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, 19th February 2010

1. LORD JUSTICE DYSON: The facts of this tragic case have been sufficiently stated in the judgment which we handed down on the conviction appeal and which do not repeat.
2. The appellant is now 25 years of age. The judge passed a life sentence for murder, with a minimum period of 10 years. Since the conviction for murder has been quashed, so too must the sentence be quashed and she now falls to be sentenced for manslaughter on the basis that we indicated at paragraphs 93 to 97 of our judgment.
3. In passing sentence the judge said this:

"In my judgment, your actions that fateful night were the result of frustration and exasperation, perhaps reflecting your intellectual difficulties and possibly impulsive behaviour from the elements of ADHD which the experts had said had remained with you from your earlier years but, nevertheless, the stark fact is that you killed your son, who was also the son of Clive Cooper, a vulnerable child in your care and protection.

There is no doubt there are mitigating features for this offence. Your early years were a desperate struggle. You have borderline learning difficulties with an IQ of 74 with elements of ADHD and of personality disorder. You also suffer from depression, although it was under control through medication. Your partner Clive Cooper, the father of Billy, had been sent to prison for violently assaulting you, leaving you to cope on your own. Any one or more of these factors may have played its part in leading you towards this dreadful conclusion which I accept was unplanned, not premeditated. Apart from this offence and apart from the occasion two months before when you went to see your birth mother in Gosport and, in effect, dumped the child on her while you went off to have a good time, you were, I accept, a good and loving parent in the main, doing the best you could in not ideal circumstances. There is certainly no evidence of previous violence or cruelty. The realisation of what you did and the loss of your child, even at your own hand, must have been severe punishment for you. I also take into account your age at the time, 21 years old, your good character and the helpful submissions made by your counsel. It is also of considerable note it is almost as much as three years from the date of these events. I take all those mitigating factors into account..."

He went on to refer to what he regarded as some aggravating factors, but clearly and, in our judgment, quite correctly, came to the conclusion that the strong mitigating features in this case heavily outweighed the aggravating features. This led the judge to reduce the starting point under schedule 21 of 15 years to 10 years.

4. Those strong mitigating factors are, of course, just as relevant to the sentencing exercise that we have to perform this morning as they were to the judge when he passed sentence on the conviction for murder. We take all of those factors fully into account.
5. It is necessary for us, however, also to have regard to the pre-sentence report, which has been prepared for our purposes this morning. The section dealing with the assessment of the risk of serious harm states this:

"14. Based on dynamic risk factors Ms Haigh poses a significant risk of serious harm to children, specifically her own children and those she cares for on a regular basis, by way of physical harm and neglect. These factors include her continued poor coping strategies; her need to be in a relationship and desire to have another child; and, her tendency to choose inappropriate and abusive partners. Exacerbating this risk are her depression, learning difficulties and attention seeking behaviour.

15. This risk may increase if Ms Haigh is not monitored and supported in the community. This is necessary because these factors are long term and will be very difficult for Ms Haigh to overcome. Probation, Police and Mental Health Services have risk management procedures in place in order to do this.

16. Ms Haigh poses a low risk of serious harm to members of the general public and staff.

17. Ms Haigh poses a medium risk of self-harm and suicide, by way of cutting herself and overdosing on medication when she feels unable to cope. This will be monitored and addressed primarily by the Community Mental Health Team."

6. The first question that we have to consider is whether the dangerousness criteria are satisfied in this case. It has been urged upon us by Mr Hadrill that Miss Haigh does not satisfy those criteria. He does not seek to challenge the assessment made at paragraph 14 of the pre-sentence report, but he submits that the only risk that Miss Haigh presents would be to any further children that she might have in the future. He submits that the idea that she would be allowed to care for other children is not realistic given the history of this sad case. So far as any future children of her own are concerned, he submits that the authorities would ensure that any danger would be minimised if not avoided altogether.
7. We are not persuaded by these submissions. It seems to us that paragraph 14 of the pre-sentence report does give rise to real concerns that Miss Haigh might have children as in the future, and we are not satisfied that there is not the possibility that she would cause harm to those children. In saying that, we do not for one moment suggest that she would deliberately intend to cause harm to such children. The facts of the present case show that that is not so. The concern is, as demonstrated by the present case, that her inability to cope, when she is subjected to any form of stress, might lead to disastrous consequences. For these reasons we are satisfied that the dangerousness criteria are met in the present case.
8. We do not, however, consider that it would be right to pass a sentence of imprisonment for public protection. In our judgment an extended sentence would be sufficient. We cannot however pass an extended sentence unless we are satisfied that the appropriate custodial term is one of at least 4 years custody.
9. Mr Hadrill has helpfully referred us to a number of authorities which are not wholly dissimilar to the present case, involving manslaughter by a parent of a young child. It is sufficient if we simply identify them: R v Turner [2002] 1 Cr App(S) 207, Attorney-General's Reference No 16 of 2005 [2006] 1 Cr App R(S) 28 (161), R v Yates [2001] 1 Cr App R(S) 124 and R v Fletcher [2006] 2 Cr App R(S) 57. We accept Mr Hadrill's distillation of the authorities as indicating that the appropriate bracket for offences of this kind is 3 to 5 years custody. That is on the basis that there is no discount for a plea of guilty. Of course this appellant is not entitled to such a discount.
10. Having regard to all the mitigating factors identified by the judge and the considerable delay that has occurred in the present case, we think that the appropriate determinate sentence would be one of 4 years' imprisonment. Accordingly, it is open to this court to pass an extended sentence and, in our judgment, it is right that we should do so.
11. We are particularly concerned by the fact that it is evident from the reports that the appellant will need very considerable help and support when she is released into the community. She is not prospering in prison and it is to be hoped that, when she is released, she will thrive in a way in which so far she has not been doing in prison. It seems to us, therefore, that what is needed here is a significant extended period to enable that support to be provided. We have decided that the correct sentence to pass is an extended sentence of 9 years comprising 4 years custodial term and an extension period of 5 years. The time that she has served will of course count.
12. MR HADRILL: On my calculation 513 days. That may be slightly wrong.
13. LORD JUSTICE DYSON: We are not in a position to say. Do we have to specify the period? We just say that the time spent should count.
14. MR HADRILL: There is a new direction. I ask the 513 to be varied if...
15. LORD JUSTICE DYSON: What is the period you have suggested?
16. MR HADRILL: On my calculations 513 days from the day of sentence. (Pause)
17. LORD JUSTICE DYSON: Whatever figure we say it can be varied administratively, so in a sense it does not matter. It would be better if we get it right but if we are given rival figures.... (Pause) I think we should take as the starting figure the figure that has come from the prison. In a sense it does not matter which we adopt because if it is wrong it can be varied. I think, since you do not seem entirely certain of your figure in any event, I think the safer course is to take as the starting point the prison figure which is 473 days already served shall count towards the sentence. But we make it clear that if that figure proves to be wrong it can be varied administratively. It should be varied administratively.