RP, R. v

A sentencing court must assess an offender’s culpability on the accepted basis of plea and the offender’s own conduct. It must not allow the more serious offending of a co-defendant to affect that assessment.

Custody is justified only where the seriousness of the particular offence makes it unavoidable. Low-grade neglect, arising from a general failure of care rather than deliberate violence, may fall below that threshold when substantial personal mitigation and a low risk of further harm are present.

The appellant pleaded guilty at Swindon Crown Court to six counts of cruelty by neglect of children for whom he was responsible, contrary to section 1(1) of the Children and Young Persons Act 1933. He accepted neglect only between August and November 2004.

His wife had separately committed far more serious violence against one child and was sentenced for that offending and for cruelty to the children. The appellant was at work during the violent incidents. The Crown Court sentenced him to seven months’ imprisonment concurrently on each count.

He appealed against sentence by leave of the Single Judge. The central issue was whether immediate custody properly reflected the limited basis of plea, the nature of his neglect, and his personal mitigation.

1. Appeal allowed. The concurrent sentences of seven months’ imprisonment were quashed. A probation order for 12 months was substituted on each count.
2. A sentencing judge had to sentence the appellant for the neglect he admitted: a failure of care between August and November 2004. The judge did not make clear that he had fully understood that limited basis of plea. Some of his remarks suggested that he had treated the appellant as responsible for a longer period and had allowed the severe view properly taken of the wife’s separate offending to affect the sentence.
3. The court accepted that the appellant bore shared responsibility for serious neglect. However, this was not deliberate assault. It was low-grade neglect marked by a general failure of care, during a period when the appellant was exhausted, stressed and unable to cope with serious domestic and personal problems. His failure to seek help was itself a manifestation of those difficulties.
4. The sentencing guidance in R v Durkin [1989] 11 Cr.App.R(S) 313 did not require punishment or custody on these facts. The appellant had no previous convictions, was remorseful, had a history of depression, had a strong employment record, and presented a reduced risk of reoffending or harm.
5. The offence was not so serious that only custody could be justified. The proper response was leniency and mercy, together with help and assistance through probation.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted 12-month probation orders for concurrent sentences of imprisonment ([2007] EWCA Crim 1852).
• Crown Court at Swindon: On 30 May 2007, sentenced the appellant to seven months’ imprisonment concurrently on each of six counts of child cruelty by neglect.