightly made and the fourth and fifth factors are materially irrelevant.

20.	However, she submits there were aggravating features.  First, the failure to seek medical help for three of the fractures, and the fact that they only sought medical attention for the fourth because this time they had caused an injury which could not be ignored as the baby's left arm was limp and painful to touch.  Second, for Nemet, his relevant previous conviction.

21.	So far as mitigation is concerned, it is recognised that the judge was right to reflect the matters he identified in the case of Repasi.

22.	Ms Pattison submits that the maximum sentence available in respect of an offence contrary to section 5 of the DVCDA, where serious harm occurs, is a term of 10 years' imprisonment.  Although the Sentencing Council has not issued specific guidelines for sentencing for this offence, the closest comparative guideline was for the offence of child cruelty.  That was acknowledged by prosecuting and defence counsel at the sentencing hearing and was the approach adopted by the trial judge (in his sentencing remarks).

23.	Ms Pattison points out that both offences share a maximum sentence of 10 years' imprisonment and the Definitive Guidelines apply to all offenders who are sentenced on or after 3 March 2008.  She acknowledges that the judge applied these analogous guidelines, but submits that he was required to sentence at a level above the starting point the second most serious level of offending (3 years) because of the aggravating circumstances.  In summary, she submitted that the sentences of three‑and‑a‑half and 3 years respectively were too lenient by a factor that calls for this court to intervene.

24.	Mr Dunning, who appears for Nemet, submits that the judge was right to have regard to the guidelines on Assaults on children and Cruelty to a child and that he was right to impose the offending in category 2 on page 17, with a starting point of 3 years' custody and a range of 2 to 5 years.  Although he accepts there were a number of injuries caused on a number of occasions, he submits that this level of cruelty is covered by category 2.  Importantly, the fractures having healed entirely and because of the age of the victim, he would have no lasting memory of the incidents.  Finally, he submits that the judge presided over the trial and was in the best position to assess the nature and seriousness of the offending and where it should be placed within the applicable guidelines.  The judge, as he put it in his oral submissions, had a thorough understanding of both the offence and the offenders.  He passed the right sentence and in any event not a sentence that was unduly lenient.

25.	For Repasi, Ms Bird echoed those submissions with appropriate adjustment for the particular position of her client.

26.	We have also seen abbreviated prison reports for Nemet and Repasi.  The report for Nemet is wholly favourable.  Repasi faces difficulties due to language barriers but is taking proper advantage of the opportunities available to her.

27.	The maximum sentence for this offence is a term of 10 years' imprisonment in contrast to a maximum of 5 years for an offence of causing grievous bodily harm, contrary to section 20 of the Offences Against the Person Act.  As already noted, there are no guidelines for a section 5 DVCVA offence.  However, the Sentencing Guideline Council guidelines in relation to the Overarching Principles in relation to Assaults on children and Cruelty to a child (the ‘Child Assault Guidelines’), deals with offences contrary to section 1(1) of the Children and Young Persons Act 1933, and categorises the seriousness of the offending in terms of the nature of the failure, the culpability and the harm, with indicated sentencing points and sentencing ranges.  The highest indicated sentence within the most serious category of offending is a term of 9 years, which is what one would expect for an offence contrary to section 5 of the DVCVA which has the same maximum sentence.  That sentence applies to serious cruelty over a period of time, or serious long‑term neglect.  It is not suggested that this was such a case.

28.	The second most serious category, what is referred to as category 2 offending in the cases, includes:

(i) Series of assaults (the more serious the individual assaults and the longer the period over which they are perpetrated the more serious the offence).  

29.	Paragraph (ii) refers to protracted neglect or ill treatment, and paragraph (iii) provides: "(iii) Failure to protect a child from either of the above." 

30.	Although we were referred by Ms Pattison to two decisions concerning offences under section 5 of the DVCVA: R v Matthew Leon Challis [2016] EWCA 526 and R v X and Y [2017] EWCA Crim 685. These were all appeals against sentence in which the court held in the former case a sentence of 3 years' imprisonment and the latter case a sentence of three‑and‑a‑half years' imprisonment was not manifestly excessive.  

31.	Two points may be noted.  First, in Challis, a shaking case, the court noted that the Guideline on Assaults were of less utility in the sentencing exercise than the Child Cruelty Guidelines.  With that observation we entirely agree.  This offence is concerned with what the Child Cruelty Guidelines referr to as "a failure to protect".  The infliction of serious injury is implicit in the charge.  Second, in X and Y there were two victims, one of them a baby suffered the deliberate infliction of unexplained multiple fractures, of different ages, all over his body which had been caused by the application of great force.  Against that was the two appellants' previous good character and their significant cognitive impairment.  These cases indicate that the seriousness of the offences charged under section 5 vary according to their particular facts and that the particular facts of the case bare closely on the sentence.

32.	As to whether or not it is properly described as mitigation, an attempt to seek medical help for a victim of serious physical harm is a matter to be taken into account in an offender's favour although the extent it will do so will depend on the circumstances.

33.	In the present case, the judge had presided over the trial.  He acknowledged that he could not say which of the offenders had actually carried out the assault, a particular difficulty before the passing of section 5 of the DVCVA.  However, that was not a necessary finding in the light of the offence charged.

34.	There had been a series of assaults.  The crime charged under section 5 was, to précis the particulars of the offence, that being aware or in a position where they ought to be aware of the risk of serious physical harm they had failed to take reasonable steps to avoid the harm caused by the unlawful acts that were foreseeable or which ought to have been foreseen.  The judge had indicated clearly those factors which were relevant to his assessment of the seriousness of the crime, not the least of which there was the absence of apparent long‑term harm to the child.  

35.	In our view, he passed sentences that were within the proper bracket of sentences for this offending.  Accordingly, although we grant leave, we are not persuaded that the sentences were unduly lenient and we decline to interfere with them.