R v Melanie Burmingham

Where a custodial term of less than two years permits suspension, the sentencing court must give first consideration to the seriousness of the offending. Exceptional seriousness may preclude a suspended sentence despite an offender’s age, ill health, lack of relevant convictions and low assessed risk of reoffending.

In assessing sentence for prolonged child cruelty, sustained violence, serious neglect, degradation, use of weapons and grave psychological harm may make the offending as serious as it can be within the applicable historical statutory maximum. Personal mitigation which pales beside that seriousness cannot justify suspension.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer as unduly lenient a sentence imposed in the Crown Court at Portsmouth on 7 March 2025.

The offender had pleaded guilty to child cruelty contrary to section 1(1) of the Children and Young Persons Act 1933. Over about 12 years, when her daughter was aged between four and 14, she inflicted prolonged physical cruelty, neglect and degradation which caused profound psychological and emotional harm.

The judge imposed 20 months’ imprisonment, suspended for two years, with a 20-day rehabilitation activity requirement. The central issue was whether suspension of that term was a justifiable exercise of discretion.

1. The court granted leave, held that the sentence was unduly lenient, quashed the suspended sentence and substituted 20 months’ immediate custody.

2. The judge had power to suspend because the term imposed was less than two years. That discretion nevertheless had to be exercised by giving first consideration to the seriousness of the offending. The court accepted the judge’s assessment that the offending was as serious as it could be. It involved repeated and sustained acts of cruelty over 12 years, serious neglect, gratuitous degradation, significant violence, weapons and deliberate disregard for the child’s welfare.

3. The historic maximum applicable to the offence under section 1(1) of the Children and Young Persons Act 1933 was two years’ imprisonment. That maximum constrained the sentence, although current sentencing guidance illustrated the exceptional gravity of the conduct. The resulting 20-month term was therefore not challenged; the error lay in suspending it.

4. The offender’s age, ill health, absence of relevant convictions, personal history and low risk of reoffending were acknowledged. They were, however, overwhelmed by the seriousness and duration of the abuse and its devastating effect on the victim. This was a case in which seriousness precluded a suspended sentence. The original sentence was accordingly not merely lenient but unduly lenient.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1988, the court granted leave, held the suspended sentence unduly lenient, quashed it and substituted 20 months’ immediate custody.
• Crown Court at Portsmouth: On 7 March 2025, His Honour Judge Bowes KC sentenced the offender to 20 months’ imprisonment suspended for two years, with a 20-day rehabilitation activity requirement, following a guilty plea to child cruelty.