REGINA v DANIEL GOWER & Ors

When sentencing for ill-treatment or wilful neglect by a care worker, a guideline for a different offence may assist only by careful analogy. A court must not mechanically halve a guideline because the comparable offence has a maximum sentence twice as high, nor automatically transfer culpability uplifts from that guideline.

Substantial delay not attributable to the offender may materially reduce the proper sentence. It may also alter the balance on suspension where the offender has demonstrated remorse and rehabilitation through conduct during the intervening period. The final sentence must nevertheless reflect the seriousness of a deliberate breach of trust towards a vulnerable person and any time already spent in custody.

Three care workers pleaded guilty to ill-treatment or wilful neglect of a vulnerable resident during a holiday. Their conduct included humiliating, distressing and degrading acts which they recorded. On 19 January 2022, the Recorder of Gloucester sentenced each appellant to 18 months’ imprisonment under section 20(1) of the Criminal Justice and Courts Act 2015, with a statutory surcharge of £156.

The appellants appealed with permission. They accepted that the custody threshold was passed, but contended that the terms were excessive and should have been suspended. The central questions were the proper length of sentence and whether suspension was appropriate after the lengthy delay between offending and sentence.

1. The appeals against sentence were allowed. The court quashed the 18-month terms and substituted nine months’ imprisonment for each appellant. It also set aside the surcharge of £156 and substituted the correct surcharge of £140.

2. The offending was serious. It comprised repeated and fundamental breaches of the trust and care owed by trained care workers to a vulnerable person unable to protect himself. The custody threshold was therefore passed by a considerable margin. The court accepted that the evidence established some harm, although the extent of its short- or long-term effects was difficult to assess.

3. The sentencing judge was entitled to consider the child-cruelty guideline by analogy, but its use required caution. The maximum sentence for section 1(1) of the Children and Young Persons Act 1933 is ten years, whereas the maximum for section 20(1) of the Criminal Justice and Courts Act 2015 is five years. It did not follow that the guideline could simply be divided by two, or that multiple culpability features which would increase a child-cruelty starting point should have the same, or proportionately the same, effect for the present offence. The judge had not necessarily double-counted, but the analogy did not necessarily produce the right sentence.

4. Had sentence followed soon after the offending, 18 months before reduction would have sufficiently marked the seriousness of the two younger appellants’ conduct. Youth, previous good character, remorse and personal mitigation would have reduced that figure to about 12 months, and the guilty-plea reduction to about nine months. Parity produced the same result for the third appellant.

5. The lengthy delay, through no fault of the appellants, had allowed them to support remorse and good intentions with action. That shifted the finely balanced suspension question towards suspension. However, each appellant had already served five months in custody. The proper course was therefore to draw a line under the case by imposing the reduced immediate custodial terms rather than suspending them.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 808, allowed the sentence appeals, quashed the 18-month terms and substituted nine months’ imprisonment for each appellant.

• Crown Court at Gloucester: On 19 January 2022, the Recorder of Gloucester sentenced each appellant to 18 months’ imprisonment for an offence under section 20(1) of the Criminal Justice and Courts Act 2015.