England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 31 October 2008

1. MR JUSTICE BURNETT: On 8th April 2008 the appellant pleaded guilty to one count of murder before His Honour Judge Kramer QC sitting at the Central Criminal Court. On 9th April he was sentenced to life imprisonment with a specified minimum term of 15 years pursuant to section 269 of the Criminal Justice Act 2003. The appellant appeals against the specified term with leave of the single judge.
2. The victim of the offence was the appellant's six month old daughter, Hylene. She was also the daughter of his partner, Faustine Agyapong. The appellant, who is now 29 years old, met Faustine Agyapong in November 2005. Both originally had come from Ghana. They moved in together and lived at various addresses in the following months and from time to time they lived separately.
3. Hylene was born on 26th October 2006. She died on 25th April 2007. By that time she and her mother were living in a one bedroom flat in Kensington Gardens, Ilford. Although the property was provided by the local authority on condition that Miss Agyapong lived there alone with her daughter, the appellant moved in fairly shortly afterwards because he had nowhere else to go.
4. During the short period of their relationship and the even shorter life of Hylene there had been a series of incidents in which the appellant had been violent towards Miss Agyapong. A number of those involved the police. On one occasion he was cautioned for common assault. A number of those incidents also involved Hylene. It seems clear that the appellant was unable to control his temper from time to time. On one occasion he pinched his daughter and put his hand across her face. On another he threatened to throw her out of the window. That was one of the occasions on which he struck Miss Agyapong. On yet another occasion he threw Hylene towards his mother in the course of an argument but fortunately she sustained no injury.
5. The events which led to Hylene's death again involved the appellant losing his temper. Hylene was crying and needed feeding. The appellant gave her some yoghurt despite Miss Agyapong suggesting that she be given fruit or rice pudding. Hylene was then sick and the appellant became frustrated. Then there was what the prosecution described as a 'silly' argument about who should clear up the mess. The appellant began to lose his temper and slapped the baby across the mouth which caused her to cry. The argument escalated. The appellant by this stage was holding Hylene under one arm. Her legs were under his armpit and her head dangling towards the floor. The appellant punched Miss Agyapong and tried a second time to do so. These events occurred in the kitchen of the small flat in which they were living.
6. The appellant then left and went into the living room saying words to the effect of "I don't give a damn." He then threw Hylene head-first onto the living room floor. The baby landed on her head with a large thud which was plainly audible to her horrified mother. Miss Agyapong picked Hylene up from the floor. It was obvious that she was seriously injured. The appellant immediately realised what he had done and said words to the effect: "Look what I've done, you let me kill my own baby." Miss Agyapong asked him to call an ambulance but he refused to do so, appreciating that he would be arrested. The appellant, who had been in his underwear, got dressed and left the flat taking Miss Agyapong's mobile phone with him. He said he would call an ambulance but by taking the phone he deprived Miss Agyapong of any opportunity of immediately doing so herself. He did in fact call for an ambulance whilst standing in the front garden of the house a few moments later. By this time Miss Agyapong was distraught. The appellant walked away from the house with her shouting after him and screaming that her baby was dying. Neighbours did what they could. Hylene was in fact still alive but despite the best efforts of the medical teams at Queen's Hospital Romford she died a few hours later.
7. When the appellant telephoned for an ambulance he said that he had dropped the baby on her head. He was arrested a short while later and interviewed on a number of occasions over a period of three days. During the course of those interviews he suggested that he had dropped the baby as a result of actions of his partner. He maintained his denials of responsibility until the date on which the trial was due to start. It was due to commence on 7th April 2008 and it was only on that day that he accepted his responsibility by the plea of guilty.
8. The prosecution had identified three particular aggravating features. First, that the victim was young and vulnerable. Secondly that the circumstances amounted to an abuse of the position of trust. Thirdly, the delay in calling the emergency services. We have already noted however that that delay was a very short one and it is also right to observe that the delay had no effect on the tragic outcome in this case.
9. The mitigating features advanced on behalf of the appellant both before the judge and before this court were, first, that there was no intention to kill Hylene. Secondly, that the appellant had for the most part acted in the best interests of his daughter during her short life and loved her. Thirdly, there was a lack of premeditation; her death resulted from a violent incident which occurred in the heat of the moment in the period of a loss of temper. Fourthly, that the appellant had been living in difficult and stressful circumstances. He had said he had no second address and both he and Miss Agyapong lived in squalid conditions in the various places made available to them. He was also unemployed and so it was suggested that these circumstances contributed to the relatively trivial stimulus of an argument about who should clear up the baby's sick, leading to this dreadful sequence of events. Fifthly, the appellant was deeply remorseful.
10. The learned judge in the course of his sentencing remarks rehearsed the background to the offence and then said this:

"So far as the sentence for murder is concerned, it is mandatory: The sentence I pass is one of life imprisonment. I have to specify in the order I make the minimum term which you should serve. On the facts of this case I consider an appropriate starting point to be 15 years.

I accept and take into account the following matters..."

The learned judge then set out a number of the mitigating features. He then continued:

"I give you full credit for your plea of guilty. Even though it came late in the day, I bear in mind that in such a case as this, it has not been easy for you, the father of the baby, to accept and to face up to what you have done."

The learned judge then went on to consider the conduct of the appellant and the victim impact statement that had been made by Miss Agyapong, the mother of Hylene. He then referred to R v Crowston [2006] 1 Cr.App.R (S) which had been placed before him. He observed that counsel had rightly remarked that each case depends on its particular facts and then he concluded:

"In all the circumstances, and balancing all the matters to which I have referred, the minimum term that you should serve is 15 years, from which should be deducted the time you have spent in custody awaiting trial, agreed to be 345 days."

11. Mr Berry QC who appears for the appellant before us, as he did below, does not dispute the starting point of 15 years identified by the judge. However, he submits that taking account of the aggravating factors, the mitigating factors and the guilty plea, together with consideration of previous decisions of this court, the minimum term of 15 years was manifestly excessive. He emphasises that the learned judge gave full credit for the plea, despite its lateness. We are bound to observe that we consider that approach to have been a generous one on the part of the sentencing judge. We shall take the plea into account in determining whether the minimum term was appropriate.
12. In his written submissions Mr Berry argues that the case of Crowston (to which the sentencing judge referred) concerned facts which disclose a greater degree of criminality and culpability than is present in this case. In particular the baby who was killed was in the care of a stranger and there was plainly what amounted to a sustained attack on that child which led to its death. On that occasion the minimum sentence which was imposed by this court was 14 years.
13. Mr Berry in his written argument also referred to Kabir [2004] EWCA Crim. 2751 which he submits, and we agree, was a more serious case than the one with which we are concerned.
14. In cases of this nature it is distasteful to consider the relative seriousness of what occurred, given that in each a young life was taken away as a result of violence. Whenever a court deals with a case of this sort it is conscious that whatever the minimum term imposed, it does nothing to bring back the dead child, nor to satisfy those who have lost the child that the sentence is appropriate. We have reflected anxiously on all the circumstances of this tragic case.
15. Taking account of all of the matters that have been urged upon us, we have come to the conclusion that the minimum term of 15 years in this case was too long. In our judgment the appropriate term to be specified under section 269 of the Criminal Justice Act 2003 is one of 13 years. The period spent on remand as specified by the judge will continue to count towards that period.