Vestuto, R. v

On an appeal against sentence, the court must assess whether the term imposed is excessive by reference to the totality of the offending. A sustained, deliberate and persistent course of conduct which knowingly exposes helpless children to grave risk may justify a substantial custodial sentence. Mitigation, including an absence of intent to cause harm, personal background, a guilty plea and the future consequences for the offender, must be weighed against the gravity and duration of the conduct. On the facts, a six-year sentence for causing or allowing a child’s death under section 5 of the Domestic Violence Crime and Victims Act 2004 was not excessive.

The appellant pleaded guilty at the Central Criminal Court to causing or allowing the death of her 18-month-old son, contrary to section 5 of the Domestic Violence Crime and Victims Act 2004, and to cruelty to her other young son, contrary to section 1(1) of the Children and Young Persons Act 1933.

She had administered Amitriptyline to both children over time. One child died from Amitriptyline intoxication and the other was exposed to the drug. She received six years’ imprisonment for the death offence and 12 months’ imprisonment concurrently for cruelty. With leave, she appealed on the ground that the six-year sentence was manifestly excessive, particularly given the basis of plea and mitigating circumstances.

1. The appeal was dismissed. The court held that the six-year sentence was not excessive when assessed against the totality of the offending.

2. The appellant’s conduct was not an isolated or impulsive response by an overwhelmed carer. It was a sustained, determined and persistent course of administering an adult sedative drug to two helpless children for selfish purposes. She knew from the outset that doing so was wrong and risky.

3. The seriousness was increased because she continued after relatives had raised concern about the deceased child’s condition. The conduct caused one child’s death and could have caused the death of the other. Her subsequent denials also allowed the father and other family members to remain under suspicion for a lengthy period.

4. The sentencing judge had properly recognised the mitigation. It included the absence of an intention to cause harm, the appellant’s background, the timely guilty plea, the lack of other physical ill-treatment, and the likely permanent loss of her role as mother to her children. Those matters did not outweigh the gravity of the offending.

5. The concurrent 12-month sentence for cruelty and the six-year sentence for causing or allowing death therefore remained undisturbed.

• Court of Appeal (Criminal Division): The appellant’s sentence appeal was dismissed: [2010] EWCA Crim 721.

• Central Criminal Court: Following guilty pleas, the appellant was sentenced to six years’ imprisonment for causing or allowing the death of a child and to 12 months’ imprisonment concurrently for child cruelty.