Neutral Citation Number:
[2008] EWCA Crim 1662
No:
2008/02057/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Friday, 16th May 2008
B E F O R E:
MR JUSTICE DAVID CLARKE
MR JUSTICE MACDUFF
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R E G I N A
-v-
WILL SMALL
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Mr AJ Ailes
appeared on behalf of the
Appellant
Miss A Brown
appeared on behalf of the
Crown
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J U D G M E N T
1.
MR JUSTICE MACDUFF: This is an appeal against sentence brought with the leave of the single judge. The single judge also directed that the appeal should be expedited.
2.
The appellant, Will Darren Small, now aged 30 years, was sentenced on 28th March 2008 to a total of 30 months' imprisonment by His Honour Judge Boggis QC, sitting at Southampton Crown Court, on two counts of causing cruelty to a child. A third count (count 2 on the indictment) was ordered to lie on the file.
3.
The background facts are these. The appellant, who is a man of previously good character, started to cohabit with his ex-partner in 2004. She is the mother of four children, one of whom was B, then aged 5 years. During 2005 and 2006 it was noted at school that B, from being a relatively happy, smiling child, had become tearful and unsettled. In due course, the staff became concerned, not only at the change in the child but also because they became aware of other home issues. Thus it was that they contacted the police with those concerns. The appellant was then arrested.
4.
It was clear that the child was being subjected to a particularly harsh regime of discipline. She was, as the appellant was to admit, treated differently from her siblings. She was sent to her room for long periods, sometimes for day following day, albeit that she was not locked in, was free to leave her room to get drinks, to attend meals, to visit the lavatory and, of course, to go to school. Her different treatment appears to have resulted substantially from the fact that she was perceived to behave differently and in a more challenging way than her siblings. There is nothing to suggest that they would have fared any better if they had been behaving in the same way as B.
5.
Sending to the bedroom was a regular form of discipline in the household, jointly imposed, and this was acknowledged by both the appellant and the mother. I may record at this stage that the mother was arraigned on the first count of the indictment. She pleaded not guilty and the count was left on the file not to be proceeded with.
6.
Count 1, on a three-charge indictment, covered a period from 2006 to March 2007 and in the broadest terms was based upon what was referred to as an inappropriate regime of discipline. During this period, B was sent to her room for long periods. The appellant regularly shouted at her and made her feel unwanted. There is no doubt that she was an unhappy child and was distressed by the treatment meted out to her. Perhaps the most hurtful threat was that she would be taken into care.
7.
Save for one incident, there was no violence used upon her. That incident was the subject of count 3. After B had shouted at her sister, the appellant put masking tape over her mouth. This he admitted. He also expressed regret for that action.
8.
We should mention other matters. The appellant had no children of his own. He had no previous parenting experience. He put forward a basis of plea which was accepted by the prosecution and by the judge. We have been able to read that basis of plea.
9.
In his very full sentencing remarks, the learned judge expressed the view that the appellant had gone out of his way to target B for a regime of ill-treatment and bullying. He used the word “bully” several times in the course of his sentencing remarks. The Defendant had caused B mental distress and had caused in her a change of personality. The judge described the placing of sticky tape over her mouth as unforgivable. He noted the basis of plea, namely that the defendant had instituted a regime of overzealous discipline to deal with a difficult child, but the judge dismissed as out of hand that the appellant’s actions could be ascribed to B's own behaviour. That her siblings were well turned out and well treated only pointed to the conclusion that B had been singled out for what the judge rightly described as disgraceful treatment.
10.
The judge acknowledged that the appellant was not a dangerous offender and should be given some, though limited, credit for his pleas. There were aggravating features: the targeting for treatment which was different from that given to her siblings, coupled with the threat to have her sent into care.
11.
It has been submitted before us that the sentence was manifestly excessive and that the judge erred in principle. This is a proposition with which we agree. It seems to us to be clear that the judge was not loyal to the basis of plea, and that he reached conclusions that he was not justified in reaching.
12.
What the judge failed to have in mind were the following important matters. First, there was undisputed evidence that the appellant had made attempts to obtain assistance from the NHS, from the school and from the social services. On one occasion, he telephoned NHS Child Guidance, requesting that a pre-arranged appointment be brought forward. There is much evidence that the appellant was confused, and acknowledged that he did not know how to react to B’s bad behaviour. There is much evidence that he was requesting help from the appropriate services. Having read all the papers carefully, including the pre-sentence report, we have to say that we agree with the submission of counsel for the appellant that the Defendant was presenting as an inexperienced parent, towards the end of his tether, seeking assistance. He was perplexed at how to cope with this child. He saw her as an ill-behaved child. He did not know how to deal with her. Neither did the mother. And so they resorted to punishment and exclusion, rather than inclusion and encouragement. Sadly, the more punishment she received, the worse she got. And so the spiral continued with more of the same. We repeat; these were the actions of a bewildered parent, doing what he mistakenly believed to be the right thing. These were not the actions of a gratuitous bully.
13.
The basis of plea included this. When B was behaving badly, as she undoubtedly did from time to time for whatever reason, she was sent to her room. This was normally between evening mealtime and bedtime. She came out of the room at will for the lavatory and she went to school. She was given the opportunity to behave better and to rejoin the family. The learned judge paid lip service to the basis of plea, but it is clear that he did not accept it and formed his own judgment based, in part, upon the hectoring tone adopted by the appellant in letters to the school.
14.
Nor, in our judgment, was the judge entitled to observe, as he did on more than one occasion, that her unhappiness and distress were caused by the treatment given to her by the appellant. The implication in these observations is that her unhappiness and distress were wholly the result of this treatment. Of course, the inappropriate way in which she was punished undoubtedly made a significant contribution, but there were clearly many more complex issues lying behind the child's disturbed behaviour. There were complicated family dynamics at work, with sibling rivalries, step-sibling rivalries and, particularly, an emotional reaction in a small girl missing her own father, who had vanished from her life.
15.
What happened here, and this seems to have eluded the learned judge, is that the appellant (as well as the mother) reacted to B's behaviour, caused in the first place by her underlying unhappiness, by sending her to her room. This exacerbated the distress, and the whole thing, as we have previously observed, spiralled out of control.
16.
A judgment that the appellant was a gratuitous bully, who targeted this unhappy little girl for no reason, was to misunderstand the position. It seems to have been understood by everybody, except the learned judge, that this little girl's unhappiness, almost certainly triggered by the change in family circumstances, caused her to behave in a challenging way. What she required was love and inclusion, not discipline and isolation. The carrot rather than the stick. Sadly, the appellant and the mother failed to appreciate this. Not through wilful wickedness, but because of inherent parenting inadequacies. They saw it as a discipline problem and gave her more of the same. This, we repeat, was not the response of a bully, but the response of a bewildered man, and we may say bewildered woman, not endowed with adequate parenting skills. This is borne out in our view by the fact that in the earliest days the appellant and B had a good relationship.
17.
We mention one other matter. There was reference to sentencing guidelines. The judge took the view that this case fell squarely within the second of four categories of seriousness, whereas it was submitted on the appellant's behalf that the case was within the lowest category. A problem with the guidelines, it seems to us, is that the terms “neglect” and “ill-treatment” can include many different types of behaviour. What is clear in this case is that the appellant was not in any way abusing the child, either by physical violence or deprivation of food, clothing, shelter or attendance. Our courts, sadly, are used to dealing with such cases; cases which are at the more serious end of the range. If this case is truly in the second category of seriousness, we can only say that the dividing lines are in strange positions. We do not regard this as a case within that category.
18.
Even if the case were deemed to fall into a more serious category, we are firmly of the view that there were not the aggravating features, which the judge purported to find. There were very many mitigating features.
19.
In a balanced and well-argued pre-sentence report, a recommendation was made for a community disposal with a supervision requirement. There was a low risk of re-offending and there were a number of pointers against imprisonment. The learned judge appears to have paid scant regard to this report.
20.
For the sake of completeness, for the purpose of this judgment, we note that the appellant has now left the household and will return to live with his mother, well away from this family.
21.
We consider, as did the single judge, that the learned sentencing judge did not give due weight to the mitigating factors. We are of the view that this sentence was manifestly and grossly excessive. We would allow the appeal and substitute our own sentence of a community order with a supervision requirement of 2 years, noting that that will include a good parenting course.
22.
MR JUSTICE DAVID CLARKE: Thank you very much.
23.
Will Small, just stand up. Have you heard what my Lord has said?
24.
THE APPELLANT: I have.
25.
MR JUSTICE DAVID CLARKE: Do you understand that a community order makes a very strong requirement of full co-operation and commitment on your part?
26.
THE APPELLANT: I do.
27.
MR JUSTICE DAVID CLARKE: You will have explained to you, if you do not know already, what the consequences would be of any breach or failure of co-operation; do you understand that?
28.
THE APPELLANT: Yes, I do.
29.
MR JUSTICE DAVID CLARKE: Very well.
30.
I would like him to be seen by the liaison probation officer.
31.
THE ASSOCIATE: Is that concurrent on both counts?
32.
MR JUSTICE DAVID CLARKE: On both counts.
33.
MR JUSTICE MACDUFF: Yes, on both counts.
34.
THE ASSOCIATE: Would your Lordship be minded to confirm the press restriction in relation to identifying the complainant in this case?
35.
MR JUSTICE DAVID CLARKE: An order was made, I think Mr Ailes and Miss Brown, in the lower court that there was no restriction on publication of the appellant's own name but there should be no identification relating to the children.
36.
MR AILES: My Lord, that is right.
37.
MR JUSTICE DAVID CLARKE: Should the same follow now? There is no reason not to, is there?
38.
MISS BROWN: Yes, there is no reason not to.
39.
MR AILES: There is no reason not to.
40.
MR JUSTICE DAVID CLARKE: There is no reason why the appellant's own identity should be protected? I do not think we would have power to do it.
41.
MR AILES: Except in so far as it might identify the child.
42.
MR JUSTICE DAVID CLARKE: I take it some publicity may have been given to this case at the time.
43.
MR AILES: In the Salisbury local papers, I think it was.
44.
MR JUSTICE DAVID CLARKE: In which event, this result may well be reported likewise.
45.
MR AILES: My Lord, yes.
46.
MR JUSTICE DAVID CLARKE: Very well. The position remains the same. We confirm that no identification should be made of the child's name or anything which would identify her, but that is not prohibition on naming the appellant himself. Thank you.