202403291 B4 - [2025] EWCA Crim 1135

Analysis – the appeal against sentence:

Turning to the grounds of appeal against sentence, we took the view that the judge had been faced with a difficult sentencing process. The appellant was on any view guilty of serious crimes against a defenceless child. C should have been safe in her mother’s arms and in a hospital setting. Instead, she was subjected to repeated, deliberate acts of harm, which the judge could properly find would have continued if they had not been stopped by the appellant’s arrest. On the other hand, the appellant clearly had a significant amount of personal mitigation; and her mental health and autism issues, though of limited significance in relation to her culpability, were highly relevant to the impact of imprisonment on her, as compared to its impact on other prisoners.

With respect to the judge, we were troubled by his reference to what had happened before the indictment period began. The fact that C was seriously underweight at the time of her admission to hospital was a relevant consideration, because it meant that the offences were directed against a frail and vulnerable child; but it is important to be clear that the appellant was only to be sentenced for the proven offending, which was limited to a comparatively short period.

With reference to the sentencing guideline, we were satisfied that the judge was correct to place culpability into category B, for two reasons. First, the repeated individual acts of kinking or bending the tube, or altering the contents of the drainage bag, could in our view properly be regarded as “multiple incidents of serious cruelty”, which is one of the factors indicating high culpability. Secondly, and in any event, the appellant had undoubtedly acted with “deliberate disregard for the welfare of the victim”, another high culpability factor. However, that high culpability offending was, as we have said, committed over a comparatively short period.

We rejected the submission that the judge should have placed harm into category 3. The factors indicating that category are “little or no psychological, developmental, and/or emotional harm” and “little or no physical harm”. Neither of those factors could be said to apply to the circumstances of this case. We saw some force in the argument that harm might be placed into category 2 on the basis of “a high likelihood of category 1 harm being caused”, and we noted the category B2 starting point and category range referred to in paragraph 47 above. However, the judge was in our view entitled to find category 1 harm, on the basis that C’s failure to take nutrition and to gain weight was “serious developmental harm” or “serious physical harm” . But if putting the case into that category, the judge should in our view have treated it as a case falling towards the lower end of the range covered by category 1 harm.

For that reason, and also keeping in mind the limited duration of the offending, the judge should have made an initial downwards adjustment from the category B1 starting point. In our view, an initial adjustment from 6 years to 4 years 6 months was appropriate.

There was, as the judge rightly recognised, significant mitigation. The judge reflected that by making a substantial reduction of 18 months from his provisional sentence. We were not persuaded that he was bound to make a greater reduction.

However, the combined effect of the initial adjustment of the starting point, followed by the reduction for mitigation, should have been a total sentence of 3 years’ imprisonment. We therefore concluded that the total sentence of 4 years 6 months’ imprisonment was manifestly excessive.