Repasi, R v

For sentencing an offence under section 5 of the Domestic Violence Crime and Victims Act 2004, the child-cruelty guideline may provide the closest comparative framework where no specific guideline applies. The assault guideline is less useful because the section 5 offence concerns a carer’s failure to protect a child from serious physical harm, for which the infliction of harm is implicit.

Seriousness remains fact-sensitive. The court should avoid double counting vulnerability and abuse of trust where they are inherent in the offence. Repeated injuries, their nature, and any failure to obtain medical help may affect sentence. A sentence within the proper bracket is not unduly lenient merely because a higher sentence could also have been imposed.

The Solicitor General applied under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient the sentences imposed on Orsolya Noemi Repasi and Tamas Nemet after jury convictions at the Crown Court sitting at Kingston upon Hull.

The offenders were convicted under section 5 of the Domestic Violence Crime and Victims Act 2004 after a 14-week-old child sustained four non-accidental fractures on at least two occasions. The trial judge could not determine which offender had inflicted the injuries, but found each equally liable for causing the harm or failing to protect the child. He imposed three years’ imprisonment on Repasi and three-and-a-half years on Nemet.

The issue was whether those sentences fell outside the proper sentencing bracket and were therefore unduly lenient.

1. Leave was granted, but the reference was rejected. The court was not persuaded that either sentence was unduly lenient and declined to interfere. Both sentences were within the proper bracket for this offending.

2. Section 5 of the Domestic Violence Crime and Victims Act 2004 carries a maximum of ten years’ imprisonment. There was no specific guideline. The Child Assault Guidelines for child cruelty were the closest comparative guidance, particularly their category for a series of assaults and failure to protect a child from them. The assault guideline was of less utility because section 5 addresses a failure to protect, while the infliction of serious injury is implicit in the charge.

3. The judge was entitled to treat the offending as involving a series of assaults, repeated applications of force and immediate pain to a very young child. The lack of apparent long-term harm was also a relevant feature. Vulnerability and the relationship of trust between carer and child could not separately aggravate sentence because they were inherent in this domestic carer offence.

4. The failure to seek medical assistance for earlier injuries was capable of aggravating the offending. Conversely, an attempt to obtain medical help after serious physical harm may be taken into account in an offender’s favour, to an extent that depends on the circumstances.

5. The trial judge had presided over the trial and had identified the material factors. His inability to determine which offender inflicted the injuries did not prevent sentence for the statutory offence, because the necessary basis was awareness, or constructive awareness, of the risk and failure to take reasonable steps to avoid foreseeable serious harm.

• Court of Appeal (Criminal Division) — On the Solicitor General’s reference, the court granted leave but held that the sentences were not unduly lenient and left them undisturbed: [2018] EWCA Crim 2195.

• Crown Court sitting at Kingston upon Hull — Following jury convictions before HHJ Tremberg, Repasi was sentenced to three years’ imprisonment and Nemet to three-and-a-half years’ imprisonment on 15 June 2018.