IGG, R. v

Factual and Procedural Background

On 12 April 2020 the Appellant, then aged 23, violently shook her 4½ month-old daughter (the deceased infant), who became floppy and died six days later. At the time the Appellant was living with her partner, the Co-Defendant, the deceased infant and an approximately 21-month-old older sibling; she was also a few months pregnant. An anonymity order made under section 45 of the Youth Justice and Criminal Evidence Act 1999 protects the identity of the older sibling and of a daughter subsequently born to the Appellant and that order was confirmed as continuing in these proceedings.

The Appellant and the Co-Defendant were tried together before Judge Saini and a jury in The Court in The City. Each faced a charge of manslaughter and, alternately, a charge under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child). The Appellant was convicted of manslaughter; the prosecution did not pursue manslaughter against the Co-Defendant (who was acquitted of that count on the judge's direction) and the jury acquitted the Co-Defendant of the s.5 offence. The sentencing judge found that at bathtime the Appellant had shaken the deceased infant while the older sibling was present and the Co-Defendant was elsewhere in the house.

The Judge sentenced the Appellant to 15 years' imprisonment. The Appellant obtained leave to appeal against sentence.

Legal Issues Presented

1. Whether the sentencing judge gave insufficient weight to mitigation (including neurodiversity, immaturity/age, caregiving evidence, personal circumstances, and delay) such that the 15-year custodial sentence was manifestly excessive.
2. Whether the sentencing judge was wrong to reject the psychologist's opinion that the Appellant's diagnosed conditions (autistic spectrum disorder and ADHD) materially reduced her culpability.

Arguments of the Parties

Appellant's Arguments (Attorney Aubrey)

• The Judge failed to give proper weight to the forensic psychologist's report (Attorney Josling) diagnosing AuDHD and concluding a high degree of connection between the Appellant's neurodiversity, co-morbid conditions and the offending.
• The Judge failed to give adequate weight to the Appellant's age (23 at the time of offending) and immaturity under the relevant Guideline for 18–25 year-olds.
• The Judge under-weighted evidence from experienced health professionals showing the Appellant's prior care of her children and that the deceased infant had been thriving.
• The Judge failed to give sufficient weight to the Appellant's personal circumstances and the isolating pressures of the first Covid lockdown, together with the impact of lengthy delay before sentence.
• The Judge did not sufficiently account for the disproportionate impact that custody would have on the Appellant given her neurodiversity and mental health.

Crown's Arguments (Attorney Osborne)

• The sentencing judge had the benefit of seeing and hearing the Appellant at trial and was well placed to assess credibility and the relevance of the psychologist's report; he was entitled to reject that the diagnoses reduced culpability.
• The Appellant admitted awareness that babies should not be shaken; there was no evidence that her impairment meant she could not appreciate the risk to a baby.
• Many test results in the psychologist's report were borderline; the report did not adequately explain the asserted connection between diagnosis and offending, particularly while the Appellant continued to deny responsibility.
• Evidence of prior good caregiving was undermined by a finding of an earlier shaking incident and by misleading conduct (a fabricated paternity test).
• Delay did not warrant mitigation given the necessary family proceedings and expert inquiries; the contested nature of the case largely caused the delay.
• The sentencing judge took all mitigation into account and reasonably limited any discount for the impact of custody given the length of the sentence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The appellate court reviewed the sentencing judge's application of the Sentencing Guideline for Unlawful Act Manslaughter (the judge placed the offence in Category B: starting point 12 years; range 8–16 years) and his consideration of the Guideline on offenders with mental, developmental or neurological disorders and the Guideline on young adults. The sentencing judge had ordered and considered a detailed psychological report by Attorney Josling diagnosing autism spectrum disorder and ADHD (AuDHD) and noting executive function and impulsivity issues, but concluded the report did not explain why the Appellant had shaken the infant and did not reduce culpability.

The judge identified five aggravating features warranting uplift to the top of the category range: (1) prior shaking injury to the infant shown by pathological evidence; (2) significant physical suffering to the infant before death; (3) particular vulnerability of the victim as a baby; (4) presence of the older sibling (given limited weight); and (5) the Appellant's attempt to blame the Co-Defendant. He also recorded mitigating features (loving motherhood at times; no previous convictions; lack of premeditation; youth and immaturity; impact of delay; mental health and personal challenges) but treated mitigation as limited because of the earlier shaking incident and other adverse factual findings.

The appellate court accepted that the sentencing judge was well placed to evaluate the weight of competing features, including the psychologist's evidence, having observed the Appellant at trial and considered the contested accounts. The court rejected the submission that the judge had failed to give sufficient weight to the neurodiversity diagnosis or to youth/immaturity; it endorsed the judge's conclusion that the report did not demonstrate a reduction in culpability. The appellate court accepted only that custody might be more onerous for the Appellant than for others with no such conditions, but observed that neurodiversity is common in the prison population and concluded the mitigating effect was limited. Balancing aggravating and mitigating factors, the appellate court held the sentence fell within the appropriate range for the offence and offender profile.

Holding and Implications

DISMISSED

Holding: The appeal against sentence is dismissed and the sentence of 15 years' imprisonment stands.

Implications: The direct consequence is that the Appellant's custodial sentence is upheld. The opinion records that the court found no basis to reduce culpability on account of the diagnosed neurodiversity or the other mitigation relied upon; no new precedent was established beyond the application of existing Sentencing Guidelines to the facts of this case.