Wiltshire & Anor v R

Sentencing for causing or allowing a child’s death under Domestic Violence, Crime and Victims Act 2004, section 5 is fact-specific. The court must assess the offender’s culpability, the relationship with the victim, the breach of duty, and all aggravating and mitigating circumstances. Earlier decisions provide assistance but are not sentencing guidelines.

For sentence, constructive knowledge of a significant risk is less culpable than actual knowledge, although the difference is one of fact and degree. A defendant who only just lacked actual awareness may still fall near the upper end of constructive-knowledge cases. The person who allowed the death must not be equated with its perpetrator, but a grave and foreseeable failure to protect a child may nonetheless justify a substantial sentence.

The appellants, Imani’s parents, were acquitted of murder but convicted at the Central Criminal Court of causing or allowing her death contrary to section 5 of the Domestic Violence, Crime and Victims Act 2004. Each received 11 years’ imprisonment.

Imani, an exceptionally vulnerable premature infant, sustained severe injuries on at least three occasions while living with both appellants. The Recorder sentenced each appellant on the cautious basis that he or she had allowed the death and ought to have appreciated a significant risk of serious harm, rather than that either had caused the death or had actual knowledge of that risk.

On appeals against sentence, the central issue was whether sufficient weight had been given to the distinction between actual and constructive knowledge.

1. Appeals allowed. The Court quashed the 11-year sentences and substituted concurrent sentences of 10 years’ imprisonment for each appellant.

2. Section 5 creates an offence with a very wide range of culpability. Sentencing must therefore be fact-specific. The general approach to sentencing for manslaughter may assist, but R v Ikram and Parveen [2009] 1 WLR 1419 was not a guideline case. The court must consider all relevant circumstances, including the offender’s relationship with the victim and the nature of the breach of duty.

3. The Recorder had not equated either appellant with the person who inflicted the fatal injuries. In a case involving violence close to murder or the most serious manslaughter, however, a person who allows it may be highly culpable because of the failure to give the child appropriate protection from foreseeable violence.

4. The case had exceptionally serious aggravating features. Imani was defenceless and vulnerable. Both appellants abused positions of trust, failed to obtain medical help after grave injuries, colluded to deceive social services, and staged a deceptive episode after her death. Their conduct was a serious breach of duty.

5. Nevertheless, actual knowledge and constructive knowledge are distinct for sentencing, although not for conviction under section 5. Constructive knowledge is not a single category: culpability depends on how close the defendant came to actual awareness. These appellants were near the upper end of the constructive-knowledge range, but the Recorder had given insufficient weight to his finding that they only ought to have been aware of the risk. The resulting 11-year sentences were manifestly excessive.

6. The Court rejected the separate complaints concerning the impact on Wiltshire’s children and his allegedly lesser caring role. Given the seriousness of the offending, neither justified a further reduction or distinction in sentence.

• Court of Appeal (Criminal Division): Allowed the appeals against sentence, quashed sentences of 11 years’ imprisonment, and substituted sentences of 10 years’ imprisonment.

• Central Criminal Court: The Recorder of London convicted both appellants under section 5 of the Domestic Violence, Crime and Victims Act 2004 and sentenced each to 11 years’ imprisonment.