EG [2019] EWCA Crim 1227

EG [2019] EWCA Crim 1227 concerned an appeal against sentence by EG, who had been convicted of two offences of child cruelty contrary to section 1(1) of the Children and Young Persons Act 1933, before the Court of Appeal (Lord Justice Fulford, Mrs Justice Andrews DBE and Mr Justice Swift).

EG pleaded guilty on 2 January 2019 at Wolverhampton Crown Court to two counts of child cruelty to persons under the age of 16. On 12 February 2019 His Honour Judge Berlin sentenced her to two concurrent terms of three years and six months’ imprisonment. Her partner, AS, received concurrent terms of three years and four months for the same offences, with a total sentence of eight years and six months for other offending dealt with separately.

The offences involved the severe malnutrition of EG and AS’s twin children, AZ and BY, born prematurely in March 2016. For the first eight months of their lives the twins thrived and met their developmental targets. Health workers last saw them around 1 November 2016 as the parents stopped engaging with professionals thereafter. On 7 September 2016 a health visitor had recorded the twins as healthy, with BY able to hold her body upright and bring a spoon to her mouth. AZ was similarly recorded as healthy. BY weighed 6.6 kilograms and AZ 6.9 kilograms. The appellant and AS then missed several paediatric appointments and vaccination appointments. Contact with professionals ended entirely on 1 December 2016. Professionals made efforts to contact the couple towards the end of December, requesting that the twins have their height and weight reviewed before a child in need plan could be drafted.

A health visitor visited the home on 10 January 2017 after two failed visits on 5 and 6 January. BY could no longer sit up, was unable to roll over or bear weight, and weighed 5.02 kilograms. AZ had failed in all areas of development, could no longer sit up or roll over, and weighed 5.35 kilograms. Both were dressed in clean coats but wore dirty and stained baby grows and AZ had scratches on his arm and head. An urgent appointment was made with a paediatric consultant, Dr Lane, at Walsall Manor Hospital. The following day the twins were assessed as extremely malnourished. Their ideal weights should have been 7.2 kilograms for BY and 8 kilograms for AZ. Their skin and nails were dirty, they wore dirty clothing, and their hands and feet were cold with inappropriate clothing for the cold weather. Both lay in prams with what the doctor described as frozen watchfulness. When picked up they made no noise and did not interact with the doctor. Both were admitted immediately for failure to thrive. A paediatric dietician described BY as severely underweight for her age and severely wasted, with protruding ribs and sternum, lethargy, downturned mouth and irritability. All clinical signs of malnutrition were present. AZ was described in similar terms. There were no medical reasons for the malnutrition. Over a two week period both babies’ weights increased to 5.8 kilograms.

Hospital staff commented on the parents’ conduct. The twins initially struggled to eat food with lumps and the bottles brought in were very discoloured. The parents rarely spent a night on the ward. At times they were seen not to interact with the babies and had to be prompted to change or feed them. Staff had to wash the babies’ clothing as the parents failed to provide clean clothes, and items brought in smelt of cigarette smoke. Staff noticed that the babies did not like to be handled or cuddled and continued to hide under their blankets instead of engaging with nursing staff. Neither baby responded to prompting at meal times, suggesting they were not used to being fed. The twins’ condition improved from severely malnourished to moderately malnourished. They were discharged on 13 January 2017 with BY weighing 5.85 kilograms (having gained 800 grams) and AZ weighing 6.25 kilograms (having gained 550 grams). By 21 March BY weighed 8.72 kilograms and AZ 8.8 kilograms. The twins had been placed with foster parents. A nurse who saw them in July 2017 described them as completely transformed, with fat faces, appearing happier and healthier, and interactive and smiling. All five of the appellant’s children had been taken into foster care following an Injury and Care Order in January 2017. A foster carer described the three older girls as smelling of smoke and urine with dirty clothing and appearances when they came into care.

The appellant and AS were arrested on 2 February 2017. They both asserted that they had not intentionally neglected the children and claimed the twins had appeared normal until 11 January. They said the twins had been treated the same as the older children and fed in the same way. They had noted a drop in the twins’ weight but neither felt hospital admission was required. AS had a Class A drug addiction at the time of the neglect. The appellant said she had done the best she could with five children under the age of five, a partner addicted to drugs and a mother diagnosed with cancer. AS denied his addiction had affected his care of the children. When interviewed for the pre-sentence report the appellant expressed remorse and regret and made no attempts to minimise her responsibility. However, she displayed only limited awareness of the impact on the children. She was assessed as posing a low risk of re-conviction, a medium risk of harm to children and a low risk of harm in all other areas. A custodial sentence was accepted as inevitable.

The judge observed that the appellant had pleaded guilty on the day of her trial and was aged 28 with no previous convictions. Dr Lane, who examined the children and was an experienced paediatrician, had described the malnutrition as the worst she had ever seen, a view echoed by a dietician who saw children when working in Africa. A staff nurse emphasised their obvious protruding bones and swollen stomachs. The judge concluded that it was no exaggeration to observe that the children had been at risk of dying. He addressed the Sentencing Council’s Definitive Guideline on cruelty to a child, effective from 1 January 2019. He observed that the twins had lost weight because they were starved by both parents. He expressed the view that their uncaring attitude was beyond belief. He determined that the level of neglect constituted serious developmental harm, placing the offences in category 1. He accepted, at least to an extent, that the case fell at the upper end of medium culpability on the basis that it was a case of high neglect rather than deliberate disregard which would have placed the case in the high culpability bracket, though he said it was a fine line between the two. The starting point for category 1 harm with culpability B is three years’ imprisonment with a range from two to six years. The judge highlighted the failure to respond to interventions or warnings from December 2016, when both stopped engaging with professionals and watched their children deteriorate to the point of near starvation. The period of acute starvation extended over a period of weeks. The starting point was increased to four years and eight months to take account of the aggravating features. The judge accepted mitigation including an earlier period of reasonable normality, that the couple’s lifestyle was chaotic, that there had been a number of bereavements in the appellant’s life, that her mother had passed away in 2017 having been diagnosed in 2016 with throat cancer, that the appellant had no previous convictions and had shown remorse. He moved upwards from the starting point of three years to four years and eight months. After 10 per cent credit for the appellant’s plea the sentence was three years and six months’ imprisonment.

Mr Logan on behalf of the appellant contended that the increase from the starting point of 36 months to 56 months before reduction for mitigation and plea resulted in too high a sentence. The Court of Appeal observed that this was a difficult and troubling case. The two young children were badly starved leading to serious developmental harm. One particular matter referred to by the judge in departing from the three year starting point, namely that the appellant watched her children approach starvation over a period of weeks, raised a question as to whether this was truly an aggravating factor or an essential part of the offences. If the parents had provided nourishment it was difficult to see how offences of this level of seriousness would have been committed. There was an issue as to whether the judge may have viewed as an aggravating factor something that was an essential consideration when determining offence category, raising a possibility of double counting. However, the court concluded that it was unnecessary to resolve this issue because the judge was sentencing for two offences involving two children. The critical question was whether an overall sentence of three years and six months’ imprisonment was too long, the judge having determined that a sentence of four years’ imprisonment was appropriate once mitigating and aggravating features had been taken into account, from which 10 per cent for the late plea was deducted. The court reminded itself that the Crown put the case on the basis that the acute period of starvation was the result of the parents’ chaotic lifestyle leading them to disregard the twins’ welfare. The prosecution credibly suggested that this was a case of high or medium culpability. Given there were two victims, both of whom would have suffered equally, the court was unable to conclude that the sentence was manifestly excessive. This was a global sentence in a very bad case of child starvation involving two very young children over a period of about two months, which was a long period in this context.

In short, the appeal against the sentence of three years and six months’ imprisonment for two offences of child cruelty resulting in near starvation of twin babies was dismissed, the Court of Appeal holding that the sentence was not manifestly excessive given the involvement of two victims and the prolonged period of severe malnutrition.