Marina Tilby [2019] EWCA Crim 1623

The appellant pleaded guilty to one count of child cruelty and was sentenced to 2 years and 4 months imprisonment.

The appellant went out drinking with her sister, taking her 4-week old son with her. At the end of the night, her son was placed on a double bed, and the appellant fell asleep beside him. He was found by her sister a short time later, underneath his mother, on his stomach and unresponsive. The appellant could not be roused for some time. The baby died later that day. The possibility of SIDS could not be ruled out, and there was evidence that this principal event occurred prior to the appellant lying on the baby.

A psychiatric report made clear that her child’s death had had a significant impact on the appellant, well in excess of that which would normally be expected.

The sentencing judge placed the offence in category 2 for harm and A for culpability. The judge expressly sentenced on the basis that it could not be ruled out that the baby died from SIDS.

The grounds for appeal were that the categorisation was wrong, there was insufficient reduction to reflect the delay, and the sentence should have been suspended.

Held: the categorisation should have been one of 2B, medium culpability. This was one evening of neglect of a baby who was otherwise well cared for. The appellant’s behaviour in taking her baby out, and the amount of alcohol consumed, did demonstrate the baby’s welfare was not being correctly dealt with by her, one of the features of category 2A. The presence of other category C factors, however, balanced out the category A leading to a conclusion of category B.

There was a substantial delay in this case between the incident and charging; it was a complex investigation with a difficult charging decision. Account should be taken of the delay although it must be recognised that sometimes a delay is inevitable.

The appropriate term was one of 16 months’ imprisonment. The personal mitigation was in favour of suspending the sentence, and so the substituted sentence was one of 16 months’ imprisonment suspended for 12 months.