About this case:

• Citation:
  [2022] NICA 69
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

The court accepted that this was a stiff sentence, but found it reasonable given the nature of the acts in question, and given the appellant’s lack of remorse.

Background

The appellant pleaded guilty to grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861, and sexual assault of a child under 13 by penetration, contrary to Article 13 of the Sexual Offences (Northern Ireland) Order 2008.

He was sentenced to 19 years’ imprisonment plus an extended licence period of five years. His appeal alleged that the sentence was manifestly excessive, and his guilty plea resulted in a 15 per cent reduction in his sentence, which he argued was inadequate.

The actions in this case were directed towards a 12-day old baby, the appellant’s son. In 2018 he told his partner that he would look after their child and took the baby upstairs. The following morning, the baby was not breathing properly and was blue around the lips.

The baby was rushed to hospital. Doctors found blood in the baby’s nappy and bruising around his stomach. He required high flow oxygen therapy, an intra-osseous line (into the marrow of his bone), and ventilation.

The baby went into cardiac arrest and was resuscitated. He spent 13 days in intensive care, during which he was ventilated for nine days. He was later discharged into foster care while the case was ongoing.

His injuries included brain injury, rib fractures, an arm fracture, substantial bruising and a sexual injury. It was reported that his injuries would have been “excruciatingly painful”, and that some of his injuries stemmed from being shaken.

The prosecution case

There was no explanation offered by the defence, so the judge relied on the facts presented by the prosecution. They argued that the most likely scenario was that the father carried out the penetrative assault on the child, and the excruciating pain led to the child being acutely distressed, so he sought to quiet him by forcefully shaking him.

The father accepted responsibility for the injuries to his son, although he denied the sexual offence. He also claimed that at the time of his arrest he was using two grams of cannabis a day. He showed a lack of empathy towards the mother of his child, and was upset that she applied to remove parental responsibility from him.

The ruling of the trial judge

In reaching his sentence of 19 years’ imprisonment, the trial judge noted that the child was “a helpless, small, vulnerable 12-day-old baby when these offences were perpetrated on him”. The child depended on his father, and almost died in his care.

Further, the father isolated the child from his mother by taking him upstairs. The father later showed a lack of remorse or empathy, especially towards the impact this event had on the child’s mother and brother.

As a result, the court found that the appropriate sentence would be 22-and-a-half years’ custody, with a 15 per cent reduction due to the father’s late stage guilty plea, resulting in a sentence of 19 years’ custody.

Discussion

In beginning their discussion, the court noted that this case involved two distinct offences, the maximum sentence for each offence being life imprisonment. The court found that a reasonable sentence for causing grievous bodily harm here was 13–15 years, while sexual assault by penetration was in the range of 13–19 years.

The defence argued that these were still excessive sentencing ranges, given that this was a single incident and the father had no relevant previous convictions. However, the court rejected this argument and found that the wide range allowed for appropriate discretion in cases of this nature.

The court accepted the judge’s decision to have the two sentences run concurrently. Here, the court noted that the England & Wales Totality Guidance 2012 state that “concurrent sentences will ordinarily be longer than a single sentence for a single offence”.

The court disagreed with the judge’s assessment that this crime was premeditated. The chronology, they found, did not align with a person deliberately taking the child into his care to assault him. However, this concession did little to change their position. The court simply noted that, had the offence been premeditated, the court would have imposed a higher sentence.

The court also found that the judge erred in including a lack of remorse as an aggravating factor. Remorse may act as a mitigating factor in a case, but is not an aggravating factor.

The court noted, however, that an aggravating factor was omitted by the trial judge, namely that the father’s attitude at the hospital and his resistance during the investigation caused the mother to lose the care of both of her children. This acted to balance out the mistake of including remorse as an aggravating factor.

Ultimately, these were found to be heinous crimes that justified deterrence. A judge could,“justifiably get to 22-and-a-half years before reduction for a plea”. The court argued that this may have been a stiff sentence, but it was also a just and proportionate one.

The court also highlighted that this case had almost no mitigating factors, and the appellant did nothing substantial to assist medical professionals, police or social services when the offences occurred. The prosecution also had to assemble considerable medical evidence, as did the defence, and it was only at the last minute that a guilty plea was entered.

Conclusion

After careful consideration, the court did not consider the sentence to be manifestly excessive, given the exceptional circumstances of the case.

The appellant perpetrated an extremely serious sexual assault which, if not premeditated, represented “depravity which right-thinking people would not begin to contemplate”. He provided no real explanation or remorse. There was no valid reason to interfere with the judge’s sentence, so the appeal was dismissed.