FW [2019] EWCA Crim 275

**FW [2019] EWCA Crim 275** concerned an appeal against a sentence of twelve months’ imprisonment imposed in the Crown Court at Truro for cruelty to a child under sixteen years of age, contrary to section 1(1) of the Children and Young Persons Act 1933. The Court of Appeal (Lord Justice Davis, Mr Justice Robin Knowles and Sir Wyn Williams) allowed the appeal and reduced the sentence to six months’ imprisonment.

The appellant, a twenty-four-year-old woman with two daughters, was convicted on 21 September 2018 of wilfully neglecting her two-year-old daughter in a manner likely to cause unnecessary suffering or injury to health by failing to provide adequate medical aid between 14 and 17 October 2016. She was acquitted of a separate count alleging cruelty by exposing the child to the effects of cocaine and benzodiazepines. On 18 October 2018 the Recorder sentenced her to twelve months’ imprisonment. She appealed by leave of the single judge.

The offence arose when the appellant returned home one Saturday morning with Mr G, who was later present at the house that evening and used crack cocaine there. A family friend, Miss H, visited and became worried. The following morning the child was not in her normal condition. She had difficulty waking, could not support her own weight or even her head. When Miss H called at around 11.30am there was no answer, but looking through the window she saw the child lying on a sofa in only a nappy, unable to sit up or react normally. The appellant eventually opened the door. Miss H took the child with her and on returning to her own address found the child still unable to sit up. She telephoned the appellant to say she would call an ambulance, but the appellant told her not to and said she would take the child to hospital herself. The child was violently sick and Miss H phoned for an ambulance. The appellant arrived at Miss H’s address some two hours after Miss H had first suggested summoning medical help. The jury were directed that the relevant facts for count 2 were those up to, but not beyond, the making of that emergency call.

The appellant had experienced a very difficult background throughout her childhood and life. A pre-sentence report noted this history and also recorded that both children were now subject to a guardianship order under which the appellant had contact. The Recorder properly referenced these circumstances in her sentencing remarks.

The appellant raised two grounds of appeal. First, the Recorder had taken into account events that post-dated the emergency call, notwithstanding that the jury had been directed that the offence related only to the period up to that point. Secondly, the Recorder had referred to sentencing guidelines that had not yet come into force at the material time.

The Court of Appeal accepted that there was force in both grounds of challenge. The court fully understood the single judge’s decision to grant leave in these circumstances. It concluded that the sentence of twelve months’ imprisonment was manifestly excessive. Whilst the court acknowledged that the matter could well have resulted in a suspended sentence order, it substituted a sentence of six months’ imprisonment. Given the time already served in custody pending the appeal, the appellant was released immediately. The court regarded both the reduced sentence and immediate release as doing full justice to the particular facts of the case and the particular circumstances of the appellant.

In short, the Court of Appeal reduced a twelve-month immediate custodial sentence to six months on the basis that the Recorder had erred by taking into account matters outside the jury’s factual basis for conviction and by applying guidelines not in force at the material time.