England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2006] EWCA Crim 114

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		Neutral Citation Number: [2006] EWCA Crim 114
		No: 2005/05138/A0

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London WC2

18 January 2006

B e f o r e :

LORD JUSTICE LATHAM
MR JUSTICE BURTON
THE RECORDER OF LONDON
(Sitting as a Judge of the Court of Appeal Criminal Division)
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	ATTORNEY GENERAL'S REFERENCE No. 96 of 2005
	UNDER SECTION 36 OF
	THE CRIMINAL JUSTICE ACT 1988

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Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)

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MR D PENNY appeared on behalf of the ATTORNEY GENERAL
MR S ROBINSON appeared on behalf of THE OFFENDER
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HTML VERSION OF JUDGMENT
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Wednesday, 18 January 2006

LORD JUSTICE LATHAM:

This is an application by the Attorney General for leave to refer to this court a sentence of two years' imprisonment imposed upon the offender on 26 August 2005 for an offence of cruelty to a child under 16 years of age. We grant leave.

The offender is a national of the Congo. He came to this country and claimed asylum, which has been refused. The victim was a child, Natalie, who is now 10 years of age. She is the daughter of a friend of his. She also was born in the Congo. Her parents are separated. Her father came to this country in 2001. Natalie joined him here and they lived in Nottingham, where her father met and became friends with the offender. He would often leave Natalie in the offender's care.

It is apparent from what Natalie has subsequently said that when she was left in the care of the offender he would abuse her, not sexually, but physically and in other ways. That occurred both in Nottingham and after Natalie and her father moved to Hull.

The offender's treatment of Natalie came to light as a result of the observations and concerns of a neighbour in Hull who had a daughter at the same school as Natalie. Natalie would often play together with her daughter at the neighbour's house. It became apparent to the mother that Natalie was often left on her own and she appeared thin and hungry all the time. On occasions she heard Natalie screaming. On one occasion in May 2004, the neighbour heard screaming; but Natalie denied to her that anything had happened. Nonetheless the neighbour saw that she was walking in a way which suggested that her ribs had been hurt. The neighbour also saw bruising to her face. On another occasion she found Natalie had come into her house and had opened her refrigerator and was looking for food. Matters came to a head in July 2004, when once again the neighbour heard Natalie screaming and then a man's voice berating her. The neighbour shouted to whoever it was in the house that she would call the police if matters went on like that.

The following day the neighbour asked Natalie what had happened and Natalie told her that her "uncle" had been hitting her and that he had hit her that night. The neighbour saw that Natalie's right hand was very swollen. When she asked her further questions, Natalie said that her uncle had been burning her with cigarettes on her arms. The neighbour saw circular marks and bruises on both arms; she then called the police.

Natalie was examined by a doctor who found 24 areas of bruising and scarring on her arms and legs. Her right hand was swollen and bruised. There was bruising to her upper arms, consistent with being hit with a shoe (which is what Natalie had said had happened). The marks on her legs and arms were consistent with cigarette burns. Her condition fully bore out the account that she gave of having been ill-treated by the offender over a period of approximately a year. He would not merely ill-treat her physically in the way already described, but he would deprive her of food and water by way of punishment, and on occasions he attempted to strangle her and pinch her. He would make her stand up for long periods at night and she was made to wash in cold water.

When the offender was arrested and questioned he denied that he had ever assaulted or ill-treated Natalie. As to the cigarette burns, he suggested that that had been her own fault when she had fallen asleep in front of the television and rolled on to an ashtray. He was granted bail, but absconded. He was eventually arrested in June 2005 and subsequently appeared before the Crown Court on 29 July 2005, when he pleaded guilty having, it is to be noted, put in a defence statement a few days earlier in which he vehemently denied the allegations.

There was no written basis of plea. The only explanations as to how it was that the offender came to commit this offence against Natalie comes from the pre-sentence report and the material provided in mitigation by counsel on his behalf. The judge stated that he did not think that his actions were harming the child; he thought that what he was doing was, according to his culture, a perfectly proper way of teaching her right from wrong; what happened to her was "a way of life for children".

In his submissions to this court on behalf of the Attorney General, Mr Penny has submitted that the aggravating features to be found in this case are that the cruelty was perpetrated over a substantial period (over at least a year). He submits that they amounted to purposive acts of torture on a young child and were committed when the offender was in a position of trust in relation to that child. He accepts that the mitigation was that the offender pleaded guilty, albeit at the plea and case management stage and after he had been at large for some time. He had no previous convictions at the time he committed this offence. The ultimate result in terms of injury to the child was not as serious as in some cases. He has referred this court to R v J [1996] 1 Cr App R(S) 20 and R v Parker [1996] 1 Cr App R(S) 58. His submission is that the judge failed adequately to reflect the seriousness of this offence in the sentence of two years' imprisonment and that the authorities to which he referred would have suggested that after a plea of guilty in circumstances such as this, a sentence of five years' imprisonment or so would have been appropriate.

On the offender's behalf Mr Robinson does not seek to suggest that the sentence was other than lenient, but submits that the starting point after plea, in the light of the fact that the offender had no previous convictions, should have been in the region of three-and-a-half years and that, bearing in mind double jeopardy, we should exercise our discretion not to interfere with the sentence ultimately imposed.

Having considered this case with some care, bearing in mind the persistent nature of the ill-treatment of this poor child, the fact that the offending did not simply involve the physical beatings and injuries that thus were caused, but also deprivation of water and food, the minimum sentence that we would have expected after a plea of guilty in these circumstances would, as the Attorney General submits, have been one of a about five years' imprisonment. In those circumstances we consider that the sentence imposed was unduly lenient. Taking into account the principle of double jeopardy, it seems to us that the proper sentence we should impose today by way of substitution is one of four years' imprisonment.

Insofar as it will ultimately be of any relevance, we disqualify the offender from working with children under the provisions of section 28 of the Criminal Justice and Courts Services Act 2000.