Lindsay, R v

In sentencing for child neglect with tragic consequences, the court must reflect any material difference in the culpability of co-offenders. A custodial sentence may remain necessary, but its length must be individualised.

When deciding whether custody should be suspended, substantial weight may be given to the effect of immediate imprisonment on dependent children, alongside remorse, rehabilitation, risk and the circumstances of the offence. A rehabilitation activity requirement may require attendance at supervisory appointments without requiring participation in activities; in that event, no maximum number of activity days need be specified.

The appellant pleaded guilty at the earliest opportunity to neglecting her seven-week-old son. He died after both parents had consumed alcohol and cocaine. The evidence did not establish a conclusive cause of death, although overlaying was not excluded.

At Norwich Crown Court, the appellant and her partner each received 16 months’ immediate imprisonment. The appellant appealed on the basis that her culpability was lower than her partner’s and that the sentence should have been suspended.

The central issues were the proper distinction between the co-offenders’ culpability and whether the appellant’s personal circumstances, particularly the impact on her three children, justified suspension of the custodial term.

1. Appeal allowed. The appellant’s culpability was materially lower than her co-accused’s. She had not decided that the baby would remain at home, had not taken him to bed, and appeared unaware that he was in the shared bed. Her culpability lay in leaving him with a person unfit to care for him. The sentencing judge should therefore have differentiated their sentences.

2. The custody threshold was crossed. The court considered R v Ryan [2012] 1 Cr App R(S) 40 and the applicable child-cruelty guideline. A sentence of about two years after trial could be appropriate in a neglect case resulting in death. Allowing for the appellant’s lesser culpability, 18 months after trial, reduced to 12 months for the guilty plea, was appropriate.

3. Immediate custody was nevertheless not justified. The appellant posed no risk to the public or her children, was remorseful, abstinent and capable of rehabilitation. Following R v Petherick [2013] 1 Cr App R(S) 116, significant weight had to be given to the harmful effect of separation upon her dependent children, especially her infant child. The judge’s reasons did not show that those matters had been considered.

4. The judge should not have referred to draft gross-negligence manslaughter guidelines. They were only drafts and the appellant was not being sentenced for causing the child’s death.

5. The court substituted 12 months’ imprisonment, suspended for two years. It later corrected its initial supervision requirement because that requirement could no longer be attached to a suspended sentence. Under section 200A of the Criminal Justice Act 2003, it instead imposed a rehabilitation activity requirement for two years, limited to attendance at appointments as directed by the responsible officer and requiring no participation in activities.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence in [2018] EWCA Crim 2171. The court substituted a 12-month sentence suspended for two years, later replacing an initially imposed supervision requirement with a rehabilitation activity requirement.

• Crown Court at Norwich: On 20 July 2018, sentenced the appellant to 16 months’ immediate imprisonment after her early guilty plea to neglecting a child.