R v EMW

For sustained child cruelty involving several young victims, sentencing may properly use consecutive terms, but the aggregate must remain just and proportionate to the overall criminality. Harm may be assessed by reference to the overall course of conduct rather than by artificial distinctions between types of cruelty. Historic offending requires account of the applicable historic-case principles, the maximum sentence then available, the passage of time and subsequent offending. Appellate intervention is justified only where the resulting sentence is manifestly excessive. Age and early dementia may warrant modest mitigation, while current mental health may carry little weight where it does not bear on historic culpability and can be managed in custody.

The appellant was convicted in the Crown Court at Oxford of 13 counts of cruelty to a young person under 16, contrary to section 1(1) of the Children and Young Persons Act 1933, relating to conduct in 1974 and 1975. She was sentenced in the Crown Court at Lewes to a total of 10 years’ imprisonment, comprising consecutive sentences.

She appealed against sentence on grounds concerning culpability and harm categories, totality, mitigation based on good character, age, ill-health and delay, and alleged manifest excess. The central issues were whether consecutive sentences had been properly structured, whether the aggregate sentence was proportionate to the overall criminality, and whether the sentence was manifestly excessive.

1. Appeal and surcharge. The appeal against sentence was dismissed because the total sentence was not manifestly excessive. The surcharge order was quashed because, given the dates of the offences, no surcharge order should have been made.
2. Guideline assessment. The sentencing judge was entitled to assess harm in each case as category 1. It would have been artificial to distinguish between types of cruelty where the children had suffered from the overall criminal conduct. However, the offending against C4 did not involve sexual abuse or some of the additional cruelty inflicted on C1 and C2. It therefore fell within category C1, for which the current guideline gave a three-year starting point and a range of two to six years, rather than category B1.
3. Totality and consecutive sentences. Consecutive sentences are ordinarily appropriate for offences against different victims, and may also be appropriate for similar offending against the same victim where concurrent sentences would not reflect the overall criminality. That approach could be applied to sustained child cruelty. The aggregate had nevertheless to remain just and proportionate. A permissible method was to reduce each consecutive sentence proportionately by reference to the sentence that would have been imposed if the count had stood alone. The judge had adopted that approach, subject to the two most serious counts.
4. Historic offending and mitigation. The sentence had to be imposed in accordance with the principles for historic offending stated in R v H [2012] 1 WLR 1416 and R v Forbes [2017] 1 WLR 53. The individual sentences reflected the age of the offences, the former statutory maximum and the absence of further offending. A modest reduction was appropriate for advanced age and early dementia. Current mental health did not affect culpability for the historic offending and could be managed in prison. No weight was attached to previous good character because it had been lost early in the sustained offending.
5. Appellate review. The trial judge was best placed to assess the offending, its impact and the appellant’s culpability. The 10-year sentence was proportionate to the overall criminality, and there was no basis for interference.

• Court of Appeal (Criminal Division) — dismissed the appeal against sentence and quashed the surcharge order: [2023] EWCA Crim 1439.
• Crown Court at Lewes — sentenced the appellant to a total of 10 years’ imprisonment on 22 May 2023.
• Crown Court at Oxford — convicted the appellant of 13 counts of cruelty to a young person under 16 on 28 February 2022.