Marina Tilby [2019] EWCA Crim 1623

Marina Helen Tilby [2019] EWCA Crim 1623 concerned an appeal against sentence by the Court of Appeal (Lord Justice Singh, Mr Justice Fraser and Mrs Justice Thornton DBE) which was allowed in part, resulting in a custodial term being suspended.

Ms Tilby had pleaded guilty to one count of child cruelty contrary to section 1(1) of the Children and Young Persons Act 1933 in relation to her four-week-old son Darrian, who died on 31 March 2017. She was sentenced on 7 June 2019 at Swansea Crown Court by His Honour Judge Thomas QC, the Recorder of Swansea, to two years and four months’ immediate imprisonment. She appealed with leave of the single judge.

Darrian was born on 2 March 2017 when Ms Tilby was 24 years of age. She was not in a relationship with his father, although he wished to be involved in the child’s life. Following the birth Ms Tilby had been under the care of a health visitor and had been given advice concerning the risks of co-sleeping with a baby and the increased risk associated with alcohol misuse. No concerns had been raised regarding the standard of her care prior to the incident.

On 29 March 2017 Ms Tilby and her sister went to a public house in New Quay between 6 and 7 pm with Darrian in a car seat. The two sisters drank Guinness. Before leaving at around 8.30 pm the sister purchased a bottle of gin, a bottle of port and a bottle of lemonade from a local shop. A taxi took them to the Quay West Holiday Park, where they continued drinking in the clubhouse. A number of witnesses noticed the two sisters with the baby and described both as appearing under the influence of alcohol. Both held Darrian whilst on the dance floor. CCTV footage showed Ms Tilby lifting Darrian above her head and throwing him into the air a short distance and catching him on at least four occasions. The judge was satisfied, and the Court of Appeal agreed, that this was dangerous behaviour and no right-minded person could conclude it was suitable for such a young baby.

The sisters met three men staying at the campsite. At the end of the evening they cancelled their return taxi and went back to the men’s caravan, taking Darrian and continuing to drink. During the course of the evening Darrian was passed around for cuddles and was breast fed by Ms Tilby. At about 3.30 am one of the men offered his double bed to her to put Darrian to sleep. She did so, placing Darrian on top of the bed, then lay down next to him and fell asleep. Shortly afterwards the man went to bed himself, lying on top of the covers fully clothed. He noticed Ms Tilby was lying face down asleep next to Darrian.

About 30 minutes later Ms Tilby’s sister came into the bedroom looking for her. She discovered Darrian underneath Ms Tilby, who was lying with her stomach on top of the baby. The man woke, pulled Darrian from underneath Ms Tilby and handed him to the sister. The baby had blood on his nose and was unresponsive. The sister attempted immediate first aid. The emergency services were contacted but Ms Tilby could not be roused. After emergency services arrived, paramedics attended and attempted to revive Darrian. He was transferred to hospital. Attempts to rouse Ms Tilby continued for approximately 40 minutes after police officers attended. She was eventually roused at about 5.15 am. There was a bloodstain at the head end of the duvet near to where she had been lying and a similar stain down the front of her top. She was taken to hospital and able to see Darrian before he was moved to the intensive care unit, but at about 7 am she was arrested on suspicion of child neglect.

A paediatric intensive care team travelled from Bristol to Aberystwyth to assist, but it was agreed that Darrian’s position was hopeless and intensive care was withdrawn at 5 pm that day. Ms Tilby was permitted to return to the hospital and Darrian died in her arms at 5.40 pm.

A Home Office pathologist, Dr James, noted that Darrian was a normal size for a four-week-old infant, appeared to be in a good nutritional state and had been well cared for. With the exception of the events of that evening there was no evidence other than a good standard of care. Abnormalities seen on examination were secondary effects of prolonged cardiac arrest, the precise cause of which could not be ascertained. It was possible the death was a sudden unexpected death in infancy (Sudden Infant Death Syndrome, or SIDS). Such an event was recognised as more likely in co-sleeping with a baby, and some children die when an adult (usually intoxicated) lies on top of them whilst bed-sharing. DNA evidence supported the conclusion that Ms Tilby was sleeping with her head near to where Darrian’s blood was found. There was no blood staining to indicate Darrian had been moved significantly around the bed whilst bleeding. The blood staining on Ms Tilby’s top which matched Darrian had soaked through, indicating prolonged contact. The findings could be explained by her lying on top of Darrian whilst he was bleeding or becoming stained with wet blood. The prosecution concluded it could not rule out the possibility that the cause of death was SIDS and that this occurred prior to Ms Tilby lying on top of the baby. Other medical evidence indicated Darrian was a healthy breast-fed four-week-old baby prior to his death.

Ms Tilby indicated her intention to plead guilty at the plea and case management hearing. A pre-sentence report and a psychiatric report were obtained. The psychiatric report made clear that Darrian’s death had had a significant impact on Ms Tilby’s mental health well in excess of that normally expected of a parent whose newborn baby had died. She suffered deep depression with clinical depressive symptoms of moderate severity and also from the stress-related skin condition psoriasis, which had increased in severity. The report made clear her symptoms were in excess of those ordinarily to be expected. Darrian’s father provided a victim personal statement recording the considerable impact upon him and stating that he would have readily babysat on the night in question had he been asked.

The sentencing judge placed the offence in Category 2 for harm and Category A for culpability. He expressly sentenced Ms Tilby on the basis advanced by the Crown, namely that it could not be ruled out that Darrian had died from SIDS. The judge accepted the medical evidence on that point. He stated the offence was at the top of the range for Category 2A, which has a starting point of three years’ custody with a range of two to six years. The judge identified the correct sentence following a trial as three years and six months, which he reduced by one third to reflect the guilty plea, arriving at two years and four months’ immediate imprisonment.

There were four grounds of appeal: that it was wrong to place the offence in Category 2A; that it was wrong to place it at the higher end of Category 2A; that there was insufficient downward adjustment to reflect delay; and that the sentence should have been suspended.

The Court of Appeal held that the offence ought not to be categorised as 2A with high culpability but rather 2B with medium culpability. The court considered this to be one evening of neglect involving a lapse of judgment over that period, rather than a more prolonged period of neglect of a baby who was otherwise well cared for. Although the behaviour in taking the baby out for an evening and the amount of alcohol consumed demonstrated that the baby’s welfare was not being correctly dealt with, and one of the features of Category 2A is deliberate disregard for welfare, the presence of other Category C factors (including those showing this could be correctly categorised as a lower harm offence) meant, as the guidelines expressly state, that the presence of factors indicating both Category C and Category A balanced each other out, leading to a conclusion of Category B. However, it was correctly placed towards the top end of Category 2B.

The court addressed delay. There had been considerable delay between the incident and charging, caused by difficulty in obtaining all necessary evidence and considering what was a complex investigation and difficult charging decision. It was also necessary for the Crown to consider whether the events merited a more serious charge. The court took this into account in arriving at the correct sentence, recognising that delay prior to charging may be inevitable in difficult cases given the task of collecting evidence and giving proper consideration to the prosecution decision.

The correct starting point for a Category 2B offence was one year’s custody with a category range from a high level community order to two years six months’ custody. The court moved within that range towards the top end, which would be two and a half years, prior to adjustment for delay. Taking account of delay, the court moved to a sentence of two years prior to discount for a guilty plea. The mitigating features included genuine remorse and no relevant previous convictions. Applying the one third discount for the guilty plea to the two year period produced a custodial sentence of 16 months.

Given that the sentence was one of less than two years, the court turned to consider whether immediate imprisonment was called for or whether the sentence should be suspended. This was a matter the sentencing judge was not able to consider because the sentence he arrived at exceeded two years. The court followed the Definitive Guideline for the Imposition of Community and Custodial Sentences. The feature present in favour of suspending the sentence was Ms Tilby’s personal mitigation. She had a good work record. The effect upon her of Darrian’s death had been profound, although that had to be balanced against the fact that as Darrian’s mother she was duty bound to take care of him. She was a first-time mother and had no experience of caring for her own baby. It was inevitable that as a mother involved in an offence of this nature with such dreadful consequences she would be severely affected for the rest of her life, and the court took that into account.

The court decided after careful consideration not only that the sentence passed by the Recorder of Swansea should be quashed but that the sentence should be suspended. The court substituted a suspended sentence order with a custodial sentence of 16 months suspended for a period of 12 months. In short, the appeal succeeded and Ms Tilby’s sentence of two years and four months’ immediate imprisonment was replaced with 16 months’ imprisonment suspended for 12 months.