No. 2006/04609/A3

Neutral Citation Number: [2006] EWCA Crim 3019
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday 15 November 2006

B e f o r e:

LORD  JUSTICE  PILL

MR  JUSTICE  HODGE

and

THE  RECORDER  OF  CARDIFF
(Sitting as a Judge of the Court of Appeal, Criminal Division)
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R E G I N A

- v -

CP
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MR S SHAY appeared on behalf of THE APPELLANT
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J U D G M E N T

Wednesday  15  November  2006

LORD JUSTICE PILL:  I will ask Mr Justice Hodge to give the judgment of the court.

MR JUSTICE HODGE:
1.  On 21 July 2006, in the Crown Court at Swindon, the appellant pleaded guilty to cruelty to a person under 16 years of age.  On 1 September 2006, he was sentenced by His Honour Judge Longbotham to a term of two years' imprisonment.  The appellant's wife, who had been a co-accused, was found not guilty under section 17 of the Criminal Justice Act 1967.  The appellant appeals against sentence by leave of the single judge.

2.  The facts of the case are as follows.  The injured child was the appellant's daughter.  She was born on 20 November 2003.  On 29 January 2004, paramedics were called to the appellant's home.  They found the child to be unresponsive and lethargic, as if she had had a fit.  She was taken to hospital.  The appellant told the staff that the child had been rigid and then went floppy and started to scream.  She was monitored overnight and diagnosed with a viral infection.

3.  On 4 February 2004, the child was again admitted to hospital.  The appellant told the staff that the child had been unwell all day with a temperature and had been jerking.  She was taken to the resuscitation unit and within minutes started to fit.  Meningitis was suspected, but tests ruled that out.  The appellant then admitted that he had shaken the child during earlier crying episodes.  He had also wrapped her too tightly in a blanket and "patted" her more strongly than he should.  He said that sometimes he had lost control of his temper while caring for his daughter.

4.  The hospital further examined the child.  Evidence was found of sub-retinal, inter-retinal and pre-retinal haemorrhages.  Fractures were found above and below the child's knees and above her ankles.  They were found to be two to three weeks old.  A healing fracture to her right arm was also discovered.  There were fractures of different ages to her ribs.  These suggested that they had been inflicted on three separate occasions.  A CT scan confirmed the existence of an extensive subdural haemorrhage and there was raised pressure inside the skull.  The child's injuries indicated shaking or shaking impact injury.  In total the child had eleven fractures.  Those injuries all pre-dated her first admission to hospital.  They had resulted from eight applications of severe force over the course of some weeks.

5.  In due course the appellant was arrested.  In interview he admitted shaking the child in an attempt to revive her.  Fortunately, the child does not appear to have any long-term symptoms of physical harm.

6.  In his basis of plea the appellant accepted that he must have caused his daughter's injuries.  He accepted that on occasions he handled her roughly and subjected her to inappropriate force.  He did not know how any particular injury had been caused.  He had not intended to cause the injuries and was unaware that he had done so.

7.  The judge had before him a number of reports on the appellant.  In passing sentence he said that he took into consideration the basis of the plea and accepted that the appellant had not intended to cause the injuries.  He noted in his sentencing remarks that one of the doctors was of the opinion that one of the fractures would have been caused by applied gripping and twisting, and that the age of the fractures to the ribs varied between two and nine weeks and had occurred on three separate occasions.  Severe squeezing or force was needed to cause such injuries.  Another of the doctors was of the opinion that the subdural haemorrhages were likely to have been caused by shaking.  A consultant stated that such injuries involved a firm shake.  The judge also noted that the appellant admitted to another doctor that he had a violent temper and had lost control whilst caring for his daughter.  The judge observed that it was fortunate that the child had not suffered any long-term physical damage.  We agree.

8.  The case took a very long time to come to court.  The appellant had had the case hanging over him for two and a half years.  That had undoubtedly caused personal hardship.  Mr Shay urges on us that the right course for the judge to have taken then and the right course for this court to take now is the imposition of a suspended sentence.  For that course to have been taken exceptional circumstances would have to be identified.  We do not think that they exist.  The factors put forward of the appellant addressing his temper, the need for the re-uniting of the family, and the suggestion that it might be in the child's best interests do not, in our view, come anywhere near the rare exceptional circumstances which enable a suspended sentence of imprisonment to be imposed for such an offence. 

9.  We have read the pre-sentence report, the prosecution opening and the judge's sentencing remarks, all of which we have summarised.  We have also been referred to R v Graham [1997] 2 Cr App R(S) 264.  Graham is not a guideline case.  There are, however, some similarities in the facts of that case to the facts of this.  In that case there were two other children besides the injured child.  The father saw all three children nine hours daily without supervision.  That is not the case here.  We do not see that Graham has any impact on this case.  

10.  There have been care proceedings before the County Court.  That court decided that the child should stay with the mother and that there should be phased rehabilitation of the father with his daughter.  That long-term rehabilitation is, in the view of the County Court Judge, in the best interests of the child.  The child is living with her mother in the grandparents' house.  There has been some rehabilitation at weekends which has been supervised by the mother-in-law, no doubt with some help from the Social Services.  

11.  The judge was unable to find exceptional circumstances to justify suspending the sentence here and as noted above we agree with that finding.  We have noted the attempts to re-establish the family and we have noted the appellant's attempts to control his temper.  We have seen from the pre-sentence report that he is remorseful and acknowledges his poor temper control.

12.  This is a difficult case, but we think that the judge was right to impose an immediate custodial sentence.  These were bad injuries, as indicated by the medical report.  Inappropriately severe force inflicted over several weeks caused eleven fractures on eight separate occasions.  The sentence was reduced by the judge from that which he might otherwise have imposed.  There had been a severe delay in the matter coming to court; it had hung over the appellant.  The judge said that he would have sentenced him to three years' imprisonment had it not been for that.  As it was he sentenced him to two years'  imprisonment.

13.  In our judgment these were very serious injuries inflicted over a significant period.  They merit custody.  We regard it as in the public interest that a custodial sentence should be passed.  We consider that the judge was right in the sentence he passed.  Accordingly the appeal is dismissed.