Fegan, R v

Factual and Procedural Background

This appeal arises from a determinate sentence of 13 years and 6 months imprisonment with an extended licence of 3 years imposed on the Appellant following a guilty plea to grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861 ("OAPA"). The Appellant was originally committed for trial on two counts: attempted murder and causing grievous bodily injury with intent. At arraignment, the Appellant pleaded not guilty to both counts but later pleaded guilty to the grievous bodily harm count, with the attempted murder count left on the books.

The victim was a young child born in 2012, who suffered severe injuries inflicted by the Appellant. The child’s mother and father had separated, and the Appellant had begun a relationship with the mother shortly before the incident. On the day of the offence, the Appellant was at the mother’s house where the child was present. The Appellant assaulted the child violently after the child would not stop crying. The mother discovered the child injured and sought help. The Appellant was later interviewed and denied causing the injuries, falsely accusing the mother of harming the child.

The child sustained catastrophic brain injuries requiring hospitalisation and cranial reconstruction, resulting in permanent disabilities including hemiplegia, visual impairment, cognitive limitations, and risk of epilepsy. The Appellant had a history of difficult upbringing, diagnosed mental health conditions, extensive criminal convictions including multiple assaults and domestic abuse, and was assessed as a high risk of reoffending.

The trial judge found the Appellant’s culpability and harm caused to be very high, applied a starting point sentence of 16 years, reduced by 15% for a late guilty plea, resulting in the 13 years and 6 months sentence. The judge also considered the Appellant’s dangerousness and risk of serious harm.

Legal Issues Presented

1. Whether the sentencing guideline in DPP References Numbers 2 and 3 of 2010 (McAuley and Seaward) was an appropriate starting point for sentencing in a section 18 OAPA offence involving a very young child.
2. Whether the sentence imposed was manifestly excessive given the circumstances of the offence and the Appellant’s background.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that the guideline judgment in DPP References Numbers 2 and 3 of 2010, primarily concerned with violence among young men in public settings often involving alcohol or drugs, was not appropriate for cases involving very young children.
• The Appellant relied on older authorities involving lesser offences under section 20 OAPA, noting that those cases did not involve intent to cause grievous bodily harm and had lower maximum sentences, thus limiting their relevance.
• The Appellant cited the English Court of Appeal decision in R v RD, involving severe injury to an infant, to illustrate sentencing principles, highlighting differences such as the Appellant’s prior convictions and the severity of harm.
• The Appellant also referred to a Scottish case, SD v HM Advocate, involving catastrophic injury to a young child but noted this case did not require intent to cause grievous bodily harm and thus offered limited assistance.

Prosecution's Arguments

The opinion does not contain a detailed account of the prosecution's legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged that the guideline judgment in DPP References Numbers 2 and 3 of 2010 was developed primarily in the context of alcohol-fuelled violence among young men in public settings, which differs from offences involving very young children. The court emphasized the particular vulnerability of young children to grievous bodily harm, noting their lack of defence and the greater impact of severe force due to their developmental stage.

The court reasoned that sentencing policy must reflect this vulnerability, justifying a general sentencing range of 7 to 15 years for section 18 offences against very young children. The precise sentence within this range depends heavily on the extent of harm caused and the offender's character.

In the instant case, the court found multiple aggravating factors: significant force applied to a toddler, the Appellant’s imposition despite the mother’s objections, the Appellant’s intoxication, the victim’s permanent life-changing injuries, and the Appellant’s prior convictions for assaulting young children and domestic violence. Additionally, the Appellant’s false accusations against the mother to pervert the course of justice constituted a further aggravating feature normally warranting consecutive sentencing.

Considering all factors, the court concluded that the starting point at the top end of the sentencing range was justified. The trial judge’s choice of a 16-year starting point, adjusted for a late guilty plea, was deemed stiff but not manifestly excessive. The court found no grounds to interfere with the sentence or the discount applied.

Holding and Implications

The appeal was DISMISSED.

The court upheld the sentence of 13 years and 6 months imprisonment with an extended licence of 3 years imposed on the Appellant. The decision confirms the applicability of the established sentencing guidelines to offences involving grievous bodily harm with intent against very young children, with appropriate consideration of the victim’s vulnerability and the offender’s background. No new precedent was established beyond affirming the appropriateness of the sentencing range and the trial judge’s discretion in applying it.