Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 63

HCA/2015-001147-XC

Lord Brodie

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST SENTENCE

by

SS

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Lenehan;  Kelly & Co, Glasgow

Respondent:  Bain, AD;  Crown Agent

8 July 2015

Introduction
[1]        This is an appeal against sentence at the instance of SS who, on 3 March 2015 (which was the trial diet), pled guilty at the High Court in Glasgow to a charge in the following terms: 

“between 1 September 2013 and 3 September 2013, both dates inclusive, inside a caravan at 22 Islay, Hunters Quay Holiday Village, Hunters Quay, Dunoon or elsewhere in Scotland, you SS did assault X, your son, born 29 July 2013, aged 5 weeks old, c/o Police Service of Scotland, Dunoon, seize hold of him, squeeze his body and repeatedly shake him to his severe injury, permanent impairment and to the danger of his life.”

[2]        Having heard a narrative of the facts from the advocate depute the sentencing judge adjourned the matter in order to obtain a criminal justice social work report in respect of the appellant.  Bail was continued.  On 26 March 2015, having considered the criminal justice social work report and having heard senior counsel for the appellant in mitigation, the sentencing judge imposed a sentence of imprisonment of seven years and six months.  He explained that had the appellant not pled guilty, the sentence would have been one of 10 years imprisonment. 

[3]        Put shortly, the ground of appeal advanced on behalf of the appellant is that the sentencing judge’s starting point of 10 years was excessive when regard is had to the available mitigation and the sentences imposed in comparable Scottish and English cases. 

Narrative of the facts as provided to the sentencing judge
[4]        The child X was born at the Southern General Hospital on 29 July 2013.  He is the only child of the appellant and TH.  They had been in a relationship since October 2011 and became engaged shortly prior to the birth.  At the time of the offence the appellant and TH resided at their respective parental homes but apparently the appellant had taken two additional jobs with a view to saving a deposit for a property where they would live together as a family.  As a consequence of the offence the couple are no longer in a relationship and have had no contact with one another since the child was placed on the Child Protection Register on 18 September 2013.  The couple have no other children either together or from previous relationships. 

[5]        Prior to the offence the child had not been involved with social services and there were no concerns regarding his care by either parent.  The appellant and TH were considered to be attentive and appropriate in the care of their son. 

[6]        After he was born the child resided with TH in her family home along with his maternal grandmother and aunt.  The appellant was actively involved in his son’s care and took two weeks paternity leave to assist TH who was suffering the after effects of a caesarean section. 

[7]        When X was just under five weeks old the appellant and TH made an arrangement to holiday at a friend’s caravan at Hunters Quay caravan park in Dunoon.  They planned to be away for a few days. 

[8]        They left to travel there around 1900 hours on 31 August and were joined for the initial stage of the holiday by TH’s cousin, CS, his partner CT and their two children. 

[9]        The group stayed together in the caravan until 1 September when at 1800 hours CS, CT and their children left to return home.  During their time in the company of the appellant and TH CS and CT did not note any issues or concerns.  They recalled that the child had fed and slept well and was behaving as one would have expected a baby of his age to behave. 

[10]      From the accounts of the appellant and TH, X continued to present normally until his feed at around 0300 hours on 3 September.  He had taken a breastfeed from TH at around midnight and, in keeping with his normal routine, awoke crying about three hours later.  The appellant lifted the child from his cot in the bedroom and took him to the living room of the caravan to change and feed him.  TH remained in bed but could see the accused as he changed X on the living room floor. 

[11]      She noted that the child was crying as he was getting changed however this cry was a familiar one and he routinely cried when his clothes were removed. 

[12]      TH believes that she may then have nodded off back to sleep while the accused was in the living room with the child.  The next thing TH heard was the appellant shouting to her for assistance.  She then joined the appellant in the living room where he was sitting with X on his knee.  The appellant was holding a bottle of milk and he said to TH “He’s not right”.  The appellant then showed TH the bottle of milk and explained that X had only taken an ounce which was out of character for him. 

[13]      TH noticed that the child appeared tired and drowsy but that he was not asleep.  She saw that her son looked pale, that his eyes were half shut, that he was taking short breaths, that his leg was shaking and that he appeared to be floppy.  Neither the appellant nor TH had seen their son acting in this way previously. 

[14]      Following a period of observation, during which there was little improvement in their son’s presentation the appellant and TH made a decision to take X to the local hospital in Dunoon.

[15]      They duly presented the child at the accident and emergency department of Cowal Community Hospital on 3 September at about 0540 hours.  He was booked in by an emergency nurse practitioner who took observations on him which included pulse, blood pressure, and temperature.  The child’s blood pressure and respiration were noted as normal as was his pulse and oxygen saturation but his temperature was recorded as 35.4 degrees. 

[16]      The out-of-hours general practitioner, Dr Akintayo Dare then examined X and found him to be conscious and alert, with good colour and no shortness of breath.  Dr Dare recalled that X was restless and was pulling his legs up and crying during the examination.  As a result of this behaviour it was difficult to examine his internal organs by way of palpation. 

[17]      During the child’s examination neither the nurse practitioner nor Dr Dare saw any of the symptoms described by his parents nor did they see any marks or injuries on the child’s body.  Dr Dare was of the opinion that the child was suffering from a viral infection and advised TH and the appellant to visit their general practitioner if their concerns continued or to return to the hospital if they were not satisfied that X was improving.  The child was discharged into the care of his parents at 0620 hours. 

[18]      After their return to the caravan TH attempted to bottle and breastfeed the child but he refused to feed and continued to squeal intermittently.  With no sign of improvement the appellant and TH decided to return to the mainland and take X the Royal Hospital for Sick Children (Yorkhill). 

[19]      The appellant and TH left the caravan with the child at about 0939 hours.  They remained concerned for their son and noted that during the journey he squealed intermittently, was shivering, sweating, sleeping constantly, only half opening his eyes, not eating and not crying when disturbed.  They presented at the accident and emergency department of Yorkhill Hospital at 1113 hours. 

[20]      On admission X was noted to be irritable and crying.  He had some petechiae on his forehead and upper chest, conjunctival haemorrhages and some bruising and purple discolouration to his chin, right shoulder blade and right thigh.  His fontanelle was noted to be tense and his cry was high pitched.  After having an intravenous line inserted for bloods and antibiotics his condition deteriorated with irregular breathing and he required resuscitation and ventilation.  He was given fluid resuscitation and antibiotics and in view of the concern regarding his neurological status a CT scan was performed.  This scan showed marked, diffuse cerebral oedema, worse on the left side, indicating diffuse, hypoxic injury and acute subdural bleeding.  X was then transferred from the scanning department to intensive care for on-going support. 

[21]      X was examined in intensive care whilst ventilated and sedated.  He appeared pale.  He was noted to have some bruising bilaterally under his jaw and petechiae over his face, upper chest and lower limbs.  Areas of purple skin discolouration were noted on his right thigh, right side of his back, over his right shoulder blade, right upper arm and right perianal area.  He was noted to have bilateral subconjunctival haemorrhages on the medial aspect of each eye.  Ophthalmology examination revealed multiple, widespread haemorrhages at multiple levels in the retina of both eyes.  A skeletal survey did not show any bony fractures initially but a follow up survey indicated healing posterior rib fractures of the tenth and possibly ninth rib on the right side and on the sixth rib on the left. 

[22]      The child’s neurological status quickly deteriorated after his admission with seizures and development of an unreactive left pupil.  He was treated with sedation and anticonvulsants and a further CT scan showed appearances consistent with diffuse, hypoxic, ischaemic injury and acute subdural haematomas.  

[23]      Over the course of 5 and 6 September the child’s brain continued to swell and he was unable to breathe independently.  He continued to have seizures although these were controlled by medication.  The appellant and TH were told to prepare for the worst and X was administered with the last rites.

[24]      On 7 September X’s condition was noted to have improved slightly and he began to breathe independently and showed signs of improvement with appropriate movements on his left side and reduced right sided movements.  He initially required a feeding tube but then became able to breastfeed on demand.

[25]      The clinicians were of the view that the combination of subdural haemorrhage, hypoxic brain injury, retinal haemorrhages, subconjunctival haemorrhage and facial petechiae and bruising were suggestive of a pattern of abusive head trauma.  The finding of healing rib fractures in an immobile child also raised concern that this was an abusive injury most likely to have been caused by shaking. 

[26]      Clinical investigations failed to find evidence of any naturally occurring medical condition that would account for X’s clinical presentation or the scan appearances. 

[27]      Accordingly on 18 September the appellant and TH attended a case conference within the hospital at which they were told that X’s injuries were non-accidental and that either or both of them were believed to be responsible.  During this meeting discussion took place regarding the placement of X with the social work department given the concerns regarding both parent’s future care of him.

[28]      Following the meeting, when challenged by TH, the accused admitted that he had done something when he was trying to “shush” X.  He then spontaneously said “Oh my God, I’ve done this, I’m responsible for this”.  This was all he was prepared to say on this occasion. 

[29]      On the following day (ie 19 September 2013) TH’s aunt approached the appellant and told him that she knew what he had said and asked him what he had done.  The appellant then motioned as if with an imaginary baby in an upwards and downwards motion. 

[30]      On the evening of 19 September the appellant’s mother asked him if he had done anything to the baby.  She recalled that he at this stage broke down and said “Maybe I have caused the baby to be unwell”.  He told his mother that he had been “shoogling” the baby and indicated that he had been bouncing the baby on his knee.  He told his mother that he believed that the child’s head had been moving backwards and forwards.

[31]      The appellant’s mother then immediately approached TH and her aunt and said that the accused had something to tell them.  They then all made their way to a nearby seating area where the accused told them that he had been “shushing” the baby and he indicated an upwards and downwards movement with his hands while describing his actions.  TH confronted the appellant saying that this motion was not forceful enough to have caused X’s injuries to which the appellant replied, “Yeah but I was shushing him” and he began to make a backwards and forwards movement.  TH’s aunt asked the appellant if he had held X tightly and the appellant replied, “Yeah because I was shushing him”. 

[32]      The appellant was very distressed during this exchange and he described the context of these events as being when X would not stop crying.  TH’s aunt then asked him if he had “lost it” and the appellant replied, “I don’t know, I was tired”.  The appellant then went on to say that he had not mentioned anything sooner as he did not want to lose X, TH and his family. 

The approach of the sentencing judge in making his decision
[33]      As he explains in his report to this court, the sentencing judge considered that the main difficulty with the case and the matter which gave him concern was what he described as the appellant’s position in relation to the offence.  What the sentencing judge meant by that was that whereas the appellant had pled guilty to an assault, and therefore a deliberate attack, on his infant son, on other occasions, for example when speaking to police officers and the author of the criminal justice social work report, he had said that what occurred had been an accident and that he “never meant it to happen”.  He had been adamant, when speaking to the author of the criminal justice social work report that he had not meant to harm his son.  However, the appellant had not provided an explanation of what precisely he had done. 

[34]      The sentencing judge recognised that there were mitigatory factors.  The appellant was a first offender who had previously been of good character and until this event had apparently been a loving and caring fiancé and father who was both hard–working and respectable.  The appellant was still relatively young.  The charge to which the appellant had pled guilty had been reduced from the original charge of attempted murder.  The appellant’s plea provided significant utilitarian value particularly having regard to the fact that TH was not required to give evidence.  Nevertheless this was a violent assault on a very young child.  The sentencing judge listed the factors to which he had particular regard to in passing the sentence as follows: 

1.         The fact that the appellant accepted by his plea of guilty that he had deliberately attacked his infant son with evil intent while the child was in his sole care.

2.         That he was the child’s father and had therefore had a duty of trust towards the child.

3.         That the exact degree of violence used against the child could not be determined because the appellant refused to say what had happened.

4.         That the refusal of the appellant to say what had actually occurred at an earlier stage meant that treatment to the child was delayed.  He delayed in saying what had happened because he did not wish to be blamed for the injury and all the consequences thereafter.

5.         The consequences for the victim are catastrophic.  The possibility of the child having any meaningful life is unlikely.

6.         The effect on TH;  she too was a victim as appeared from the victim impact statement she had prepared in respect of herself and X, the terms of which were heart wrenching. 

Submissions on behalf of the appellant
[35]      Mr Lenehan, who appeared on behalf of the appellant, immediately acknowledged that this was a tragic case where the consequences for this very young child and those who had responsibility for caring for him had been catastrophic.  These catastrophic consequences must be reflected in the sentence imposed by the court but so must the degree of culpability of what the appellant had pled guilty to.  Moreover, in determining whether the starting point selected by the sentencing judge was excessive, as Mr Lenehan submitted it was, regard must be had to other sentences which had been imposed by the court in comparable cases. 

[36]      Mr Lenehan was critical of the sentencing judge’s approach.  The sentencing judge had seen a lack of candour on the part of the appellant and from that appeared to have inferred something sinister.  The degree of force which the appellant must be taken to have used was clearly important in assessing the degree of his culpability.  However, the sentencing judge was not entitled to go beyond the medical opinions with which he had been provided as part of the narrative of facts.  As could be seen from these opinions, the injuries sustained by X were consistent with a single episode of shaking.  Indeed, the injuries to the brain were only consistent with a rotational head injury secondary to such an event.  This was not a case where there was support for the occurrence of an incident involving the application of severe force and it was not safe to assume that the catastrophic injuries which had occurred would have been the foreseeable consequence of such force as had been used.  In reporting to this court, the sentencing judge had accepted that the event which caused the injuries need not have been one of severe violence but went on to observe that that did not mean that severe violence had not been used.  This suggested that there had been an element of speculation on the part of the sentencing judge when considering the degree of culpability which was associated with the appellant’s conduct.  While this was clearly an emotionally charged case, involving catastrophic injuries to a child with a resultant substantial impact on the life of his mother, justice nevertheless required that the sentencing process should remain focused on the precise medical opinion provided in the narrative, rather than assuming the worst in the face of a taciturn appellant. 

[37]      Mr Lenehan then turned to consider two Scottish cases which, in his submission, indicated that the 10 year starting point selected by the sentencing judge was too high.  The first of these cases was Her Majesty’s Advocate v IWKM 2003 SCCR 499.  In that case M was convicted after trial of assaulting one baby in 1987 by asphyxiating him to his severe injury and the danger of his life;  then in 1988 repeating such an assault and killing the baby.  He was further convicted of assaulting a second child by asphyxiation to the danger of his life on various occasions and assaulting a third child in 1995 and later by repeatedly assaulting him by asphyxiation, by squeezing and shaking him, by crushing his fingers all to his severe injury and to the danger of his life and then asphyxiating that third child to death in March 1996.  The trial judge noted no signs of stress or inability to cope on M’s part.  There was no remorse.  M was initially sentenced to seven years imprisonment.  That sentence was increased on appeal by the Crown to a sentence of 10 years imprisonment.  It was Mr Lenehan’s submission that if 10 years imprisonment was the appropriate sentence for the culpable homicide of two children, following repeated assaults and assault on a third child, then the sentencing judge’s starting point in the present case was very clearly too high. 

[38]      The second Scottish case to which Mr Lenehan referred was RB v Her Majesty’s Advocate 2004 SCCR 443 where a father pled guilty to the culpable homicide of his child by seizing it by the throat and placing his hand over its mouth and nose until the child died from asphyxiation.  On appeal the original sentence of 12 years imprisonment was reduced to nine years imprisonment.  The plea had been tendered one week before trial.  The sentencing judge in that case had expressed the view, unchallenged by anything said by the Appeal Court, that the culpability of the appellant very nearly approached the wicked recklessness required for murder.  Again, it was Mr Lenehan’s submission that this was more serious a case than the present and, accordingly that should have been reflected by the sentencing judge adopting a lower starting point than the 10 years selected by him. 

[39]      Mr Lenehan explained that he had been unable to find any Scottish reported decisions involving catastrophic injury to a baby consequent upon shaking.  He had, however, identified two English cases.  Both were cases where the accused had been found guilty of contraventions of the Offences Against the Person Act 1861.  The first of these cases was R v Andrea Weaver.  This was a plea of guilty to a contravention of section 20 of the 1861 Act by inflicting grievous bodily harm.  This offence is to be contrasted with that of causing grievous bodily harm with intent in contravention of section 18 of the 1861 Act.  The appellant in Weaver pled guilty on the basis that having momentarily lost control as a result of temper she had become angry with her eight month old child and shaken him and dropped him on the carpet.  The child had suffered acute subdural haemorrhage in consequence of which he was left with a permanent and significant brain injury, almost total blindness and severe delays in his development.  The Court of Appeal held that the sentence of two years imprisonment imposed on the appellant was not in the least excessive. 

[40]      The second English case referred to by Mr Lenehan was that of R v SS [2014] EWCA Crim 2917.  This was a case where the appellant was found guilty after trial of having caused grievous bodily harm with intent to his eight week old son, in contravention of section 18 of the 1861 Act, and sentenced to seven years imprisonment.  The expert evidence at trial had been that the injuries sustained by the child were the classic signs of a baby being forcibly shaken and/or thrown into a cot or onto a sofa.  The child suffered acute subdural haemorrhage, with the left side of the head particularly affected, and extensive retinal bleeding with petechiae and the neck indicating that he had been gripped there.  The only possible cause of the injuries was trauma and considerable force would have been required to produce them.  The injuries are described as devastating and potentially life‑threatening.  Although no clear prognosis was available there was a risk of the child having a cognitive deficit.  In the opinion of the Court of Appeal the trial judge had been entitled in all the circumstances to pass a sentence of seven years imprisonment.  The sentence could not be said to be manifestly excessive. 

[41]      As Mr Lenehan pointed out, the Sentencing Council in England has issued a Definitive Guideline in respect of assault which includes guidelines relating to contraventions of section 18 and section 20 of the 1861 Act. 

[42]      While acknowledging that the English Guideline does not have authoritative status in Scotland, Mr Lenehan commended it as instructive in providing appropriate sentencing ranges in comparable cases.  Like Weaver and SS the present case fell within the Guideline’s offence category two (greater harm and lesser culpability).  In such a case, an offence prosecuted under section 20 of the 1861 Act would attract a sentence in the range of one to three years with a starting point of one year and six months.  If prosecuted under section 18, it would attract a sentence in the range of five to nine years with a starting point of six years. 

Decision
[43]      We understand why the sentencing judge described this as an extremely difficult case.  As is illustrated by the English Guideline, in cases of assault, and indeed culpable homicide, it will often be possible to identify a range of appropriate sentences by considering two independent factors:  the culpability of the offender’s act and the severity of the consequences of that act.  Then, insofar as not already included within the principal factors, mitigating and aggravating features may be referred to in order to determine where in the appropriate range a particular case lies.  However, deciding upon the culpability of the act depends upon knowing just what happened and why.  Here the sentencing judge considered that he did not have that information and that responsibility for that lay with the appellant. 

[44]      We have seen the force in the criticism advanced by Mr Lenehan that the sentencing judge treated the appellant’s unwillingness or inability to reveal exactly what had happened as having a sinister quality about it, allowing the judge to approach sentencing upon the basis that the violence used may have been more severe than the medical opinions would necessarily support.  If that was the sentencing judge’s approach, and there is enough in his report to this court to suggest that it was, then he was in error.  Difficult as it was, his task was to proceed upon the information provided to him and to avoid speculation.  Here, that information included the fact that the appellant had pled guilty to an assault (and therefore a deliberate attack) upon a very young and therefore vulnerable child but Mr Lenehan was justified in saying that it also included the facts that this did not necessarily involve severe force and that it would not be safe to assume that it would have been evident to the appellant that the force he did use would be likely to cause catastrophic injury. 

[45]      That the appellant’s actions did cause catastrophic injury is the other principal factor in determining the appropriate sentencing range.  In our opinion, taken with the culpability to be inferred from the information provided to the sentencing judge, it points to a substantial custodial sentence, albeit one mitigated by the appellant’s youth, his absence of previous convictions and his otherwise good character, both generally and as a young father. 

[46]      However, if a sentence is to reflect the relevant factors in a disposal which achieves comparative justice, regard must be had to the sentences which have been pronounced in earlier comparable cases.  In this respect we are persuaded that the sentencing judge’s starting point of 10 years does not sit well with what was decided in the Scottish cases of M and RB.  On any view, this case is not as serious as M where a sentence of 10 years was imposed by the Appeal Court or RB where the Appeal Court expressed the view that a starting point of 11 years was appropriate.  We would agree with Mr Lenehan that that has to be reflected by a significantly lower sentence in the present case.  Mr Lenehan also relied on the two English cases which were cited and the Guideline which informs sentencing decisions in England and Wales.  We have not found this English material to be of assistance.  Both the two cases cited and the guidelines to which Mr Lenehan drew our attention related to purely English statutory offences.  How precisely these offences relate to aggravated common law assault as that offence is understood in Scotland is not clear.   These particular guidelines and these particular offences fall to be fitted into a larger structure, about which we know nothing.  Whether, overall, the English approach to sentencing is similar to the Scottish approach to sentences in cases which in Scotland would be prosecuted as common law assaults, again is something about which we know nothing.  We have therefore left the English material aside.    

[47]      In all the circumstances we are persuaded that the starting point of 10 years selected by the sentencing judge in this case was excessive when compared with previous decisions of this court.  In our opinion a starting point of seven years imprisonment would better reflect the factors relevant to the sentencing decision.  The sentencing judge allowed a discount of 25% from his starting point by reason of the appellant’s plea of guilty.  While this may seem generous given the stage at which the plea was tendered, this is a case where the Crown was persuaded to delete the allegation of attempted murder and significant utilitarian benefit was achieved by avoiding a trial.  No point was taken on discount and we would propose to apply the same level of discount as that selected by the sentencing judge.  We shall accordingly quash the sentence imposed by the judge and substitute a sentence of five years three months, that being a sentence of seven years discounted by 25%.  It shall run from the date upon which the sentencing judge imposed his sentence.