R v Melanie Burmingham [2025] EWCA Crim 742

[2025] EWCA Crim 742Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 May 2025
Before
LORD JUSTICE STUART-SMITHMRS JUSTICE TIPPLESMRS JUSTICE STACEY
Between
REXCrownMELANIE BURMINGHAMDefendantREFERENCE BY THE ATTORNEY GENERAL UNDERS.36 OF THE CRIMINAL JUSTICE ACT 1988
REXMELANIE BURMINGHAM
Mr Peter Ratliff appeared for Solicitor GeneralMr Thomas Acworth appeared for Respondent Offender
Approved Judgment
[1]His Majesty's Solicitor General applies for leave to refer a sentence that she regards as unduly lenient. The sentence was imposed by His Honour Judge Bowes KC sitting in the Crown Court at Portsmouth on 7 March 2025. The offender had pleaded guilty to an offence of child cruelty, contrary to section 1(1) of the Children and Young Persons Act 1933, and was sentenced to 20 months' imprisonment suspended for 2 years with a 20-day rehabilitation activity requirement. We give leave.

The facts

[2]The facts are as recounted by the victim to the police on 19 November 2019 and as supported by the subsequent police investigation.[3]The offender was born on 20 April 1946. The victim, Caroline Eshghi, is the offender's daughter. She was born on 27 September 1967. The offence for which the offender fell to be sentenced spanned the period between 26 September 1971 and 28 September 1983, when the victim was aged between 4 and 14 and the offender was aged between 25 and 37. During this period the offender and the victim lived in multiple homes in different locations.[4]The victim lived with her mother until she was 15 at multiple locations in the UK and abroad. The victim's earliest memory was being in a basement flat in Bristol when she was aged 3 or 4. She suffered pain between her legs, which she thought might have been cystitis. She recalled waking up in pain, wandering around the flat crying or screaming for her mother, who had gone out partying and had locked the victim in the flat. After some hours, exhausted, the victim would take herself to bed. The offender would later tell the victim that she did this regularly. A neighbour recalled several occasions when the victim was left unattended in her cot, near a gas cooker, while the offender was out for an evening between 10 pm and 1 am. The offender would tell the neighbour that the victim was alright and would not wake up.[5]The victim's next memory was of a Barrett-style house which had a stairway with a solid wooden banister. She recalled being kicked like a football from the top to the bottom, where she hit her head on a radiator. On that occasion she was comforted. The comforting was not something that was to continue.[6]The victim recalled next living in a second floor flat beside a derelict building. The offender lived at that time with a man called Ryall who abused the offender: this would be followed by the offender beating the victim. The victim recalled being made to sit in a cold bath of her own urine for long periods. She was made to stand on a table with the backs of her legs beaten with a bristle brush. When she was in the bath the victim’s head would be held under water so that she would be fighting to get out of the bath. She believed that her mother wanted her to die.[7]The victim recalled living in a bedsit flat in Redland, Bristol when she was 7 or 8 years old. She would have to sleep on the floor next to the offender who would, from time to time and at any time of the night, lean over and punch her in the stomach or elsewhere on her body for no reason. From around this time, the victim would wet herself in terror because ‘she knew what was coming’. The offender would punch, kick and drag the complainant by her hair for ‘being disgusting’. The offender would beat the victim with a wire hanger. The stripes were visible across her face, and the victim recalls that the matter was reported to social services.[8]The offender recalls that when social services asked whether the offender had beaten her she would answer ‘no’ because the offender was present. As soon as social services had left, the beating would begin again, albeit away from her face. Separately the victim recalled being placed on a ‘child danger list’ when bruises on her back, inflicted by the offender beating her with a stick, were observed at a PE lesson. The victim considered that she had been hugely failed by social services.[9]When the victim was not in school the offender would order her from the house for the day in order that she could entertain boyfriends alone. The victim had no friends and would wander around on her own. She would shoplift and steal food from the school tuck shop because there was insufficient food at home. On other occasions the offender forced the victim to eat against her wishes, purportedly to ward off anorexia.[10]The victim describes her hygiene at the time as being lamentable. She would be sent to school in smelly clothes and poor footwear.[11]The victim recalls that when she was aged 8 or 9 they lived in a large flat in Kingsdown Parade in Bristol. She would be told to sweep the entirety of the carpet on her hands and knees whilst the offender stood over her, inspecting. If the offender found anything to fault, she would grab the victim’s hand and drag her around, causing carpet burns, before beating her. The victim was fearful, when working, that she might wet herself. Other misdeeds which led to a beating included failing to secure all the items she had been sent to shoplift. On one occasion she incorrectly put washing up liquid in a cat bowl and the offender put a bar of soap in her mouth. A friend of the offender’s was there and told the offender that she was ‘going too far’.[12]In around 1977 and 1978, when the victim was aged 10 and 11, she attended St. Katherine’s Primary School in Long Ashton. She recalls that at this time the offender began drinking heavily. During this period, she would be shut in an airing cupboard after having been beaten. She would wet herself and be beaten for that. This continued until the victim was around 15 years old. At around her time at St. Katherine’s the victim would be locked outside her home address in freezing temperatures. She would be sent, during the night, to get gin, whisky or cigarettes for the offender. The offender was very frequently inebriated and would urinate on the carpet. The victim would have to get up and clean up the mess. The victim describes herself as being the offender’s ‘personal slave’. The offender blamed the victim for not being born a boy, on the basis that the victim’s father would not have left the offender had the victim been male. The victim describes the escalation of violence increasing ten-fold during her time at St. Katherine’s. Violence was almost nightly. The offender, fuelled by alcohol, would ‘tear [the victim] to pieces’ then order her to clear everything up. The victim recalled that the offender would come upstairs in a rage, before dragging the victim downstairs where she would be punched and kicked. When the victim was caught shoplifting, she was beaten for some days thereafter.[13]The victim described the ‘beatings’ as involving punching, kicking, things being used on her body, her hair being pulled, and being shut in an airing cupboard. She recalled an incident when she was very young where she was kicked continually from one end of a flat to the other, to her stomach, legs and arms, following which she urinated and could see blood in her urine. She received no medical attention. The victim recalled being told to change a plug, and having a finger put in a socket so she received an electric shock. She was hit on the head with plates and made to cut up pig’s heads for dog food. She had a butter dish broken on and rubbed in her face, causing cuts. She was spat at in her face by the offender.[14]A witness from this period recalls that the victim was very rarely allowed to go out and play, save to go for a walk with her when the offender had a boyfriend at home. The witness recalls how the ‘terrified’ victim asked her not to knock on their door. She recalls how hungry the victim was, with no food in the fridge and no decent food to take to school. The victim resorted to shoplifting and foraging for apples. She recalls the poor state of the victim’s clothing and saw bruising to the victim’s arms and legs at swimming lessons. She saw cigarette burns on the victim’s body. She was aware that the victim would be out late at night.[15]The offender and victim then moved to a house in Midsomer Norton. On the victim’s 13th birthday her aunt and uncle visited, and it was a happy occasion, but when they left the offender ‘ripped [the victim] to pieces’, punching, kicking, and dragging her around the home by her hair. The offender would make the victim kneel and would beat her across the back, sometimes with her top off, with a wooden walking stick, as a punishment for purported infractions such as the dogs escaping or not eating their food. She was hit with a broom, splitting the back of her head and causing blood to soak on her only school shirt, and leaving a scar. The offender told the victim to clean herself up because she looked disgusting.[16]The offender and victim then moved to Avebury. Here the offender would attack the victim with a metal poker, hitting her around the arms and back when she could not get the fire going. She recalls being kicked in the crotch by the offender, and the assaults with the walking stick continuing. The victim suffered from depression and was frequently bruised. At around this time the victim made a friend who would collect her when the offender, inebriated, would kick her out in the middle of the night in her pyjamas. This respite, and spending time in the garage where her friend worked, allowed the victim to do schoolwork and revise, which she was not allowed to do at home. During this period the beatings decreased in frequency but remained serious.[17]Another witness recalls that at around this time, in 1981 or 1982, an occasion when the victim either misspelt a word or similar, and the Offender immediately slapped the victim around the face with great force, propelling her 5 or 6 feet across the room.[18]When the victim was 15 the offender kicked her out of their home in the middle of the night. The victim went to a friend's house and did not return to live with the offender.[19]The victim had little or no direct contact with the offender thereafter. Between 2016 and 2018 she sought therapy to address the trauma she had suffered. It appears that the victim's decision to report what had happened to the police was prompted by the treatment she received and the efforts the offender began to make to contact the victim's son Liam through Facebook through a third party.[20]There were various personal statements and supporting statements before the court below. A statement from a counsellor who treated the victim between April and July 2018 noted:
“I was … particularly struck by the subsequent impact of [the offending] on [the victim’s] life. It was clear that what had happened with [the offender] had affected [the victim] in subsequent personal relationships and other aspects of her life. The trauma from her childhood rendered her vulnerable to unhealthy attachments and toxic relationships with subsequent boyfriends…”
The victim told the counsellor that she had been diagnosed with dissociative identity disorder. The counsellor witnessed the symptoms of this, where the victim would display little or no emotion when relaying highly traumatic events.[21]In a victim personal statement, the victim set out in detail the devastating impact the abuse had had on her. The offender’s conduct had “destroyed not only my childhood but also the person I could have become in my adult life”. She described how she had “absolutely no concept of what it’s like to have a mother or a father. I have no understanding of what it’s like to be made a priority by another person, no concept of receiving the unconditional love of a parent.” She described how “All through those years as I survived day by day my constant fantasy was that I would be rescued, or that you would die…so that I would be taken out of the many flats, bedsits, houses of horrors, and could live like other children, and not in a constant state of terror.” The offender's abuse had impacted all aspects of her life. When the victim became a mother herself, she slipped very deeply into a severe depression. The victim set out the serious psychological, developmental and emotional harm the offending had caused.

The proceedings

[22]The offender was interviewed on 28 February 2020. She answered 'no comment' to questions asked and gave a prepared statement in which she denied any offending and asserted that the allegations were entirely untrue. The offender stated that she was shocked by the allegations and alleged that they were manufactured because the victim had sought to prevent the offender seeing the victim's son.[23]The offender was interviewed again on 14 May 2021 and continued to answer 'no comment' to questions asked.[24]Following the victim's account to the police, a detailed investigation, involving enquiries with multiple witnesses or potential witnesses in this jurisdiction and abroad and securing historic records, began. The case was submitted for charging in March 2023.[25]Further investigations were conducted and a decision to charge was made on 17 October 2023. On 6 December 2023 the offender was charged by way of postal requisition.[26]On 12 January 2024 the offender appeared before the magistrates' court and indicated a plea of not guilty. The real issues in the case were said to be “no unlawful assault/neglect”.[27]On 22 February 2024 the offender appeared before the Crown Court at Portsmouth for a plea and trial preparation hearing. She entered a plea of not guilty, and the trial was fixed for 29 October 2024.[28]On 29 October 2024 the case was listed for trial. The offender changed her plea to guilty. A basis of plea was served which stated:
“The plea entered by the accused does not encompass the facts underlying the 'Spanish doll' incident.”
Otherwise, the plea was on a full-facts basis. That basis of plea was agreed by the prosecution and the case was then adjourned for the preparation of pre-sentence reports.

The offender

[29]The offender is 76 years of age and was aged between 25 and 37 at the time of the offending. She had one previous conviction, for driving with excess alcohol on 22 July 2005, for which she was disqualified from driving for 19 months.[30]In mitigation it was submitted for the offender that she was a changed woman and no longer the person who had acted in the way described. It was said that she did not wish to gild the lily about her health but that she was far from being a picture of health, far from a spry 76-year-old. Having recently lost her dog she was lonely and isolated. She would never trouble the courts again and faced the prospect of losing everything if sentenced to an immediate custodial sentence.

The PSR

[31]The judge had the benefit of a pre-sentence report. The author noted that the offender concurred with the CPS version of events. However, she characterised her relationship with the victim as one which involved normal arguments and stated that she believed the victim was trying to “assassinate her character”. In the opinion of the author of the report, the offender did not accept responsibility for the offence, though she did admit to slapping the victim on two separate occasions. She denied, for example, leaving the victim in cold baths, locking her in a cupboard or inflicting cigarette burns. The offender denied having previously had any issues with alcohol.[32]The offender reported that she came from a dysfunctional family. The victim's father had left the offender to raise the victim on her own, with no financial or emotional support. She had spent a number of years in an abusive relationship with another male. She stated that she had suffered depression around the time of the offending, for which she had received medication. At the time the report was prepared there was no GP or mental health involvement.[33]The offender reported that she suffered from blood cellulitis, which caused her pain throughout her body, and arthritis, which caused her pain in her knee, hips and legs.[34]The offender was assessed as posing a low risk of reoffending and a medium risk of harm to the victim and the victim's son, and of medium risk of harm to children in general.[35]In respect of the offender's ability to cope in custody the author said:
“… [the offender] is a vulnerable adult who has limited experience of the criminal justice system and has never experienced prison before. [The offender] is an elderly woman with physical health conditions, her emotional wellbeing has been negatively affected from the ongoing court case and would be at risk of losing her accommodation if she was sent to prison.”
The author recorded that the offender was petrified of the prospect of prison. Her health was a factor to be taken into consideration. She would lose her council-owned property. The report suggested a community-based sentence. “…there is an absence of ongoing risk factors and/or criminogenic need that could contribute to [the offender] engaging in further offending or behaviours indicative of a risk of causing serious harm to others in the future…”[36]We mention here that we have received an update from probation. At the date of the update, which was 8 April 2025, the offender had attended the three appointments that had so far been offered to her.

The sentencing remarks

[37]It has always been common ground that the maximum penalty for the offence contrary to section 1(1) of the Children and Young Persons Act 1933 at the time of the offender's offending was 2 years' imprisonment. If the same offence were committed now, the statutory maximum would be 14 years.[38]The judge's sentencing remarks were concise and to the point. He referred to“the dreadful catalogue of cruelty and abuse” towards her daughter over a period of 12 years. He accepted that those “sustained acts of cruelty have had a profound impact on her daughter's life”. The offender had destroyed her daughter's childhood.[39]Having regard to current guidelines he correctly identified that this would be treated as a case involving high culpability “as a result of the prolonged and multiple incidents of serious cruelty, including serious neglect, your gratuitous degradation of [your daughter], your use of very significant force, your use of weapons to beat her and your deliberate disregard for her welfare.”[40]It would also be a case of category 1 harm because she had undoubtedly caused serious psychological and emotional harm.

The judge summarised the position by saying:

"Put simply, your case is as serious as it could be."
[41]If he had been sentencing under current legislation the starting point would be 9 years, but he was constrained by the maximum sentence at the time of offending being 2 years. He explained the sentence that he was about to pass as follows:
“ …the sentence I pass is as follows, the starting point in this case is one of 2 years’ imprisonment… I will reduce that by a small amount in relation to the fact you had no previous convictions, by one month, and then give you credit of approximately 10%. Overall, I have concluded the correct sentence here is one of 20 months’ imprisonment, to which anyone considering the case now would think frankly is much too low. I now have to consider whether that sentence ought to be suspended, and whilst on the one hand, many might feel you richly deserve to go to prison, even if it is for a short time, I have to have regard to your age, the fact you have no other relevant convictions, and your health. It is for those reasons I have concluded, following guidelines, that the sentence ought to be suspended for a period of two years. In addition, you will undertake 20, what are called rehabilitation activity requirement days.”

The Solicitor General's submissions

[42]The Solicitor General submits that the offending was aggravated by the youth of the victim at the start of the offending, the commission of the offence whilst under the influence of alcohol, and the steps taken to conceal the offending. A lack of relevant previous convictions is arguably a mitigating feature, although it is submitted that it bears little weight. The offender was relatively old and not in the best of health, but these were not substantial reasons for not imposing an immediate sentence of imprisonment. Though the judge had a discretion to suspend because the sentence was less than one of 2 years, it is submitted that the seriousness of the offending made the suspending of the sentence inappropriate. It is submitted that there is no strong personal mitigation and no evidence that immediate custody would result in a significant harmful impact on others. Prospects of rehabilitation, if appropriately considered at all, are relatively slim given the offender's lack of remorse. The sentence of 20 months should have been made immediate.

The offender's submissions

[43]For the offender, in very able submissions, Mr Acworth submits that some of the features identified as material by the Crown go to categorisation rather than separately being aggravating features of the offending. He also submits -- correctly -- that imposition guideline does not apply to this offending since it states that it does not apply to offenders being sentenced for offences committed prior to 4 April 2005.[44]Turning to the substantive mitigation, he submits that there are other features to be taken into account. Those features include: i) The respondent was in an abusive relationship for three years during the indictment period; ii) After the end of that relationship the respondent’s former partner stalked her and she had to move house; iii) The respondent's childhood was "negative" and she came from a dysfunctional family; and iv) the respondent's mother committed suicide while she was a child. He submits that although the offending was serious, there are a number of features that can support the decision to suspend. In summary they are: v) The respondent's risk of reconviction was very low; vi) The author of the PSR had proposed an intervention through a rehabilitation activity requirement; vii) The impact of the sentence of immediate custody would have been more significant for the respondent than upon an offender who did not share her particular vulnerabilities, and he relies upon the greater impact of imprisonment on female prisoners. Overall, while accepting that another judge may not have exercised their discretion to suspend the sentence, the judge's decision was, he submits, a proper exercise of his discretion and should be upheld.[45]In his submissions today he points, as he had done in his written Respondent's Notice, to the distress and anxiety of an offender who bears no responsibility for their sentence being reopened, and he urges on us the anxiety that the offender will have suffered because of and during the delay between her first being interviewed in February 2020 and being charged by of postal requisition at the end of 2023. It is not uncharitable to note that the period of delay may have been much shorter had she not asserted from the outset, right up to the morning of trial, that her daughter's allegations were fabricated.

Discussion and resolution

[46]We accept that the judge had a discretion to suspend the sentence he was imposing because it was a sentence of less than 2 years. What we cannot accept is that the judge's exercise of his discretion to suspend was justifiable. In deciding whether to exercise it, the first consideration had to be the seriousness of the offending. As to that, the judge's observation that this case is “as serious as can be” was fully justified and right. That is plain from any recitation of the facts. It is emphasised by the judge's measured reference to the current guideline and its indicative starting point of 9 years.[47]We acknowledge the points made by Mr Acworth on the offender's behalf, at the forefront of which are that the offender is relatively old and not in the best of health so that prison is likely to be a particularly unpleasant experience for her. However, these considerations pale into insignificance when set beside the dreadful catalogue of cruelty and abuse towards her daughter over a period of 12 years. If ever there was a case where the seriousness of the offending precluded the imposition of a suspended sentence, this was and is it. For those reasons, the sentence passed by the judge was not merely lenient but unduly lenient. We quash the sentence imposed by the judge and substitute a sentence of 20 months' immediate custody.