Neutral Citation Number: [2016] EWCA Crim 526
No: 201503561 A5 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday 22nd March 2016

B e f o r e:

VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
LADY JUSTICE HALLETT DBE 
and
MR JUSTICE FLAUX
SIR DAVID MADDISON 
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R E G I N A 

v 

MATTHEW LEON CHALLIS 
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Computer‑Aided Transcript of the Stenograph notes of
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Mr M Pardoe appeared on behalf of the Applicant
Mr R Kelly appeared on behalf of the Crown 
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J U D G M E N T (As approved by the Court)
1.	THE VICE PRESIDENT:  Section 5 of the Domestic Violence, Crime and Victims Act 2004 was amended by section 1 of the Domestic Violence, Crime and Victims (Amendment) Act 2012 so that the offence of causing or allowing the death of a child or vulnerable adult was extended to cover cases where a child or vulnerable adult suffers serious physical harm.  A person found guilty of an offence under the section of causing or allowing a person to suffer serious physical harm is liable on conviction to a term of imprisonment not exceeding ten years.  
2.	This is one of the first cases to be referred to the appellate courts in which an applicant has been convicted of an offence under section 5.  The applicant was sentenced by the trial judge, Singh J, to three years' imprisonment.  The issue for us is the appropriate level of sentence for a father convicted after trial of causing his three‑and‑a‑half‑month‑old son to suffer serious physical harm.
3.	The facts are as follows.  Ollie was born in November 2012 the son of Ms Danielle Moss and the appellant.  On 19th March 2013 Ms Moss left the applicant in sole care of Ollie when she went to work; this was only the second time the applicant had been the baby’s sole carer.  Later that day she and the applicant took Ollie to the Accident and Emergency department of their local hospital.  Medical staff noted that he was irritable, unhappy, difficult to handle, distressed, pale, and with mottled limbs; he was screaming.  Bruises were noted to his ears, face, groin and thigh.  
4.	The parents told medical staff that Ollie had not slept well the night before.  Ms Moss had fed him at 7.00 am and left him in the applicant's care from 9.00 am.  The applicant claimed he had fed Ollie at 11.30am and then again at 3.00 pm.  He said that at 3.30 pm he noticed Ollie had become stiff, stretched his arms, legs and back, his eyes were rolled back and he was not responsive.  Ollie had what the applicant described as a seizure lasting for some six or seven minutes and then appeared to be back to himself.  He said he caused the bruises to Ollie's cheeks as he tried to open his mouth to prevent him swallowing his tongue.  He contacted Ms Moss and then telephoned the hospital and they suggested that Ollie be brought in.  They arrived at hospital just after 5.00 pm.
5.	A CT scan was performed on Ollie's brain and numerous potential bleeds were discovered.  There was evidence of a single acute fresh subdural haemorrhage, or bleed, over the left side of the brain.  Fortunately, no active intervention was required, but the child did have to remain in hospital for a further six days.  
6.	The applicant and Miss Moss were arrested at the hospital.  The applicant was interviewed and denied strongly that he had handled his son inappropriately.  He attributed the bruising on his son's ears to a vaccination that Ollie had had a couple of weeks beforehand.  He also stated that as he was putting Ollie down in between seizures, he might have caught Ollie's penis in the zip of his own hoodie.  He denied vehemently that he had shaken Ollie.  
7.	There were a number of medical reports at trial.  The prosecution experts maintained that the injuries to Ollie's brain and body were not caused accidentally.  They believed that the brain injury had been caused by shaking and this had caused Ollie to fit.  They also were of the view that the unexplained bruising to Ollie's ears and to his groin were caused by gripping or pressure which would have caused pain, and had been inflicted in spite.  
Sentencing
8.	The applicant was 34 years old at the time of sentence and was not a man of previous good character. He has previous convictions for offences for assault and battery, albeit from some years ago, and a conviction for possession of cannabis with intent to supply, for which he was sent to prison for 12 months.  
9.	A pre‑sentence report indicated that although the applicant could understand why he had been found guilty and displayed some remorse, he continued to deny any wrong doing. The author of the pre‑sentence report assessed him as presenting a medium risk of harm but a low likelihood of future re‑offending. There were a number of other reports and references before the trial judge.
10.	At the judge’s invitation, both the defence and the prosecution produced a note for sentencing.  There is no Definitive Guideline or any guidance in the authorities directed specifically at this offence.  However, both parties agreed that some assistance could be found in the Definitive Guideline on Assault, in particular at pages 7 to 10. They relate to the offence of inflicting grievous bodily harm under section 20 of the Offences Against the Person Act 1861 for which the maximum sentence is five years imprisonment. Using the Assault guideline, Mr Kelly, for the Crown, submitted that this offence would fall into category 1, with a starting point of three years and a range of two and a half years to four years' custody. The judge agreed.  
11.	Appeal
12.	We have been provided with some additional material for the purposes of this appeal namely a report of how the applicant has been responding to his time in prison and a number of photographs which show the applicant with Ollie since the offence was committed.
13.	The grounds of appeal as advanced by Mr Pardoe are two‑fold: first, that the judge was wrong to conclude that this was a category 1 offence within the Assault Definitive Guideline, and, second, that the judge failed to give sufficient weight to the developing relationship between father and son.
14.	As far as the categorisation of the offence is concerned, Mr Pardoe accepted that there were factors that might indicate that this was an offence in which greater harm was caused. Ollie was only three months at the time and was particularly vulnerable.  He also acknowledged that an overall assessment of the circumstances of the offence might lead a judge to conclude the applicant’s culpability was high.  However, he warned against any element of double counting.  The applicant was convicted of an offence under section 5 which by its very nature involved harm being caused in a domestic setting by a carer of a vulnerable child. 
15.	Mr Pardoe also acknowledged two other matters that would cause the court concern. On the jury’s verdict, the applicant had not only caused a serious injury (the brain bleed) but he had caused injuries to the end of Ollie's penis and to the tips of his ears, suggestive of a degree of spite. Further, this is not the first time the applicant has been guilty of an offence of violence.  Nevertheless, he invited us to place very considerable weight upon the fact that the applicant is remorseful as to what happened to Ollie, that he had had little experience of looking after a small baby before Ollie was left in his sole care and that whatever happened was an isolated incident and will not be repeated. Things have changed. Despite his conviction, both the applicant and Ollie's mother have ensured that there is a continuing and loving relationship between Ollie and his father.  A long sentence of imprisonment and enforced separation may have long‑term consequences for Ollie. 
16.	For all those reasons, Mr Pardoe submitted that this was at worst a category 2 offence within the Assault Guideline for which there is an eighteen months custody starting point, and a range of one to three years. He invited the court to find that a sentence of no more than two years would be appropriate.
Conclusions
17.	In giving our conclusions, we must first remind those present who have an interest in this application that the jury convicted the applicant of a very serious offence. The sentence must reflect that fact. 
18.	In our judgment, there is a serious flaw in Mr Pardoe's argument.  Having warned the court to guard against double counting, he has given insufficient weight to the factors that make this such a serious offence and one that has a ten year maximum sentence. Having accepted that the Assault Guideline for a section 20 offence does not apply directly to a section 5 offence he has then placed far too great a reliance upon it.  
19.	The Assault Guideline, as everyone, including the trial judge in his very careful sentencing remarks, recognised, provides very limited assistance; it is by no means determinative of the starting point or the appropriate range.  Another Guideline that might be of some relevance is the "Overarching Principles ‑ Assault on Children and Cruelty to a Child: Definitive Guideline" produced by the Sentencing Guidelines Council.  
20.	Cruelty to a child under section 1(1) of the Children and Young Persons Act 1933 has the same maximum penalty to the offence in this case, namely ten years' imprisonment. However, any assistance is again limited because the three categories of seriousness do not apply easily to the facts of this offence.  We note that the second category of seriousness has a three year custody starting point and a range of two to five years.  
21.	We return to the stark facts of this offence. The applicant had sole care of a very young and vulnerable baby. He shook the baby with sufficient force to cause a bleed in the baby’s brain.  It is fortunate that, as far as the doctors can tell, Ollie should suffer no lasting consequences, but the applicant did not know that when he shook Ollie. His actions could have had disastrous consequences.  We also note that the applicant’s shaking of Ollie cannot not have been a split second loss of control by an exhausted and distraught parent and immediately regretted.  Before or after the shaking, the applicant deliberately inflicted pain on his own son by pinching his ears and his penis.   
22.	Those who shake, cause serious injury and deliberately inflict pain on a tiny baby must expect to be treated as highly culpable.  Ollie was extremely vulnerable and it is the mark of any civilised society that it protects the most vulnerable in that society.  In our judgment, no complaint can possibly be made that a sentence of three years' imprisonment following a trial was manifestly excessive; if anything it was merciful. We refuse leave.  
23.	Finally, we should add this. The single judge, in referring the case to us, invited the court to consider whether or not we should provide guidance on the overall level of sentences for offences under section 5.  Unfortunately, we have insufficient material before us to enable us to do so. It may well be something that the Sentencing Council will wish to pursue.  This judgment should not be taken as an indication that it is our view that the appropriate level of sentence for an offence of this kind is three years custody; our conclusion is simply that the sentence of three years passed is not manifestly excessive.