202403291 B4 - [2025] EWCA Crim 1135

The grounds of appeal against sentence:

Miss Wass submitted that the total sentence is manifestly excessive, in particular because the judge erred in his categorisation of both culpability and harm, and because the judge failed to give any or sufficient weight to the appellant’s mitigation.

In support of the first ground of appeal, Miss Wass submitted that the judge should have found category C medium culpability, because although there were multiple incidents between 29 November and 8 December 2019 they were not incidents of serious cruelty. She further submitted that the appellant was to be sentenced only for her actions during that time, not upon an inference as to any earlier activity. Miss Wass argued that the appellant did not show a disregard for C’s welfare: rather, she repeatedly asked for help from the nursing staff. In answer to a question from court, Miss Wass confirmed that there was nothing which she relied on in the psychiatric and psychological reports as pointing to a reduction in culpability.

As to harm, Miss Wass pointed out that the prosecution in its sentencing note had identified harm as falling into category 2, and she submitted that the judge had erred in lifting it to category 1. Miss Wass argued that there had been no up to date medical evidence served by the prosecution for the purpose of sentence, and that the evidence of the appellant and of C’s father and grandfather was that C was thriving, albeit with all the physical disadvantages attendant on her original brain injury.

Miss Wass submitted overall that the offences should at most have been placed into category B2, for which the guideline indicates a starting point of 3 years’ custody and a range from 2 to 6 years.

As to ground 2, Miss Wass submitted that the judge failed to give sufficient weight to the long delay before the case came to trial, the evidence as to the appellant’s mental health, and the evidence as to her relationship with all three of her children. Miss Wass pointed out that nearly three years had passed between the appellant’s arrest and the decision to charge her, and that almost five years passed between the commission of the offences and the sentencing hearing. The appellant had been on bail for about four year eight months, during which time she had managed to maintain a strong bond with her children. The two older children (who were living with their father) had written letters asking the court not to take their mother away from them. Miss Wass pointed to the psychiatric and psychological reports indicating that custody would have a detrimental effect on the appellant’s autism and mental health, as it had done when she was remanded in custody for about three week following her convictions.

Miss Osborne submitted in response that because C was very poorly upon admission to hospital, actions which might not have caused serious harm to a robust child had the potential to cause very serious harm to C. Miss Osborne accepted that a single occasion of kinking or disconnecting the feeding tube would not on its own have caused serious harm, but submits that the repeated incidents, taken together, amounted to a prolonged incident of serious cruelty. She further submitted that the appellant’s repeated acts in any event showed a deliberate disregard for the welfare of C, such that category B culpability was squarely engaged.

As to harm, Miss Osborne pointed out that the prosecution in its note had indicated “at least” category 2 harm, and she submitted that the judge had been entitled to place harm into category 1. Dr Bunn’s evidence was that, if the appellant’s actions had continued, the impact upon C would have been very serious, and the judge had concluded that the appellant must have intended to cause serious harm.

We are grateful to both counsel. Reflecting on their submissions, we reached the following conclusions.