Jamal, Re

Factual and Procedural Background

This opinion concerns an appeal against sentence, with leave granted by the Full Court on 27 October 2022, including an extension of time. The case involves offences committed by the Appellant in relation to her two children, identified as "A" and "B" due to reporting restrictions protecting their identities. The Appellant was convicted following a trial on 4 March 2022 of causing the death of child A, her daughter aged 11 months at the time, and three offences of cruelty to persons under 16, relating to both children and the condition of their living environment.

The Appellant was sentenced on 29 April 2022 to an aggregate term of 5 years and 6 months' imprisonment. The offences occurred in February and March 2019 when the Appellant was 22 years old, living with her daughter A and son B in a flat in London. Child A died from infections that could have been treated had medical help been sought, which the Appellant failed to obtain. The Appellant had been struggling as a single mother, had engaged with Social Services who had referred her for support, but no intervention occurred before the child's death.

The Appellant had a history of depression and was prescribed antidepressants from April 2018. Evidence showed the Appellant was aware of her daughter's illness but did not seek medical assistance. The living conditions for both children were described as filthy and unsuitable. The Appellant was the sole carer, had no previous convictions, and had a difficult personal background including an abusive arranged marriage abroad before returning to the United Kingdom.

The sentencing judge imposed concurrent and consecutive sentences totaling 5 years and 6 months. The Appellant appealed on three grounds challenging the severity of the sentences and the weight given to mitigating factors including her mental health, delay in proceedings, and impact on her children.

Legal Issues Presented

1. Whether the sentencing judge erred in setting the starting point for the offence of causing the death of a child (count 1) at the top end of category 1B and failed to give sufficient weight to the Appellant’s mitigation, including her depression, anxiety, IQ, and prior efforts to seek help.
2. Whether the sentencing judge erred in categorising the neglect offence (count 2) as category 1B rather than category 2B and whether the sentence for this count was manifestly excessive due to insufficient consideration of mitigating factors.
3. Whether the sentences for counts 3 and 4 were excessive, including the failure to properly reflect mitigating factors and the principle of totality in imposing consecutive sentences.

Arguments of the Parties

Appellant's Arguments

• The sentencing judge gave insufficient weight to the Appellant’s long-standing depression, anxiety, and low IQ in determining culpability and sentence severity.
• The judge failed to adequately consider the Appellant’s efforts to seek professional help prior to the offending.
• The judge did not properly account for the impact of the delay of over three years between the offences and sentencing.
• The categorisation and sentence for count 2 were excessive and should have been lower.
• The sentences for counts 3 and 4 were excessive individually and in combination, failing to respect the principle of totality.

Prosecution's Arguments

• The prosecution lodged a Respondent's Notice supporting the continuation of the appeal hearing with their participation but did not submit a further skeleton argument.
• The prosecution accepted the categorisation of the offences but emphasized the seriousness of the offences and the high culpability involved.
• The prosecution acknowledged the Appellant’s depression but maintained that it did not reduce culpability to the extent argued by the Appellant.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court began by reaffirming the reporting restrictions protecting the identities of the children involved. It noted the Appellant’s difficult personal circumstances, including her history of depression, low intellectual ability, and struggles as a single parent, which were supported by medical and psychological evidence. The court acknowledged mitigating factors such as genuine remorse, prior bonding with the children, and attempts to seek help from social services.

The court found that the sentencing judge correctly categorised the offences under the relevant guidelines but held that insufficient weight was given to the mitigating factors, particularly the Appellant’s long-standing depression and mental health issues. The court emphasized that while the offence of causing the death of a child was serious and of high culpability, the mitigating circumstances warranted a reduction from the starting points originally applied.

Regarding counts 3 and 4, the court concluded that the individual sentences were not manifestly excessive and that ordering them to run consecutively was not wrong in principle, but the overall totality principle required adjustment. The court restructured the sentences so that all counts run concurrently, reducing the aggregate sentence to better reflect the totality of the criminality and the mitigating factors.

The court also noted the importance of balancing the best interests of the victims and other children in the Appellant’s care with the seriousness of the offences, emphasizing that a substantial custodial sentence remained appropriate despite mitigation.

Holding and Implications

The court ALLOWED the appeal in part by quashing the original sentences of 5 years on count 1 and 4 years and 6 months on count 2.

The court imposed new sentences of 3 years and 6 months' imprisonment on count 1 and 2 years' imprisonment on count 2. The sentences of 6 months' imprisonment on counts 3 and 4 were upheld but ordered to run concurrently with the other counts. The overall effective sentence was therefore reduced to 3 years and 6 months' imprisonment.

This decision directly affects the Appellant by reducing her custodial sentence to better reflect mitigating circumstances without setting new legal precedent. The ruling underscores the necessity for sentencing judges to carefully weigh mental health and personal circumstances within the framework of sentencing guidelines, especially in cases involving child fatalities and neglect.