Attorney General's Reference No. 125 of 2010 [2011] EWCA Crim 640

[2011] EWCA Crim 640Case No 2010/06844/A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 2 March 2011
Between
R E G I N ACrown
The Strand
London WC2
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)
MR JUSTICE HENRIQUES
and
MR JUSTICE DAVIS
_______________
ATTORNEY GENERAL'S REFERENCE No. 125 of 2010
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
_______________
- v -
Between
GRAEME DRAPER__________________Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4ATelephone No: 020 404 1400; Fax No: 020 7404 1424(Official Shorthand Writers to the Court)__________________Mr E Brown QC appeared for Attorney GeneralMr G M Mercer QC and Miss J Martin appeared for Offender__________________J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an application by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient. We grant leave.[2]The offender is Graeme Draper. He is aged 26, having been born on 26 September 1984. He is a man of good character.[3]On 29 November 2010, in the Crown Court at Truro, before Royce J, the offender pleaded guilty to manslaughter. He was sentenced to three and a half years' imprisonment.[4]The offender had originally been charged with murder. He pleaded not guilty on 7 April 2010. A plea of guilty to manslaughter had been canvassed with the prosecution some months before the plea was eventually accepted. It was accepted after the prosecution had examined all the evidence and taken the assistance of expert witnesses, and the defence was informed that a plea of guilty to manslaughter would be acceptable.[5]The offender was the father of a baby boy who was four months old at the time of the assault which caused his death. The assault occurred on 1 November 2009 when the offender was looking after his son. He was in a bad mood. In a loss of temper he forcefully shook and/or threw the baby (the precise mechanics were not clear). The result was serious brain damage. The baby did not regain consciousness. The life-support mechanisms were withdrawn just over three weeks later.[6]The incident on 1 November was not the first such incident. There had been an incident of a different kind (the precise details of which are unclear) about a week before when the baby had suffered considerable pain and potential injury in circumstances which would at the very least have constituted a warning to the offender of his son's fragility.[7]The facts in more detail are these. Kodi Martin was born in July 2009. His parents were Tammy Martin and the offender, both 25 years old. The baby lived with his mother and his older brother, Lewis, who was six years old and also a child of the offender, in a first-floor flat at an address in Plymouth.[8]The offender lived with his parents in the same road as Tammy Martin and his children. Their relationship had gone on (and sometimes off) for eight to nine years, although as at November 2009 it was certainly on. He used to visit her address to see her and his children, and from time to time he would spend the night at her address. At weekends he would look after the children while she went to work at a social club. On occasions her sister would also babysit.[9]When he was later to discuss his relationship with his children, the offender suggested that he had a good relationship with Lewis (the older child) but that he had not bonded with the newborn baby.[10]On 25 October 2009, Tammy Martin left the children in the offender's care while she went off to work. The precise details of what happened are unclear, but the offender was later to explain that the baby had been in the baby-bouncer with his older brother rocking him, when the baby flopped forward, jerked himself back and had cried in a way which was different to his usual crying. The offender said that the baby was obviously in so much pain that it made him (the offender) cry. In the course of this incident the baby had also stopped breathing.[11]In a later interview the offender said that he had walked into the room and taken the baby out of the baby-bouncer. He baby had gone "all stiff", his eyes had flickered and rolled "as if he wasn't there". The offender said that he had cuddled the baby for five minutes and he seemed to recover back to normality, although others who saw him later on the same day described the baby as being a strange colour and in pain.[12]The end result was that the baby was taken to a doctor, examined and given the all clear.[13]The medical evidence as to whether any injury was sustained on 25 October was inconclusive. Post-mortem and later neuro-investigation identified possible bleeding within the brain arising at an earlier date than 1 November 2009, but the significance of this incident is plain. We have given a pre-echo of its importance. The offender had recent direct personal experience of how fragile a baby of this age could be and how much care there had to be with rough and sharp movements of a baby in a baby-bouncer.[14]On the night of 31 October/1 November 2009 the offender stayed at Tammy Martin's flat. She was due to go to work, but the offender had an interest of his own and so her sister agreed to look after the two children. She took them to her flat and then back to meet their mother. At this stage there was nothing wrong with the baby.[15]The offender arrived at Tammy Martin's home. It was raining. He fell asleep. She arrived back with the children between 2.15 and 2.30pm. Shortly before 3pm she left the flat to go to a nearby shop. According to a till receipt, which was directly linked to her purchases, that occurred at 3pm. It was while she was out of the flat for that short period that the baby suffered the fatal injuries.[16]At 3.18pm the offender called 999. The emergency services were despatched.[17]The first paramedic arrived at 3.24pm. He saw the baby on the living room floor and the offender performing chest compressions on him. The mother was also in the room. The baby was pale and was not breathing. The paramedic carried the baby down to an ambulance which arrived three minutes later, at 3.27pm. In the ambulance a faint pulse was detected, but the baby was still not breathing. A bag and mask resuscitator were used. The ambulance went straight to hospital, where it arrived at 3.38pm. A medical examination revealed that the baby had sustained an extensive, life-threatening subdural haemorrhage. Attempts were made to reduce cranial pressure. The baby was flown to a specialist hospital. Operations were carried out by neurosurgeons. Everyone made every possible effort to enable the baby recover, but, sadly, there were no signs of recovery. After three weeks, the baby never having recovered consciousness, the doctors concluded that there was no prospect of recovery. The life-support system was withdrawn on 24 November.[18]Both before and after the baby's death a number of different medical tests and examinations were performed. Their significance and the conclusions were the subject of a report from Dr Carey, a pathologist with considerable experience in such cases. The conclusions, taken briefly, are: first, the death was caused by head injury; second, there was no evidence of any external injury to the skull or the scalp, and indeed no other external injury on the baby's body, save those connected with the medical interventions to try to save his life; third, the extent and pattern of the subdural haemorrhages within the brain, combined with the retinal haemorrhages that were found and the hypoxic-ischaemic brain damage (loss of effective brain function), often referred to as the "Triad" of injuries, were consistent with non-accidental trauma of the shaking or shaking with impact type which causes the rapid acceleration and deceleration of the brain within the bone structure of the skull. That conclusion was lent support by the fact that the baby collapsed immediately and was unable to breath. It indicated that "angular and rotational forces" had been applied to the brain stem, consistent with shaking, or shaking with an impact.[19]It was the Crown's case (not contested by the defence) that the offender was already in a bad mood when his children returned to the flat on that afternoon, and that he was surly and unco-operative with Tammy Martin and the children when they arrived. When she left to go and do her shopping, the baby did something while in the baby-bouncer (probably something minor like crying), which caused the offender to react in temper. He picked up the baby and inflicted the brain injury which was subsequently discovered by significantly shaking and/or throwing him. The Crown's case was that it was not behaviour in which the offender had intended to cause really serious harm to his child, let alone to kill him, but that the act that was carried out, in whatever form it was carried out, was intended to and inevitably would cause some harm, and was especially reckless given what had happened, to the offender's knowledge, with the baby during the incident the previous week.[20]The offender gave a number of explanations for what had happened to the medical staff who treated the baby and who, as he appreciated because they told him, needed very much to know precisely what had happened. The offender also gave differing accounts to police officers in interviews when he was under caution while the baby was still alive.[21]In summary, between 5pm and 6pm on the day in question the offender spoke to the admitting consultant paediatrician who was looking after the child, saying that the baby had started whingeing, so he had slid him out of his bouncer by dragging him upwards without undoing the straps. He held the baby against his chest and felt that he was stiff. He noticed that he was very pale, floppy, staring, not responding, but gasping for breath.[22]In his first interview under caution the offender gave three versions of these events: first, that the baby was in the baby-bouncer and started to whinge, so he took him out, and the baby was white, unresponsive and had flickering eyes; secondly, that he had taken the baby out of the baby-bouncer twice and on the second occasion, as he did so, the baby's head had bent right backwards; and thirdly, later, that he had taken the baby out of the baby-bouncer twice, on the first occasion the baby had wriggled, he had dropped him and he had landed in the baby-bouncer from a height of three and a half feet, and he had taken the baby out of the bouncer again, which was when his head was bent backwards.[23]At the end of the interviews the offender was told by the officers that the injuries were not consistent with what he was saying. His response was:
"Isn't it your job now to go and find out what has happened?"
[24]In a second interview a further version was provided. Initially, the offender maintained that he had dropped the baby. Then he said, "It was one of them mad couple of minutes", that he had "lost [his] cool" and had thrown the baby down onto the baby-bouncer before picking him up again, which is when his head had gone right back.[25]All these explanations were considered by the pathologist. It was concluded that the forcible throwing down onto the baby-bouncer, followed by forcible picking up, could simulate the effects of the shaking impact and therefore could account for the baby's injuries. But in reality there is little difference between this last account given by the offender and the way in which the pathologist had suggested the mechanism of the injury was likely to have unfolded. In any event, the pathologist added that the force of being thrown down onto the baby-bouncer would have needed to have been substantially more than just simply a fall in accordance with the influence of gravity.[26]In his sentencing remarks the judge identified the essential features of the case. Of the earlier incident on 25 October he said:
"It is of relevance because you must have known how easily he could be caused pain and could be caused to get in that condition [which we have described]."
The judge referred to the fact that the offender had failed to give a single account of what had happened to those looking after the baby; that he had given different accounts to them, including at least one explanation that was clearly false. That was significant because at the time the baby was alive and it might have been possible, had those responsible for the baby's care been given full details of what had actually happened, perhaps to have treated the baby differently (although in reality there is no suggestion that any treatment could have successfully treated the baby for the injuries he had sustained); but at least that would have indicated a willingness on the part of the offender to do everything he possibly could to see that the baby survived.

The judge then noted the factors of mitigation:

[27]the offender was a man of good character, who was well spoken of; the incident was out of character; the fact that he had not bonded as well with the baby as he had with his older son; and the fact that the offender's remorse was genuine and that he would carry the very heavy burden of knowing for the rest of his life that he had killed his own child.[28]The judge referred to some earlier sentencing decisions of this court, including Yates, Fletcher, Owen and, more significantly in the present context, Appleby.[29]Mr Brown QC, on behalf of the Attorney General, submits that the sentence imposed by the judge after he had given attention to all the features, both aggravating and mitigating, was in the result unduly lenient.[30]On behalf of the offender it is accepted by Mr Mercer QC that the sentence was lenient but he contended that it is not one with which the court should interfere.[31]It is important to digress and to consider the issue of the judge's consideration of R v Appleby [2010] 2 Cr App R(S) 46, [2009] EWCA Crim 2693. At the time when he imposed sentence, Royce J was well aware of the decision in Appleby, not merely because he referred to it in his sentencing remarks, but because he had been a member of the constitution of this court which decided Appleby. That case confirmed to sentencing judges an approach to sentencing in cases of manslaughter, which had already been suggested in the earlier decision of this court in R v Wood [2010] 1 Cr App R(S) 2; [2009] EWCA Crim 651.[32]The joint effect of those two decisions was examined and summarised in R v Burridge [2010] EWCA Crim 2847. Burridge was handed down a few days after sentence was imposed in this case following an appeal against a conviction for murder in which the trial judge was the same judge, Royce J. Burridge summarised the effect of the decisions in Wood and Appleby at paragraph 137, where, in giving the judgment of a five judge constitution in Wood (a case of manslaughter by reason of diminished responsibility), the judgment reads:
"We derive some further, indirect support to our approach from the stark reality that the legislature has concluded, dealing with it generally, that the punitive element in sentences for murder should be increased. This coincides with increased levels of sentence for offences resulting in death, such as causing death by dangerous driving and causing death by careless driving. Parliament's intention seems clear: crimes which result in death should be treated more seriously and dealt with more severely than before. Our conclusion is not governed by but is consistent with this approach."
[33]In Appleby another five judge constitution considered the appropriate level of sentences for manslaughter committed in the context of incidents of public violence. After examining the various statutory provisions, the judgment includes these passages:
"3. Taken together these three cases provide the court with an opportunity to reconsider the approach to sentencing in cases of manslaughter when, notwithstanding that the defendant intended neither to kill nor to cause the deceased grievous bodily harm, he is convicted of manslaughter on the basis that the death was consequent on an act of unlawful violence. They are, of course, always tragic in their consequences, but they do not constitute murder, and they cannot be sentenced as if they were. If the defendant is convicted of manslaughter the consequences must be treated as if they were unintentional and unintended. .... .... 22. .... crimes which result in death should be treated more seriously, not so as to equate the sentencing in unlawful act manslaughter with the sentence levels suggested in Schedule 21 to the 2003 Act, but so as to ensure that the increased focus on the fact that a victim has died in consequence of an unlawful act of violence, even where the conviction is for manslaughter, should, in accordance with the legislative intention, be given greater weight." "139. .... In our judgment these words apply equally to unlawful act manslaughter of babies and children as they do to disorder in the street."
We agree.[34]In the context of the reference to Appleby, we understand from counsel that Royce J suggested that Appleby was a very different case to the present. In the context of the facts, that is right. Appleby was concerned with manslaughter in the context of violence in the streets -- in other words, public disorder. This is a case of manslaughter following some violence in the privacy of the home. The victim was a baby. The victims in Appleby and the other group of cases were adults going about their business in the streets. There are huge factual differences; but the approach suggested in Wood and Appleby, and summarised in Burridge, is common to all cases of manslaughter, however they may arise and whatever their factual circumstances. To that extent, therefore, we disagree with Royce J's view that Appleby did not have an application to a case of this kind: manslaughter of a child at home. The earlier decisions which he considered have been deprived of any significant continuing weight. Therefore we endorse the analysis of Wood and Appleby in Burridge. Having done so, we remind ourselves that care must be taken not to treat the sentence imposed by the court in Burridge, after the conviction for murder was reduced to manslaughter, as if it were a guideline decision. It is, of course, entitled to respect as a fact-specific sentencing decision within its own individual features which gives an indication of how the principle in Wood and Appleby may bear on cases of the manslaughter of a child in his or her home.[35]To underline that we are not treating Burridge as a guideline authority, we note some of the crucial factual differences between that case and the facts which we are considering here. In Burridge the court made it plain that the case had to be approached as if Burridge's intention at the time when he was violent in circumstances which resulted in the child's death fell just short of what would be the necessary intent for murder. That is not this case. Second, there had been earlier, proved violent incidents which resulted in more than one fracture of the child, which would have involved the use of considerable force. Apart from the incident on 25 October, the child in this case was undamaged; there was no external or internal sign of injury, other than the injuries resulting from the incident which we have described. Third, in Burridge the appellant had been warned to seek help in order to learn how to control his ill-temper. Fourth, he was dishonest with the authorities about his care for the baby and he told lies. Fifth, Burridge proceeded as a trial.[36]Four of the considerations relating to the aggravating and mitigating features in Burridge did not apply here. For the reasons which were entirely correct, it was conceded by the Crown that the offender in this case was entitled to a full discount for his guilty plea; that such a discount was appropriate in the circumstances of this case. That is a conclusion with which the judge agreed and we, too, agree.[37]Nevertheless, returning to this case, there were features of aggravation. We must emphasise that we are not dealing here with a parent driven to the end of his or her tether in the many myriads of circumstances which can arise, particularly when parents are young. A loss of temper with children is something about which every parent who is honest with himself (or herself) will have a recollection. This was not an "end of tether" situation. The offender was in a bad mood and irritated. He had not been driven to the end of his tether by either of his children or by their mother. He had received a clear warning about the potential dangers to which any sort of violent behaviour would expose the baby. The incident seven days earlier had made it clear to him; he knew exactly what the dangers of such violence might be. Finally, he gave repeated false accounts about what had happened.[38]The judge had all these features well in mind, as he did the matters of mitigation. The offender, we repeat, will have to live with the fact (and the consequences in relation to his relationship with his older son) that he has killed his child.[39]In the context of all these matters, including a misdirection by the judge about the way in which the sentencing decision should be approached, we have reached the conclusion that the sentence here was unduly lenient. Having reflected carefully on all the issues, and having taken time to do so, we have come to the conclusion that we must interfere with it and that we must impose an increased sentence on the offender.[40]In all the circumstances we shall increase the sentence imposed on him to one of five years' imprisonment.

Cited in 1 later judgment