Small, R v

In a sentencing appeal, a judge must remain faithful to an agreed basis of plea and must not treat disputed or unsupported conclusions as aggravating facts. The seriousness category for child cruelty must reflect the actual conduct. Broad descriptions such as neglect or ill-treatment encompass a wide range of behaviour.

Where an inexperienced parent has used seriously inappropriate discipline while seeking help and without gratuitous cruelty, the court must give proper weight to the substantial mitigation. A custodial sentence that rests on an unjustified characterisation of the offender and inadequate weight to mitigation may be manifestly excessive and replaced by a community order.

The appellant pleaded guilty at Southampton Crown Court to two counts of causing cruelty to a child. A third count was ordered to lie on the file. He received a total of 30 months’ imprisonment.

The offences concerned an inappropriate disciplinary regime directed at his former partner’s five-year-old daughter, including sending her to her room for lengthy periods, shouting at her and, on one occasion, placing masking tape over her mouth. The prosecution accepted a basis of plea that described overzealous discipline used by an inexperienced parent struggling to manage challenging behaviour.

With leave of the single judge, the appellant appealed his sentence as manifestly excessive and wrong in principle. The central issue was whether the sentencing judge had fairly applied the agreed basis of plea and properly assessed seriousness, aggravation and mitigation.

1. Appeal allowed. The sentence of 30 months’ imprisonment was manifestly and grossly excessive. The court substituted a community order with a two-year supervision requirement, including a parenting course, on both counts.
2. The sentencing judge was not entitled to depart in substance from the accepted basis of plea. His characterisation of the appellant as a gratuitous bully who had deliberately targeted the child for ill-treatment was unsupported by the material before him. The evidence instead showed an inexperienced and bewildered parent, who had sought assistance from health, school and social services but responded to the child’s difficult behaviour with inappropriate punishment and exclusion.
3. The appellant’s conduct made a significant contribution to the child’s distress, but the judge was wrong to treat that distress as wholly caused by him. The evidence identified wider family and emotional circumstances underlying the child’s behaviour. The appellant’s inadequate parenting response exacerbated an existing problem; it did not justify the judge’s finding of wilful, gratuitous cruelty.
4. The sentencing guidelines’ categories had to be applied by reference to the nature of the actual ill-treatment. The appellant had not physically abused the child or deprived her of food, clothing, shelter or schooling. The case did not fall within the second category of seriousness identified by the judge, and the asserted aggravating features were not established.
5. Proper weight was required for the low risk of reoffending, the accepted basis of plea, the appellant’s previous good character, his attempts to obtain help, his lack of parenting experience and the pre-sentence report’s recommendation of supervision in the community. Those considerations made a community-based sentence appropriate.

• Court of Appeal (Criminal Division): Allowed the sentence appeal and substituted a community order: [2008] EWCA Crim 1662.
• Southampton Crown Court: On 28 March 2008, sentenced the appellant to a total of 30 months’ imprisonment for two counts of causing cruelty to a child.