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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> ER, R. v [2012] EWCA Crim 2122 (28 September 2012) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2012/2122.html Cite as: [2012] EWCA Crim 2122

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		28th September 2012

1. LORD JUSTICE ELIAS: On 16th July 2012 this appellant, having been given leave to appeal against sentence by the single judge, was sentenced by His Honour Judge David Wyn Morgan to be sentenced on four counts of cruelty to a person under 16 years, contrary to section 1(1) of the Children and Young Persons Act 1933. She had earlier entered guilty pleas to the counts on 30th April, when the case had been listed for trial and before witnesses were present.
2. The learned judge passed a sentence of 18 months immediate imprisonment on each count concurrent. She was sentenced on the written basis of plea, which was accepted by the prosecution. In addition to the four counts to which she pleaded guilty, there were five other counts which were not pursued by the prosecution and were allowed to be left to lie on the file.
3. The four counts to which she has pleaded, and the incidents to which they related, are as follows: count 2, she accepted that on 6th October 2010, during an argument with her son, C, about concealing dirty washing in his room, she slapped C across the face. At that point C was 15. On count 3, she accepted that on 16th November 2003, following an incident when she discovered that C had concealed clothes that were soiled, she lost her temper with him, grabbed him by the arm and shouted at him. The incident happened on the stairs and she was separated from her son by her husband. On count 4, another incident which occurred in 2003, she caused an injury to another son, L, by slapping or grabbing his ear when he covered his ears and closed his eyes when the defendant was trying to speak to him. On count 6 she accepted that on more than one occasion, after L and C had been fighting - they were about a year apart in age - she had banged their heads together. She said that they had found it amusing on the first occasion.
4. The appellant is the mother not only of these two children but also of three further children: S, who was born on [a date in] 2005; K, who was born on [a date in] 2008 and B, who was born on [a date in] 2010.
5. Matters apparently came to light following a police inquiry because there were concerns that there had been injuries to S in 2011.
6. The prosecution accepted that the only assault which resulted in actual bodily harm was that on L, when as a result of the slap administered to him, he sustained a bruised ear and that was seen by teachers at his school. The assaults in the other counts did not result in either victim receiving any physical injuries.
7. C, in his victim impact statement, referred to years of abuse and said that his mother had behaved like a bully. L said that he felt nervous and reserved. He said, sadly and no doubt accurately:

"I don't think there was any love in the house."

8. The judge, when sentencing, apparently had before him a number of Social Service reports, as well as information from the school and the police. He had been nominated as the trial judge.
9. We do not have that material before us. We do have two further reports which were also before the judge, namely the pre-sentence report and a psychiatric report prepared by Dr Janis Hillier in June 2012.
10. The psychiatric report confirmed that the appellant does not suffer from any mental disorder but suffers from depressive symptoms. She has previously had suicidal thoughts.
11. The pre-sentence report described a woman who herself had been abused as a child, who is quick to anger, has a volatile temper and finds it difficult to cope with stress and anxiety. She was involved in a particularly acrimonious and volatile relationship with her former husband. She claimed that he had exaggerated her treatment of her children and had himself abused her. She said that she had sought help, particularly after the incidents in 2003, from the Social Services and had been aware that her conduct to her children was in certain respects problematic.
12. The judge in passing sentence considered that the appellant was highly culpable. These were young and vulnerable victims. She had abused her position of power and trust over the years. He said that the victims were in fear of the appellant's temper and as a result she had taken away their happy childhood. He considered that she had exhibited only limited remorse, as demonstrated by the fact that she had accused the victims of exaggerating or lying about the complaints. He treated the offences as part of a series, going on for a period of 8 years.
13. Apparently the prosecution had suggested that the sentence fell within category 3 of the guidelines on sentences for cruelty to children, but the judge thought because of the particular psychological harm caused to the victims, they fell into category 2, which is a 3-year starting point and a sentencing range of 2 to 5 years.
14. The judge did give credit for certain mitigating features, which he felt brought the sentence down: her own unhappy upbringing; that her relationship with her husband had not been an easy one; that she had the symptoms of depression and that she had sought help, albeit he thought that her response to Social Services had in certain respects been inadequate. However, he also referred to certain pages in the exhibits before him to demonstrate that as recently as May 2011 she had exhibited loss of temper, which he said chillingly echoed her past behaviour described by the children. He thought that as an act of mercy he would impose a sentence of 18 months.
15. The grounds of appeal have been set out in considerable detail. They include concerns that the judge gave insufficient weight to the previous good character and that in particular, with regard to counts 3 and 4, the judge was unjust in saying that she had shown no remorse, because there was evidence that the appellant had been very upset at the time and she had told the school and Social Services of what she had done. Also counsel submits that it was unfair for the judge to say that she had minimised the gravity of her behaviour by saying that the children had exaggerated her conduct because counsel says - and we are not in a position to dispute this one way or the other - that the papers demonstrate clearly that there were occasions when the children had made allegations which were false and which they apparently subsequently withdrew. In addition, in particular in respect of the counts which occurred in 2003, the appellant was at that stage going through a particularly difficult period with her then husband, in a highly volatile relationship which put considerable strain upon her.
16. We begin with the observation that a defendant must be sentenced only for the crimes for which they have been found guilty. Here, it was for distinct acts of child cruelty, only one of which caused physical harm. Some of these incidents are of a kind which in moments of stress are committed by many loving and caring parents throughout the land. They no doubt regret it afterwards but parenting is a difficult skill and parents who are provoked do not always control their reactions as they would wish.
17. We of course recognise that the judge had background material which no doubt suggested that there may have been other offences committed, some of which, as we have said, were identified but not pursued by the prosecution. We recognise that these offences to which she pleaded may possibly be simply the tip of an iceberg. This was plainly an unhappy home. Here is a mother with a considerable temper who could not provide love and support which her children required.
18. Where the breakdown is sufficiently fundamental in cases of this kind, the consequence is that the children are removed from the parent. That, sadly, is what has occurred here. This appellant is no longer the primary carer for her children: two are in foster care and three others are being looked after by her former husband.
19. The victim impact statements certainly make desperately sad reading. But, with respect, it plainly could not be the case that these particular incidents led to the emotional trauma experienced by these children. It seems to us that these incidents are the symptoms of a much deeper malaise which has infected the whole relationship of these children with their mother.
20. As we have said, the appellant cannot be sentenced for offences to which she has not pleaded guilty. She is not being sentenced for being a poor mother or an incompetent mother or because she is incapable of controlling her temper; she is being sentenced for specific incidents on specific occasions, two of which occurred some 8 years ago,and only one of which in fact caused physical injury.
21. We think, with respect to the judge, that the premise of his sentencing was incorrect; he seems to have sentenced on the basis of years of abuse causing real long term psychological harm. We think that if he had focused on the particular incidents to which the appellant had pleaded, then it would have had to be a sentence falling within level 3 rather than at level 2. Furthermore, given that only one of these incidents caused physical injury and that the others may, we think, without seeking to trivialise them or undermine their significance, be seen as excessive chastisement going beyond appropriate bounds, the sentence of 18 months was simply too long. We also accept that there does seem to have been some remorse, and on the face of it a proper basis for the appellant to allege that some incidents were indeed exaggerated.
22. We can understand why this experienced judge reacted as he did in the light, no doubt, of all the information he had available to him. But we think with great respect to him that he took his eye off the ball and sentenced for a pattern of conduct of much greater gravity and regularity than is revealed by the counts to which this appellant pleaded, particularly when one considers the basis of her pleas.
23. We think that now, in particular since her children have been taken away from her, the right thing to do is to give her a sentence of 5 months' imprisonment, which should secure her immediate release. We note that the author of the pre-sentence report suggested a community sentence. Whether that might have been taken up or not is irrelevant at this stage, but we think that no valuable purpose is served by keeping her in prison any longer. We have been told that she wanted us to see a letter which has not in fact been delivered to us, which suggests that she is now in closer and more positive communication with all her children and that there may be at least early green shoots of a more constructive relationship between them.
24. We are satisfied that this appeal should succeed and taking all the factors in the round, as we do, we substitute a sentence of 5 months for the 18 months imposed by the judge. To that extent this appeal succeeds.