AD, R. v

Factual and Procedural Background

This is an anonymised summary of an appeal concerning sentence in the Crown's prosecution of serious injuries to an infant. The appeal was heard by a three-judge court composed of Judge Keegan, Judge Kinney and Judge McLaughlin. The factual and procedural history, as set out in the opinion, is as follows.

The Appellant was charged on an indictment with five counts including two counts of grievous bodily harm, two counts of causing or allowing a child to suffer serious physical harm contrary to section 5(1) of the Domestic Violence, Crime and Victims Act 2004 and one count of wilful ill-treatment and neglect of the Child. At arraignment the Appellant pleaded not guilty to all counts. Shortly before trial the prosecution indicated it would not proceed with four of the counts and the Appellant was rearraigned and pleaded guilty to a single remaining count under section 5(1) of the 2004 Act (causing or allowing a child to suffer serious physical harm). He was sentenced by Judge Devlin on 26 August 2025 to a determinate custodial sentence of 14 months. The Appellant sought leave to appeal the sentence; a single judge refused leave and the Appellant renewed the application to the Court of Appeal.

The Child, born 4 April 2019, was taken to hospital on 10 June 2019 with swelling to the left leg. Investigations disclosed multiple fractures (including fractures to ribs, femur, tibiae, clavicle, radius) and brain injury. The medical evidence before the sentencing court indicated a number of fractures of differing ages and at least some fractures that were recent; medical experts differed on whether the brain injury arose in a single episode or in separate episodes, but the sentencing judge accepted that the brain injury was likely caused in an episode concurrent with fractures. The Appellant and his co-defendant (the Co-defendant) initially gave no explanation for the injuries; later the Appellant disclosed a fall from a bed and both parents reported regular cannabis use while caring for the Child. Medical opinion discounted a fall from a bed as the cause of these injuries.

Legal Issues Presented

1. Whether the trial judge erred in assessing the Appellant's culpability as moderate rather than low within the spectrum of liability under section 5(1) of the Domestic Violence, Crime and Victims Act 2004.
2. Whether the sentence was wrong in principle because insufficient weight was given to the pre-sentence report, the report of Dr Pollock, and the Appellant's prospects of rehabilitation.
3. Whether the judge failed to appreciate the effect on the Child of both parents being imprisoned, such that exceptional circumstances existed warranting a non-custodial or suspended sentence.

Arguments of the Parties

Appellant's Arguments

• The judge erred in assessing the Appellant's culpability as moderate/medium; the Appellant's culpability fell at the lower end of the spectrum (low culpability) because the mens rea for a section 5 offence is negligence (what the defendant ought to have foreseen) and there was no evidence to suggest greater culpability.
• The degree of force used in the assaults on the Child should not increase the Appellant's culpability for an offence of allowing harm where he did not admit causing the injuries; some medical evidence indicated an absent or non-obvious presentation of at least some injuries to someone not present at their infliction.
• The judge failed to give weight to the pre-sentence report and the psychiatric/psychological report of Dr Pollock, which addressed vulnerabilities and mental state; the judge therefore misapplied mitigation and failed to properly factor rehabilitation prospects into sentencing.
• The judge failed to recognise exceptional circumstances arising from the impact on the Child of imprisoning both parents, especially given the Child's subsequent placement with the paternal grandmother and apparent recovery; these factors warranted either suspension of a custodial sentence or continuation of the Appellant's existing probation order.

The opinion does not contain a detailed account of the Crown's separate submissions in reply; the court's consideration records the agreed evidential and legal context (including the Appellant's guilty plea and the factual matrix) rather than a discrete, itemised Crown argument section.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's reasoning proceeded in stages consistent with the law and the facts placed before the sentencing judge.

First, the court restated the statutory elements of section 5 of the Domestic Violence, Crime and Victims Act 2004: the offence arises where a household member was (or ought to have been) aware of a significant risk of serious physical harm to a child or vulnerable adult and failed to take reasonable steps to protect them; the offence operates to address situations where it is difficult to prove which household member inflicted the harm.

The court emphasised that the relevant mens rea (for those not the direct perpetrator) is objective: whether the defendant ought to have been aware of a significant risk of serious injury and failed to take reasonable steps. The court noted authorities explaining that the assessment is intensely fact-specific and that the protective steps reasonably expected will depend on the defendant's personal characteristics and the factual matrix (citing Khan).

The court explained that the objective test had limited further application where, as here, the Appellant had pleaded guilty. By pleading guilty to the section 5 offence the Appellant accepted that he knew or ought to have known of a significant risk of serious injury and that he failed to take reasonable protective steps. Thus the principal task was to determine where on the culpability spectrum the Appellant fell, not to re-litigate mens rea.

In assessing culpability, the court reviewed the factual matrix relied on by the sentencing judge: the breadth and seriousness of injuries (numerous fractures of varying ages, bruising and brain injury), the fact that injuries were sustained on more than one occasion (giving continuing opportunities to act), evidence that the Appellant and his partner used cannabis while caring for the Child, a witness (a cousin) who heard unusual crying two nights before hospital presentation, some delay in seeking medical assistance and the Appellant's initial denials and minimisation in police interview and in the pre-sentence interactions. The judge had accepted medical evidence discounting a fall from a bed as cause of the injuries. The court recorded that the probation assessment placed the Appellant at medium risk of reoffending and that Dr Pollock's report did not identify personality dysfunction or a cognitive impairment that would significantly influence parenting conduct.

The court concluded that, on this factual matrix, the sentencing judge was entitled to treat the Appellant's culpability as moderate rather than low. The court rejected the Appellant's contention that the mere fact of sentencing for an offence of allowing rather than causing should lead to a lower culpability assessment where the facts were otherwise indicative of knowledge or constructive awareness and repeated opportunities to take steps to protect the Child.

The court also addressed the Appellant's submission that the judge failed to give weight to the pre-sentence report and Dr Pollock's report. It found that both reports were before the judge and were referenced in the sentencing remarks. Although the court observed that the judge might have been more explicit in his reference to the pre-sentence report, the judge had in fact considered the contents of those reports (including the Appellant's minimisation, drug use and the probation officer's assessment) in arriving at sentence.

On exceptional circumstances, the court considered the Appellant's point that imprisoning both parents could have disproportionate effects on the Child, and that the Child had made a notable recovery and was in kinship placement. The court held that exceptional circumstances are a matter for the trial judge to consider; here there was insufficient evidence of exceptional circumstances (no evidence of exceptional vulnerability in the Appellant, no cognitive impairment, and no evidence that imprisonment would produce a disproportionate effect on the Child that outweighed the need to protect vulnerable members of society). The judge had acknowledged youth and immaturity in mitigation. The Court of Appeal found no legal error in the judge's assessment.

Finally, the court reviewed the sentencing arithmetic recorded by the judge: a starting point of 20 months custody for the Appellant, reduced to 14 months reflecting the guilty plea and other mitigatory considerations. The Court concluded this was within the acceptable range for the case as found by the sentencing judge.

Holding and Implications

APPEAL DISMISSED.

Holding: The Court granted leave to appeal but dismissed the appeal on its merits. The Court affirmed that the sentencing judge was entitled to assess the Appellant's culpability as moderate and to impose the 14 month determinate custodial sentence following reduction from the judge's stated starting point.

Implications: The direct consequence is that the Appellant's sentence of 14 months remains in force. The Court found no error in principle in the sentencing approach taken by the trial judge: the trial judge adequately considered the medical and probation reports, mitigation (including youth and remorse to a qualified degree) and aggravating factors (extent and multiplicity of injuries, drug use, delay in seeking treatment), and reasonably concluded that exceptional circumstances warranting a non-custodial outcome were not established. The opinion emphasises that offences under section 5 are highly fact-specific; the judgment does not purport to create new principle or a novel precedent but applies established authorities to the facts of this case.