ZB, R. v

Factual and Procedural Background

This is an appeal against a sentence imposed by the trial judge on 10 December 2021, following the appellant's guilty pleas to two serious offences: grievous bodily harm with intent under section 18 of the Offences against the Person Act 1861, and sexual assault of a child under 13 by penetration contrary to Article 13 of the Sexual Offences (Northern Ireland) Order 2008. The appellant was sentenced to 19 years’ imprisonment with an extended licence period of five years, sentences to run concurrently.

The offences involved the appellant, the father of a 12-day-old baby, who inflicted multiple severe injuries on the infant over the night of 29 September 2018 into the morning of 30 September 2018. The baby was taken to hospital in critical condition, requiring intensive care and ventilation. The injuries included a traumatic head injury likely caused by shaking, multiple fractures, and forceful penetration of the baby's anus by an object described by medical experts as at least half an inch in diameter. The child survived but faces ongoing developmental and neurological concerns.

The appellant initially denied the sexual offence but admitted to being rough with the baby. The prosecution relied on extensive medical evidence and no basis of plea was offered by the defence. The appellant was assessed for risk and found to pose a serious risk of serious harm. The trial judge imposed ancillary orders including inclusion on a barred list for working with children and a Sexual Offences Prevention Order.

Legal Issues Presented

1. Whether the total sentence of 19 years’ imprisonment was manifestly excessive, particularly in light of the principle of totality when sentencing for two equally serious offences concurrently.
2. Whether the trial judge erred in identifying premeditation and lack of remorse as aggravating factors.
3. Whether the discount for the guilty plea was inadequate.
4. Whether the appellant should have been assessed as posing a significant risk of serious harm to the public.

Arguments of the Parties

Appellant's Arguments

• The total sentence failed to properly apply the principle of totality, resulting in a manifestly excessive sentence.
• The trial judge incorrectly treated premeditation and lack of remorse as aggravating factors.
• The 15% reduction for the guilty plea was insufficient considering the circumstances.
• The appellant should not have been assessed as posing a significant risk of serious harm.

Respondent's Arguments

• The sentence was appropriate given the exceptional seriousness of the offences.
• Premeditation and lack of remorse were correctly considered in the sentencing context.
• The discount for the guilty plea was reasonable given the timing and nature of the plea.
• The assessment of dangerousness was properly made based on expert evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the exceptionally serious and horrific nature of the offences, involving a 12-day-old baby who suffered life-threatening injuries, including a severe sexual assault. It emphasized that both offences were equally serious and that no single offence should be considered the headline offence. The sentencing exercise required application of the totality principle, ensuring a just and proportionate global sentence rather than a mechanical addition of separate sentences.

In assessing the appropriate sentence for the grievous bodily harm offence, the court relied on R v Darren Fegan, which established a sentencing range of 7-15 years for similar offences against children. Given the high culpability and harm, the court found it reasonable for the trial judge to place this case at the top of that range.

For the sexual assault by penetration, the court noted the absence of direct sentencing authority in Northern Ireland but accepted the approach in R v GM that sentencing must be tailored to the facts with flexibility. The court found the culpability and harm to be at the highest level, justifying a sentence of at least 15 years before reductions.

The court agreed with the trial judge’s decision to impose concurrent sentences due to the timing and related nature of the offences. It applied the totality principle as guided by the England & Wales Totality Guidance 2012, which requires sentences to be just and proportionate overall.

The court found errors in the trial judge’s identification of aggravating factors: the judge erred in concluding there was premeditation, as the evidence did not support deliberate planning of the assault; however, the sexual assault was inherently intentional. The court also held that lack of remorse is not an aggravating factor, citing R v Walker.

The court identified an aggravating factor omitted by the trial judge: the appellant’s attitude at hospital and failure to accept responsibility early, which contributed to the removal of the mother’s children from her care.

Despite these errors, the court concluded the overall sentence was not manifestly excessive. The sentencing range proposed by the appellant (15-18 years) was insufficient to reflect the gravity and deterrence required. The court found the 22.5 years starting point before plea reduction justified and noted the appellant’s lack of mitigation apart from the guilty plea.

Regarding the discount for the guilty plea, the court referred to Article 33 of the Criminal Justice (Northern Ireland) Order 1996 and the guidance in R v Maughan. Given the plea was entered late, at trial, and limited admissions were made earlier, the 15% reduction was appropriate. The court rejected arguments for a higher discount, including those based on Covid-19 related delays.

On the issue of dangerousness, the court accepted the trial judge’s discretionary assessment, supported by expert evidence, that the appellant posed a serious risk of serious harm, justifying the extended custodial sentence of five years.

Holding and Implications

The court DISMISSED THE APPEAL, thereby confirming the sentence of 19 years’ imprisonment with an extended licence period of five years imposed by the trial judge.

The direct effect of this decision is that the appellant must serve at least half of the custodial term before eligibility for parole, subject to risk assessment by the Parole Commissioners. If parole is denied, the appellant may serve the full custodial term in prison. After release, the appellant remains under licensed supervision for five years and may be recalled for breaches of licence conditions.

No new legal precedent was established beyond affirming the application of established principles of totality, sentencing discretion, and assessment of aggravating factors in the context of extremely serious offences against a very young child.