Smythe & Anor, R. v

A sentencing court must not sentence an offender by reference to a definitive guideline which was not in force when sentence was passed. Sentence must instead reflect the seriousness of the offence, assessed by culpability and the harm caused, intended or foreseeably caused under Criminal Justice Act 2003, section 143.

Guidelines for a comparable offence may assist in identifying harm and culpability factors, but their utility may be limited where their seriousness categories do not readily fit the statutory offence. Under the offence of causing or allowing serious physical harm to a child, uncertainty over which parent inflicted the injury does not itself require different sentences where the sentencing findings support equal culpability.

The appellants were convicted at the Crown Court at Maidstone of causing or allowing serious physical harm to their 19-day-old baby, contrary to section 5 of the Domestic Violence, Crime and Victims Act 2014. The child died from pneumonia, but a post-mortem examination disclosed serious non-fatal injuries caused on more than one occasion.

Each appellant, previously of good character, received eight years’ imprisonment. The judge treated the offending as category 2A by reference to draft child-cruelty sentencing guidelines which were not then in force. The appellants appealed against sentence, contending that the sentences were manifestly excessive, that the draft guidelines had been wrongly used, and that their culpability should have been differentiated.

1. The appeals against sentence were allowed. The court quashed the eight-year sentences and substituted sentences of six years’ imprisonment for each appellant.

2. The judge erred in sentencing by reference to the categorisation in child-cruelty definitive guidelines which were not in force when sentence was passed. Those guidelines came into force on 1 January 2019 and applied only to offenders sentenced after that date. The court therefore declined to decide whether the conduct would have fallen within category 2A under those guidelines.

3. Sentence had to be determined by the seriousness of the offending under section 143 of the Criminal Justice Act 2003. That required consideration of culpability and of harm caused, intended, or which might foreseeably have been caused. The 2008 guidelines for assaults on children and cruelty to a child could assist in identifying relevant harm and culpability factors, but their categories did not readily apply to an offence under section 5. The court applied the observation in R v Challis [2016] EWCA Crim 526 that their assistance was limited.

4. Significant force had been used or allowed to be used, but the conduct was not prolonged and would not have had a permanent effect on the baby. In light of the seriousness, the appellants’ good character and their relative youth, sentences of eight years out of a maximum of ten years were both wrong in principle and manifestly excessive.

5. No distinction in culpability was justified. The statutory offence avoids the need to determine which defendant caused the harm and which allowed it. The trial judge, the single judge and the court were all satisfied that the facts did not warrant differentiating the appellants’ responsibility.

• Court of Appeal (Criminal Division) Allowed the appeals against sentence and substituted six-year sentences: [2019] EWCA Crim 90.

• Crown Court at Maidstone On 25 July 2018, convicted each appellant of causing or allowing serious physical harm to a child and sentenced each to eight years’ imprisonment.