R v BCN [2025] EWCA Crim 723

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 723Venue Royal Courts of Justice, Strand, LondonWC2A 2LLDate Thursday 22 May 2025
Before
LORD JUSTICE STUART-SMITHMRS JUSTICE YIP DBEMRS JUSTICE TIPPLES DBE
Between
REXCrownv
Between
BCN(S.45 Youth Justice and Criminal Evidence Act 1999 applies)__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR I COOK appeared for Appellant_________APPROVED JUDGMENT
[1]The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are engaged in this case because the victim is a child. An order was made in the Crown Court in the following terms:
"No matter relating to the youth may be published that would identify them, including their name, address, any educational establishment or any workplace they attend, and any picture of them. This order lasts until the youth reaches the age of 18."
[2]In light of the family relationship between the appellant and the victim, the name of the appellant must also be anonymised in any publication of this judgment or any report of these proceedings.[3]On 2 April 2024, in the Crown Court at Newcastle upon Tyne, the appellant (who was then aged 36) pleaded guilty to an offence of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. The offence was committed on 23 June 2019. The victim was the appellant's 7-month-old baby daughter.[4]On 21 February 2025 (when the appellant was aged 37) the appellant was sentenced for that offence to 27 months' imprisonment. He now appeals against that sentence with the leave of the single judge.[5]On the evening of the offence the appellant's baby was taken to hospital, where she was found to have a spiral fracture to the right femur. She also had some bruising to her face. A fullskeletal survey was undertaken and revealed a healing injury to the left humerus.[6]The appellant's account at hospital was that his daughter's leg had become caught in the bars of her cot as she was being moved.[7]The police were notified and attended and arrested both parents.[8]Investigation of the appellant's mobile phone showed that he had searched Google for issues around a baby's leg being bent or limp that morning, some 12 hours before medical advice was sought. Around the time that the baby was taken to hospital, the appellant made a search,"How do babies break their femur?"[9]When interviewed the appellant said that the injury happened when he lifted the baby from her playpen and her leg became stiff. That account was a lie.[10]The appellant changed his account as expert evidence was obtained in the course of Family Court proceedings. Whilst those proceedings were ongoing, he admitted to the child's mother that he had caused the leg injury. At that time it was being suggested that both parents were lying and that it would not be safe for either to have the care of the child. Following the appellant's admission, the child was gradually returned to her mother's care, that process starting around 11 months after the incident.[11]The appellant was reinterviewed in June 2022. He gave an account which he was to maintain in the form of a basis of plea. After a review, the basis was accepted by the Crown and was therefore the basis upon which the appellant was sentenced. The appellant said that he and his partner were struggling with the demands of caring for a young baby. He also had caring responsibilities for his mother, who had dementia, and was responsible for most of his daughter's care as he suspected that the child's mother was suffering from postnatal depression. That morning he was feeling particularly under pressure and sleep deprived. He had sought help from his partner, but she had not helped. He went to pick up his daughter after hearing her distressed in her playpen. She appeared to be lying at a strange angle. The appellant said he panicked and grabbed her by the knee area of the right leg, turned her to avoid scraping her face, and pulled her towards him when he heard a crack. The appellant accepted that his actions were excessive and amounted to an assault. He said the baby was initially distressed but then settled and went to sleep.[12]The appellant had no previous convictions and had committed no further offences since the date of this offence. He had entered into a new relationship. His new partner provided a character reference, albeit the impact of that was somewhat undermined by her description of what happened as an "accident". The appellant accepts that it was not an accident. He has admitted that what he did amounted to a criminal assault.[13]More significantly, the appellant had established a relationship with his daughter, who by the time of the sentencing was aged 6. He had had some irregular supervised contact with the child up until late 2022, when he applied to the Family Court for a Child Arrangement Order. The Family Court decided that he could have unsupervised contact. By the time he was sentenced, he was picking her up from school every Friday and having her on alternate Sundays. He was hoping to move towards overnight staying contact. He had also sought treatment for mental health issues and had undertaken therapy, as evidenced in documents produced to the judge which we have also seen.[14]The judge acknowledged that 2019 was a very difficult time for the appellant and accepted that real progress had been made since, including in the relationship between the appellant and his daughter.[15]Applying the relevant sentencing guideline, the judge found that the case fell into category A2. Culpability was category A because the victim was obviously vulnerable by virtue of her age. Harm was placed in category 2 because the injury, involving a broken bone, was a grave one. That gave a starting point of 3 years' imprisonment with a range of 2 to 4 years.

The judge identified the following aggravating factors:

[16]that the appellant was in a position of trust; there was a substantial delay in reporting the injury, which will have caused the baby considerable distress; the appellant was not frank with the medical professionals.[17]The mitigating factors were: good character; the substantial delay in the case, not all of which could be attributed to the appellant. He had entered his guilty plea almost 11 months before he was sentenced. The judge said he also took into account all of the points of personal mitigation to which he had referred earlier.[18]Weighing the aggravating and mitigating factors, the judge said that the aggravating factors meant that the sentence after trial would have been 3 years 4 months' imprisonment, but that the mitigating factors reduced the sentence to 3 years. He gave the appellant 25 percent credit for his guilty plea to produce the sentence of 27 months' imprisonment. The judge said:
"That is a sentence of a duration that cannot be suspended and therefore it will be served immediately."
[19]By his grounds of appeal and through Mr Cook's oral submissions, the appellant realistically acknowledges that no complaint can be made in relation to the judge's categorisation of the offence within the sentencing guidelines or his identification of the aggravating factors. However, it is argued that the judge did not make a sufficient reduction for the mitigating factors, in particular the very significant work that the defendant had performed to reduce the risk of further offending and to build a relationship with his daughter. Mr Cook highlighted that he had paid for additional therapeutic work beyond that directed by the Family Court.[20]It was contended that the substantial delay in the case, coupled with the fact that the appellant had not reoffended, indicates that he had taken very positive steps towards rehabilitation. Mr Cook further informs us that he has now completed additional work whilst in prison and submits that overall this appellant has made very considerable progress towards rehabilitation.[21]It is argued on the appellant's behalf that if the judge had given sufficient weight to the mitigating features, he would have had arrived at a sentence at a level that could have been suspended to allow the appellant to continue the excellent progress he had made both with regard to his own wellbeing and in his relationship with his daughter. It is contended that the realistic prospect of rehabilitation and the harmful effect of immediate custody on the victim in the case, who now enjoyed a close father-daughter relationship with the appellant, pointed towards suspension.[22]The passage of time between the commission of the offence and the date of sentence meant that this was not a particularly easy sentencing exercise. It appears that, to some extent at least, the appellant continued to minimise the seriousness of what he did to his daughter in 2019. He should be left in no doubt that this was a serious offence. It could only be met with a custodial sentence.[23]It is rightly accepted that the judge correctly categorised the offence within the relevant sentencing guideline. Although right to treat a spiral femur fracture in such a young child as a grave injury and therefore a category 2 harm case, the child made an excellent recovery with no lasting effects. It might be argued that as such the judge could have moved downwards within the category 2 bracket, before putting the aggravating and mitigating factors into the balance. The judge correctly identified the aggravating features. The breach of trust in this case was significant. The appellant was the child's father. He believed that her mother was experiencing postnatal depression which made it difficult for her to care for the baby. As such, the baby was highly dependent on her father. The delay in seeking treatment and the lies told to medical staff were also significant. The appellant's lack of frankness about his role in the child's injury led to the mother being arrested and delayed the child being returned to her mother's care.[24]Set against that, the appellant was otherwise a man of good character. The offence had occurred at a difficult time in his life when he was under strain and receiving limited support. The picture was very different by the time he was sentenced. He had taken real steps to address his own difficulties and to rehabilitate himself to the extent that the Family Court was satisfied that it was appropriate for him to have regular unsupervised contact with his daughter.[25]At first sight we did not think that it was unreasonable to regard the aggravating factors and the appellant's mitigation as effectively cancelling each other out. This led the judge to decide that the appropriate sentence after trial was one of 3 years' imprisonment. However, the effect of the appellant's rehabilitation over the years since the offence was significant, not only for him but also for his daughter (the victim of the offence). The reports before the judge identified that the appellant had established a genuine relationship with the girl and was continuing to build on that. While reiterating that this was a difficult sentencing exercise, we consider that it was necessary for the judge to stand back and give greater weight to that factor than he appears to have done. In the final balance the judge might also have made some downwards adjustment to reflect the fact that while the injury was grave, it was not as serious as some that fall into the category 2 bracket.[26]Taking those two things together, we consider that the judge could and should have arrived at an appropriate sentence after trial of 32 months' imprisonment. After applying 25 percent credit for plea, that would have produced a sentence of 2 years' imprisonment, opening up the possibility of the sentence being suspended.[27]The significance of that relatively modest reduction from the sentence the judge identified after trial, both for the appellant and for his daughter was such that it called for very careful reflection. We wish to acknowledge that we have perhaps had greater opportunity for such reflection in the context of this appeal than the judge would have had. Nevertheless we have come to the conclusion that the judge did err in giving insufficient weight to the appellant's rehabilitation and to the impact that a sentence of imprisonment would have on his daughter and that this led to a sentence that was manifestly excessive in all the circumstances.[28]On the basis that a sentence of 2 years' imprisonment was appropriate, the question of suspension of the sentence falls for consideration, having regard to the guideline on the imposition of community and custodial sentences. We consider that the sentence should have been suspended because of the realistic prospect of rehabilitation, strong personal mitigation and, most significantly, the impact of immediate imprisonment on the appellant's daughter (the victim of the offence). Had the judge passed a suspended sentence, a punitive element would undoubtedly have been required to bring home to the appellant the seriousness of the offence. The pre-sentence report recommended an unpaid work requirement. We are conscious that the appellant has now served 3 months in prison. He can have been left in no doubt as to the significance of what he did in 2019 and we do not now think that it is necessary to include a requirement for unpaid work.[29]We do, though, think that the recommendation for a rehabilitation activity requirement should be followed. The programmes likely to form part of that requirement will build upon the appellant's rehabilitation to date and allow him further opportunity to reflect on his behaviour. That will be beneficial particularly as even now he still seems to minimise his conduct and to look to blame others to some extent.[30]We accordingly allow the appeal and quash the sentence of 27 months' immediate imprisonment. We will substitute a sentence of 2 years' imprisonment, suspended for 12 months, with a rehabilitation activity requirement of 30 days. Provided the appellant complies with the requirements of the order and commits no further offences within the period of suspension he will be able to put this episode behind him. Should he commit any further offence, he must be aware he may be required to serve the suspended period of imprisonment additional to any sentence that may be imposed for the new offence. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk