No. 2008/04098/A7
Neutral Citation Number: [2009] EWCA Crim 397

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Wednesday 25 February 2009

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MR  JUSTICE  CHRISTOPHER  CLARKE

and

MR  JUSTICE  HOLROYDE

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R E G I N A

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S H
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Mr A J Robertson QC appeared on behalf of the Appellant

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J U D G M E N T
Wednesday  25  February  2009

THE LORD CHIEF JUSTICE:  
1.  This is an appeal against sentence by S H who, on 19 June 2008, at the Crown Court at Sheffield, before the Recorder of Sheffield (His Honour Judge Goldsack QC), pleaded guilty to manslaughter (count 1) and to cruelty to a child under 16 years of age (count 3).  The victim of count 1 was the appellant's daughter, T, who was 3 years old, born in September 2004.  The victim of the second count (count 3) was her son E, born in September 2006 and who was just about one year old at the time of his sister's death.

2.  This is a pitiful case of child cruelty at the hands of a mother.  The appellant is an intelligent young woman of good character.  There is no suggestion of mental illness, psychiatric problems, or any kind of problem associated with a difficult home life or a dominant and dangerous husband.

3.  On 27 June the appellant was sentenced by Judge Goldsack to concurrent terms of twelve years' imprisonment on count 1 and three years' imprisonment on count 3.  He made an appropriate order under section 240 of the Criminal Justice Act 2003.

4.  The appellant's husband was the little girl's stepfather and the natural father of the baby boy.  He pleaded guilty to two counts of cruelty to children.  Count 2 involved cruelty to T and count 3 involved cruelty to his own son.  He was sentenced to five years' imprisonment.

5.  The appellant and her husband ran a public house in Sheffield.  The two children lived together with the appellant and her husband on the premises.  The living quarters where T's body was eventually found on 30 September 2007 were filthy, squalid, unsafe and a serious health hazard in a number of different ways.  We have seen photographs.  They are indicative of truly appalling, abject squalor.  There were dog faeces and other excrement in the living quarters where these children were.  That produced one health hazard.  The rooms in which they lived were full of highly dangerous electrical hazards.  These two little children were left unattended for long periods while the defendants went out and when they worked downstairs in the bar.  
6.  T was not fed properly during a number of different periods in her short life.  Her growth and her development were consequently retarded.  E, although he was cared for a little better, was nevertheless kept in conditions of squalor and deprivation.  

7.  During the week before she died, T had not been seen by anyone other than the appellant and her husband.  The husband had been away from the home at work during the whole of the week before she died.  Effectively this little child had been left alone.  

8.  A number of visitors to the public house, employees and friends recalled numerous occasions when the children were left alone in the living quarters.  When they were asked questions about it, the appellant and her husband would provide some colourable excuse that they were with one or other set of grandparents.  On one occasion one of the employees and a customer heard some noises upstairs.  They went upstairs to find the children alone, poorly dressed, fending for themselves, while the parents had gone out.  They spoke about that to the appellant.  An excuse was offered.  After that the appellant and her husband made sure that the door to their living quarters was locked every time they went out.

9.  In October 2006 (shortly after E's birth), the community midwife made an unscheduled visit to the premises.  The appellant's husband, who was behind the bar, said that the appellant was out and that he did not have access to their living quarters.  In due course the appellant returned.  She took the midwife upstairs.  There was E, only a few weeks old, dressed only in a nappy.  He was very cold, screaming and crying uncontrollably.  The appellant was given very firm advice about the necessity of caring for the child and in particular not leaving him on his own.  

10.  In the final few days of T's life, the husband took a job as a delivery driver and so he was away.  He said later, after T's death, that he had not seen her for about a week.

11.  Some footage from the CCTV cameras in the premises showed that during those last few days no one appeared to have looked after T at all.  The appellant was preoccupied with running the public house or going about her other business.  E was seen from time to time, but there was no sign of T.  It is of some significance to the culpability of the appellant that she was seen on CCTV footage to leave the premises to walk her dogs, that she had a conversation on the telephone with her husband about feeding her dogs, a discussion about the vitamins the dogs should receive and how one of them had some weight problems -- all this at a time when T was starving.  At one point the appellant was heard to make the comment to herself: "I ought to get my daughter up.  I have not seen her for a week".  However, there is no evidence to suggest that she did, in fact, check on T.  On another occasion she told the young daughter of a friend who asked, that T was at her "Nanna's".

12.  The Crown's case was that if the appellant or her husband (had he been available) actually checked, they would have found a very ill, or a dead child, suffering from, or having died from, desperate malnutrition.

13.  On the evening of 29 September 2007 there was a disco event at the public house.  Just after midnight, after everyone had left, a conversation between the appellant and her husband was caught on CCTV.  The appellant could be heard sobbing in the background.  Her husband was heard to say, "We've fucked it all up".  The appellant said, "What have I done?"  The husband said, "We're going to get banged up for this, everything took away from us.  I thought she was up yesterday".  He then breathed some words about the state of the place.  At that stage it is obvious that they had discovered that T was dead.  The appellant was heard to say, "When they arrest you or us they will take T away for examination and they will come and arrest us later".  Her husband later said that he did not know what to do.  "Look at the state of her.  She has obviously been dead for two days".

14.  A few hours later the appellant called the emergency services and reported that her daughter was dead.  The ambulance crew and the police arrived.  It was obvious that T had been dead for some time.  Her body was showing clear signs of decomposition.  The appellant and her husband were arrested.

15.  The post-mortem examination showed that the child was significantly underweight.  Although it was not possible to fix a time, she had in fact died two or three days before the telephone call was made to the emergency services.  Her malnourishment had caused terminal bronchopneumonia.

16.  When she was interviewed, the appellant made no comment.  In the end there is no explanation from her to account for what she had done to (or more accurately failed to do for) her children, and in particular T.

17.  The husband at first made no comment, but in later interviews he distanced himself from his responsibilities for the care of the children on the basis that it was his wife's job.

18.  The prosecution case, therefore, was one of utter neglect.  There is no doubt that both children suffered from systemic neglect -- more so in the case of the little girl than her baby brother.  Indeed this was a case of dreadful cruelty.  Throughout her life there were periods when T was simply not fed at all.  The evidence was there to be seen when her body was examined on post mortem.  It was therefore a prolonged period of neglect, illustrated by the fact that in October 2005 when she was weighed, T weighed 8.30kg, and when she died two years later, she weighed just 9kg -- an increase in weight of less than 1kg.  

19.  The appellant was born in May 1986.  She was of previous good character.  The pre-sentence report was illuminating.  The appellant said that T had been a "fussy" eater who had often refused food.  The author described the appellant as being "in denial" that the child was emaciated and suffered from malnutrition.  She accepted responsibility for the death of her daughter, that she was culpable for it, and she expressed sorrow.  But the author of the report felt that she presented herself in a way which appeared to be detached.  She said that there had been traumatic events from her childhood which had left her determined to deal with whatever life threw at her, but she denied that she had left the children alone for long periods.  It appeared (and the observation is justified on the evidence we have seen) that she did not take seriously the concern others expressed to her about the condition of her children.  She admitted that she had left the children unattended in the week prior to T's death because she said she was struggling to cope.  She refused to accept that her daughter had suffered from malnutrition.  There was no explanation that the author of the report could find for the appellant's failure to understand the consequences of her actions in relation to the basic care of her children.  

20.  A psychiatric report was obtained.  The psychiatrist's view was that the appellant was fit to plead.  There was no evidence of mental illness either generally or as at the time of the offence, and nothing to suggest the presence of any form of mental disorder.  She denied any dissatisfaction towards, or problems with, the relationship between her and her husband.

21.  The appellant had originally been charged with the murder of her infant daughter.  The Crown accepted a plea to manslaughter on the grounds of gross neglect.  The Crown supplied the judge with a note about a number of cases where something similar (not identical) to these events had taken place.  On the basis of those cases it was suggested to the judge that he should consider a sentence range of between nine to fifteen years' imprisonment, with an appropriate discount to be made for the guilty plea which the appellant had indicated at the earliest opportunity.  The Recorder considered all of this material.  He also considered such guidance as there was, though, fortunately, such cases are very rare.  He reflected on the appropriate level of sentence if the appellant had been convicted on the murder count which she had originally faced.  That would have been on the basis that the Crown would have proved a specific intention to cause her child really serious harm.  That was not this case.  The Recorder reflected on Schedule 21 to the Criminal Justice Act 2003.  Had the appellant been convicted of murder on that basis, he considered that a sentence with a minimum specified period in the range of 22 years would have been appropriate.

22.  In sentencing the appellant for manslaughter the Recorder set out his reasons for his decision in lengthy, careful sentencing remarks.  Among other things he noted were these.  First, the appellant had not answered a single question asked by the police following the discovery of the child's body.  That meant that no one knew precisely when she died and that what happened to T during the last few days of her life was known only to the appellant and possibly to her husband.  The Recorder examined the medical evidence about the day when the child had probably died.  He then said:

		"That you either did not know she was dead or if you did chose not to report the death until much later is the most potent evidence of the way you both failed utterly in your parental responsibilities to your daughter."

The Recorder was troubled by the "chilling conversation" that was recorded after the appellant and her husband had found the child's body and before the emergency services were called to the house.  The conversations showed concern not about what had already happened to the child, but to the possible consequences which they might face.  He recognised that the death of T was the culmination of "a long course of neglect" which had started after E's birth, and that both parents had also neglected the little boy.  The circumstances in which the children had lived were "disgusting", dangerous because of the electrical conditions, and filthy because of the dog dirt all about the place.  The Recorder noted that repeated lies had been told to members of the public who were customers at the bar and to the staff employed there about the whereabouts of the children.  He took into account that the appellant had been warned by Social Services that she should not leave the children alone after the midwife had found them locked in when it was claimed that the appellant was not present and the husband did not have a key.  They had "brushed aside" the concerns of Social Services.  He reflected on the fact that this little girl had been starved for some time, off and on, intermittently, all of which was evidenced by an examination of her bone structure "suggesting periods when she was fed properly, followed by periods when she was not".  He referred to the medical evidence that "T had neither food nor water for at least twenty hours before she died, and perhaps or even considerably longer than that".

23.  The criticism of the judge's sentencing decision is carefully advanced by Mr Robertson QC, to whom we are grateful in this difficult case for his careful submissions.  Essentially he says that if the Crown was right to put the sentencing bracket at between nine to fifteen years as a starting range, and if allowance is then made, as it should be, for the guilty plea and the full discount to which the appellant was entitled in view of the way in which her plea was developed, the resulting sentence is too long.  Attention was drawn to three decisions of this court: R v Watts [2002] 1 Cr App R(S) 228, R v Wright [2003] 1 Cr App R(S) 257 and R v Onley [2005] 1 Cr App R(S) 122.  Mr Robertson suggests that that was a sufficient indication of the appropriate range of sentence and that the Recorder must have started too high because he attended to the contents of Schedule 21 to the 2003 Act.

24.  We reject that submission.  The sentencing decisions in the previous cases gave a broad range of sentence applicable to those cases.  Allowance had to be made for the full discount for the guilty plea.  However, this was a case of cruelty which is beyond comprehension.  It is irreconcilable with the most basic human love that either a mother or a father should have for their child, and in particular the love a mother should have for her daughter.  It is manslaughter at the most culpable level.  There is no avoiding the stark reality that in Sheffield a little girl was shut away in disgusting conditions for months and months and months of her little life and that she starved to a lonely, unloved death while in her mother's home and when her mother had ample funds with which to provide her with food, as she provided food for her dogs.  The appellant was not an inadequate, disturbed young woman who was in some kind of psychologically debilitating relationship.  No excuse can be found in her background and history.  We find her conduct inexplicable.  No doubt everyone who knows the facts of this case will find her conduct inexplicable.  There is no excuse that we have been asked to consider and none that we can find.

25.  We well appreciate why, in the circumstances of this case, the Recorder, having reflected on the statutory sentencing framework and having carefully reminded himself that he was sentencing for manslaughter not for murder, came to the conclusion that it is difficult to imagine a worse case of this kind.  By comparison with the way in which his sister was treated, E was lucky.  But the neglect which E suffered was itself a serious crime.

26.  Notwithstanding Mr Robertson's submissions, we cannot conclude that the sentence imposed by the Recorder of Sheffield was either manifestly excessive or wrong in principle.  Accordingly, this appeal against sentence is dismissed.