Factual and Procedural Background
Judge [Last Name] delivered this opinion on an application by the Attorney Solicitor General for leave, under section 36 of the Criminal Justice Act 1988, to refer as unduly lenient a total custodial sentence of 26 months imposed by the Crown Court at The City by Judge [Last Name] in respect of offending by the Defendant against his infant daughter (the Victim). A section 45 anonymity order for the Victim was in place and extended to these proceedings.
The factual narrative (as recorded by the sentencing judge) was that on the evening of 20 August 2024 the Defendant, then aged 37, was at home caring for three children. The Defendant was captured on clear baby-monitor footage forcibly handling the Victim (not yet eight months old): he grasped and pulled the Victim, threw her onto bedding, placed a hand over her face and for about five seconds covered her mouth and nose (a suffocating move). The clip lasted about 31 seconds; the act of assault about 14 seconds. The next day the Victim had a superficial abrasion under the nostril and bruising consistent with a strong grip across the face. About an hour before the incident the Defendant had made internet searches about putting a baby up for adoption. The Defendant pleaded guilty to child cruelty (Children and Young Person's Act 1933 s.1(1)) and intentional suffocation (Serious Crime Act 2015 s.75A(1)(b)) and was committed for sentence to the Crown Court.
At Crown Court sentence, Judge [Last Name] treated the ill-treatment offence as the lead count, placed the offending in harm category 2, and concluded culpability was category 2B (significant force) with a starting point of three years. The judge uplifted by six months for the Victim's young age, then reduced for mitigation and plea credit to impose 26 months' custody (concurrent ten months on the suffocation count). The Attorney Solicitor General sought leave to refer the sentence as unduly lenient.
Legal Issues Presented
- Whether the force used against the Victim should properly be characterised as "very significant" (category B culpability) rather than "significant" (category C), thereby placing the ill-treatment offence at category 2A (or higher) under the applicable Sentencing Council guideline.
- Whether any such mischaracterisation resulted in a sentence that was unduly lenient such that leave should be granted to refer the sentence under section 36 of the Criminal Justice Act 1988.
Arguments of the Parties
Prosecuting Attorney
- Argued the Recorder erred in failing to treat the offending as involving very significant force, and therefore should have categorised it as category 2A with a higher starting point (six years), rendering the imposed sentence unduly lenient.
- Contended the presence of both very significant force and a deliberate disregard for the Victim's welfare (including premortem internet searches about adoption and the Defendant's remark about needing to "get rid of" the Victim) supported very high culpability or at least the higher category.
Defence Attorney
- Maintained the Recorder was correct to characterise the force as "significant" (category C), justifying classification as category 2B with a lower starting point and resulting sentence.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court watched the footage closely and concluded the force used was properly categorised as very significant. The court explained that significance depends not only on degree of force but also on (i) the age and vulnerability of the Victim and (ii) the nature of the force used. Suffocating a baby for some five seconds and violently throwing the infant onto a cot combine to make the assault very significant. The court observed it was only good fortune that no serious injury occurred.
However, the court rejected the submission that the offending should be elevated to very high culpability (category A). It analysed the Crown's contention that there was a combination of two category B factors (very significant force and a deliberate disregard for welfare) and concluded that, in this case, the alleged disregard for welfare was not a separate feature distinct from the use of very significant force. The court found the prosecution's reliance on pre-incident internet searches and the Defendant's post-incident remark incoherent as establishing a separate deliberate disregard for welfare within the guideline's meaning.
The court further considered and rejected the argument that the force used had an "extreme character" so as to satisfy the category A bullet point concerning the extreme character of one or more culpability B factors. Having reviewed the footage, the court did not regard the conduct as an extreme example that would elevate culpability beyond high to very high.
On that basis, the court concluded the appropriate categorisation remained within category 2B (high culpability) rather than category 2A or category A. The court accepted that the Recorder's numerical sentence calculation and movement within the range were within the ambit of reasonable sentencing choices, allowing for the mitigation of no previous convictions, immediate remorse, and the brevity and isolated character of the incident.
Holding and Implications
LEAVE REFUSED
Decision: The court refused the Attorney Solicitor General's application for leave to refer the sentence as unduly lenient.
Implications: The Crown Court sentence (total 26 months' imprisonment, concurrent ten months for the suffocation count) stands. The court affirmed the legal principles for categorising force in child ill-treatment cases (importance of victim vulnerability and nature of force) but did not establish a new precedent or alter the applicable guideline; it concluded the Recorder's sentence was within the reasonable range available on the facts of this case.