England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2009] 2 Cr App R (S) 113, [2009] 2 Cr App Rep (S) 113, [2009] EWCA Crim 702

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		Neutral Citation Number: [2009] EWCA Crim 702
		No: 200900704/A8

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL

Tuesday, 24 March 2009

B e f o r e :

LADY JUSTICE HALLETT DBE
MR JUSTICE OPENSHAW
HIS HONOUR JUDGE FRANCIS GILBERT QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
____________________

	R E G I N A
	v
	OWAIN HUW OWEN

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____________________

Mr D Roberts appeared on behalf of the Appellant
Mr J Philpotts appeared on behalf of the Crown
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HTML VERSION OF JUDGMENT
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LADY JUSTICE HALLETT: In the spring of 2000 the appellant, who was then aged 26, began a relationship with the mother of Shauna Griffiths. Shauna had been born on 15 November 1999. There were no concerns about her health or subsequent development until 9 June 2000. At quarter to nine on the evening of 9 June paramedics were called to an address in Porthmadog. Shauna was discovered on the floor. She was grey in appearance and blue around the lips. Her airway was partially obstructed. She was not breathing, her pupils were dilated. The appellant was there with her. He was hysterical. Shauna was stabilised and taken by helicopter to hospital. There doctors discovered extensive retinal haemorrhaging, cerebral bleeding, and fractures to the radius and ulna, which were indicative of her having been violently shaken. A consequential asphyxial injury starved her brain of oxygen causing a significant brain injury. She suffered four limb spasticity. She was to remain for the rest of her short life blind, unconscious, unable to be moved, unable to be fed orally and requiring continual and regular suction to clear her airways.

The appellant was interviewed on 12 and 22 June 2000. He denied assaulting the child and claimed that she had a fit and he had caused the injuries trying to resuscitate her. He maintained his false account for several months. However, he pleaded guilty at the earliest opportunity to a section 20 offence of inflicting grievous bodily harm. On 9 March 2001 he was sentenced to three years' imprisonment. He was warned in specific terms by the sentencing judge that if Shauna died he might face a return to prison.

Shauna was cared for and later adopted by a couple whose devotion to her was truly inspiring. They cared for her from the year 2000. Over the years she suffered a number of complications. Her illnesses became more complex and required more frequent hospital treatments.

In May 2007 she became ill for the final time. The doctors treating her decided that she was unlikely to recover and the decision was taken that she should be escorted home to die with her adoptive parents. However, she never made the journey home. On the way the doctors realised she was near the end, the ambulance was stopped in the roadside and, with her adoptive parents at her side, she died.

The post-mortem found that the cause of death was pneumonia secondary to cerebral palsy. The palsy was caused by a non-accidental head injury inflicted by shaking or impact.

The appellant was arrested again. He was interviewed again on 21 October 2008. He declined to answer any questions. However, on 19 December 2008 in the Mold Crown Court, the appellant pleaded guilty to a single count of manslaughter. The judge, His Honour Judge Rogers QC, had before him a victim impact statement from Shauna's adoptive father describing the great loss that he and his partner had at her death. The judge also had the benefit of a letter from the appellant which begins with the words "This is the hardest letter I've ever had to write." Further there was a character reference from one of the appellant's colleagues upon him and a pre-sentence report. The author of the report recorded that the appellant felt uncomfortable discussing the offence but did not seek to minimise his responsibility for Shauna's injuries.

It was said that at the time of the offence the appellant was misusing alcohol in an attempt to cope with his mother's death. Mr Roberts on the appellant's behalf sought to assure us that since his release from prison he had addressed his alcohol problem and essentially turned his life around. On our reading of the facts he did not do this immediately because we note a conviction for drink driving in 2005.

However, Mr Roberts brought to our attention a number of other matters. The appellant is now a self-employed joiner. He has been able to re-establish his relationship with his 18-year old daughter from another relationship. He also developed a relationship with a new partner which came to an end when she discovered she was pregnant with their now 18-month old daughter. His partner is anxious not to involve the social services in her life (which would become necessary if she were to live with the appellant) and so they parted. The appellant decided he will not make contact with his younger daughter until she is older.

The author of the pre-sentence report assessed the risk that the appellant poses of committing further offences and decided he was at low risk of reconviction, albeit the very facts of the offence with which we are concerned indicate he would be considered a risk of causing harm to children in his care.

The author of the report considered a custodial sentence virtually inevitable, but in what the author described as "the unlikely event" that the judge might consider an alternative sentence, proposed the possible penalty of a community penalty or a suspended sentence with a prohibited activity requirement, the prohibited activity being contact with Shauna's adoptive parents.

His Honour Judge Rogers felt unable to accede to Mr Roberts's submission that this would be an appropriate case for a suspended sentence despite the exceptional circumstances. On 23 January 2009, therefore, he sentenced the appellant to one year's imprisonment. Mr Roberts frankly concedes that his mitigation did not fall on deaf ears. His Honour Judge Rogers plainly bore very much in mind that this was an isolated assault resulting from a sudden loss of temper. The judge accepted that the offence was out of character and totally different from other cases that sadly appear before the courts of prolonged violence against a small child. The judge also noted the efforts that the appellant had made to rebuild his life since his release from prison. He was highly regarded in the community and he has always expressed his contrition.

The judge, having noted all of those facts, also considered the length of sentence that would have been appropriate had Shauna died back in 2000 when the injuries were inflicted. He came to the conclusion that on the available authorities the appropriate bracket for the offence of manslaughter would have been four to five years. Mr Roberts did not seek to argue that any lesser sentence would be appropriate. Therefore, he conceded that if a sentence of four to five years would have been appropriate then there was a discrepancy of one to two years between the sentence actually served and the sentence that should have been served. Therefore, Mr Roberts does not argue that the sentence of one year was in any way excessive. However, he did argue that the judge was wrong in principle not to suspend that sentence.

Although we are told the appellant is soon to be released, he sought to argue that the unusual circumstances here did justify a suspension. He argued that by passing an immediate custodial sentence the judge must have failed to give sufficient weight to the fact that this was a second sentencing exercise, more than six years after the appellant's release from prison for the same criminal act committed by him. During that time, the appellant has worked hard and lived, for the most part, a nearly blameless life. Accordingly Mr Roberts argued there was no proper purpose to be served by returning the appellant to prison in these circumstances.

We disagree. There was a purpose. The purpose was to mark the death of Shauna and to punish the appellant not only for destroying her quality of life, for causing her years of pain and misery, but for killing her. The flaw in Mr Roberts's argument, as it seems to us, is that he accepted that a total immediate sentence of four years for manslaughter had it been imposed back in 2001 could not be described as in any way excessive; some may argue it would not be long enough. The question, therefore, is whether the appellant's excellent behaviour in the period between the two convictions means the judge was obliged to suspend a perfectly proper sentence.

He was not. There is nothing wrong in principle with an immediate custodial sentence. The appellant was warned that this might happen at his original sentencing hearing. He did not get on with his life in the belief that prison was behind him. He always knew that if Shauna should die of the appalling injuries that he had inflicted he might be called upon to serve the rest of the deserved punishment. That is what has happened. Accordingly, although in our view the appeal was properly put before us, we must dismiss it.