Challis, R. v

In sentencing for causing or allowing a child to suffer serious physical harm under section 5 of the Domestic Violence, Crime and Victims Act 2004, assault sentencing guidelines may provide only limited assistance. They do not determine the appropriate starting point or range for an offence with a distinct nature and a higher statutory maximum.

Serious brain injury caused by shaking a very young and vulnerable child, coupled with deliberate infliction of pain, establishes high culpability. The sentencing court must assess the seriousness of the whole offending and its potential consequences. A sentence will not be manifestly excessive merely because a guideline for a different offence suggests a lower range.

The applicant was convicted after trial of causing or allowing his three-and-a-half-month-old son to suffer serious physical harm contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. While in the applicant’s sole care, the child sustained an acute subdural haemorrhage and bruising. The prosecution case was that the brain injury resulted from shaking and that other injuries had been deliberately inflicted.

Singh J sentenced the applicant to three years’ imprisonment. He used the Assault Definitive Guideline as limited assistance. The applicant sought leave to appeal his sentence. He contended that the offence should have fallen within category 2 of that guideline and that insufficient weight had been given to his developing relationship with his son.

The central issue was whether the three-year sentence was manifestly excessive.

1. Leave to appeal sentence was refused. The applicant had been convicted of a very serious offence, and the sentence had to reflect that seriousness.

2. The court rejected the submission that the Assault Definitive Guideline fixed either the starting point or the proper sentencing range. Its guidance for inflicting grievous bodily harm under section 20 of the Offences Against the Person Act 1861 was of limited assistance only. That offence differs from the section 5 offence, including because the latter carries a maximum sentence of ten years’ imprisonment.

3. The court also considered the guideline concerning assault on children and cruelty to a child under section 1(1) of the Children and Young Persons Act 1933. Although that offence has the same maximum penalty, its seriousness categories did not readily apply to the facts. It too provided limited assistance rather than a determinative framework.

4. The applicant had sole care of an extremely vulnerable infant. He shook the child with sufficient force to cause a brain bleed and deliberately inflicted painful injuries to the child’s ears and penis. Although the child was expected to suffer no lasting harm, the applicant could not have known that at the time, and the consequences could have been disastrous. Those features made him highly culpable.

5. A sentence of three years’ imprisonment following trial was not manifestly excessive and, if anything, was merciful. The court declined to give general guidance on sentencing under section 5 because it had insufficient material. The judgment did not indicate that three years’ custody would be appropriate for all offences of that kind.

• Court of Appeal (Criminal Division): The applicant sought leave to appeal a three-year sentence for an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004. Leave was refused.
• Crown Court: Singh J sentenced the applicant to three years’ imprisonment after conviction following trial.