No: 200703174 A2 
Neutral Citation Number: [2007] EWCA Crim 1852
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Friday, 13th July 2007

B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE MCCOMBE 
 
MR JUSTICE OPENSHAW 
 
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R E G I N A 

v 

RP
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Mr S Butterfield appeared on behalf of the Appellant
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J U D G M E N T 
1.	MR JUSTICE OPENSHAW:  On 21st April 2006, at the Crown Court at Swindon, RP pleaded guilty to six counts of cruelty by neglect to the six children, all of whom are under 16 years, for whom he was responsible, these offences being contrary to section 1(1) of the Children and Young Persons Act 1933.  On 30th May 2007, he was sentenced by HHJ Griffiths on each count to seven months' imprisonment concurrent.  He now appeals against sentence by leave of the Single Judge.  
2.	His wife, KP, was at the same time sentenced to a total of five and‑a‑half years for a series of offences committed towards her children, the most serious being wounding with intent their two and‑a‑half year old son R, whom she had slashed with a shard of broken glass.  The appellant himself was at work at the time and played no part whatsoever in relation to that offence.  She also was convicted of cruelty towards the other children.  
3.	KP had three children with her first husband: T (at the time of the trial aged 12), C (aged 10) and K (aged 7).  Subsequently she divorced and in 2002 she married the appellant.  They had three children; K (born in 2001), B (born in June 2003) and R (junior), the victim of the assault by KP, who was born on 7th April 2002.  These are the six children who are the subjects of counts 1 to 6.  At the time of the offences, the appellant was employed and was out of the house from quarter past six in the morning until 5 o'clock in the evening on each week day.  The three oldest children went to primary school and Katie went to pre‑school most afternoons.  
4.	On 22nd September 2004, KP took the youngest child, R, then aged two and‑a‑half, to a health centre with severe scalding to both his hands.  This appeared to be a non‑accidental injury but it happened again when the appellant was out of the house at work and he had nothing whatsoever to do with the infliction of this injury.  As a result of this incident the family home was visited by a police officer.  He reported that the children's rooms were not at all satisfactory.  The boys' bedroom consisted of just a bunk bed with a metal frame, but no mattress.  The girls' room had just a bunk bed and another bed but with no bedding, no toys and a complete lack of homely comforts or indeed anything to provide interest or stimulation.  There was no clothing in the cupboard in the girls' room.  There was virtually no food in the kitchen and little in the refrigerator.  
5.	A couple of months later, on 3rd November 2004, occurred an incident when KP slashed R very badly.  She called an ambulance.  That led to her prosecution for wounding with intent.  That offence was committed, as we have already said, whilst the appellant was out of the house.  When the police returned, it was in the same state as it had been a couple of months before.  
6.	The local authority were asked to examine the school records for the children.  They all had many unexplained absences from school.  They turned up unwashed and in dirty clothes, without the right kit for swimming or for PE.  They had very poor dental hygiene; each required a long course of remedial dentistry.  Neither parent had taken any interest in their school work.  Homework was never done.  Letters from school went unanswered.  
7.	All the children were well behind in their development.  Terence did not play with age appropriate toys and tended to play games associated with much younger children.  He was educationally behind and needed extra support at school.  He had to have a course of dental surgery, as did the others.  K has had to have two operations to correct a squint.  K needed extra support at school.  She had an obsession with food when first she was taken into care and would continually eat, which was said to be indicative of a lack of proper nutrition when she had been in the care of her parents, although there was no objective evidence of malnutrition.  Ben was behind with his speech and could not communicate properly.  He suffered regularly from night frights and was unable to share a room with any of his brothers or sisters.  
8.	When interviewed, the appellant was asked whether he accepted that he had neglected the children.  He replied: 
"Yes I do to an extent, in a short period of time I went through a bad patch.  Things were getting left.  We weren't doing bits and pieces in the house which we should have been doing, but you know I was getting off by KP, she started moaning, she was getting upset, she started crying when I used to come home from work. Some days she'll be just there in a heap, curled up crying, and I'd have to waste time when we could have been doing some housework or doing something else, trying to comfort her and back her up.  KP was like a crumbling wreck."  
It was obviously true that KP did have serious mental health problems which were quite beyond this appellant to manage or control.  
9.	The three younger children were moved to temporary foster carers and then moved to further foster carers and then to a long term foster placement.  The three older children were moved to a foster placement in January 2005.  All had ongoing problems as a result of the neglect.  
10.	The defendant accepts that he is guilty of neglect on counts 1 to 6 on the basis that, for a period between ‑‑ but only between ‑‑ August and November 2004, he failed to provide sufficient care for the children.  During this period his relationship with KP had deteriorated.  The marriage was to all intents and purposes over.  He worked excessive hours in order to provide for his family.  He became exhausted and stressed, as he put it, and in doing so failed sufficiently to play his part in the day‑to‑day care of the children.  It was no doubt also as a part of his blocking out what was happening at home.  
11.	The appellant accepted the following specific facts: that he failed to ensure that the children were supplied with sufficient bedding; that he failed to ensure that the children's hygiene was acceptable; that he failed to provide sufficient toys and means of mental stimulation; and that he failed to provide sufficient help for his wife to care for the children when she was suffering from mental health problems.  
12.	There was a good deal of personal mitigation.  The appellant is aged 40.  He has no previous convictions.  The pre‑sentence report makes clear that he was deeply remorseful.  He regrets that he and his parents could no longer be permitted contact with the children.  He has now divorced his wife.  He had a longstanding history of depressive illness, in 2003, first of all, which he attributed to not coping with family pressures and financial difficulties.  In 2005, he was again diagnosed with depression as a result of which he was unable to work for about four and‑a‑half months.  This depression, he said, was due to the harm that he caused his children through neglect.  
13.	He had a good employment record.  He had worked for the same employer since 1989.  They hold him in high regard and have been supportive.  They provided him with help during his depression and arranged counselling for him.  It is highly likely that if he went to prison he would lose his job which he has held for nearly 20 years.  He has now been rehoused.  If he went to prison, it was likely that he would lose his house as well.  He was able to provide a number of positive personal references.  
14.	These were all factors which, as the judge recognised, reduced the risk of reoffending and the risk of harm to the children.  
15.	The judge had regard to the guidance for sentencing in these cases given in the case of R v Durkin [1989] 11 Cr.App.R(S) 313.  He reminded himself that it was necessary to punish, to provide some sort of expiation of these offences, to satisfy the public conscience and to deter others by making it clear that condign punishment would result.  He observed that the appellant must have known the state of the house, the state of the children's bedroom and that the children were suffering from what he called a general state of obvious neglect.  The judge inferred that the appellant did not care or did not care enough.  He acknowledged he was working hard but he said that did not absolve him of the shared responsibility of the very serious neglect of all of these six children.  
16.	However, the judge did not make clear that he had fully understood the limited nature of the basis of plea, which accepted responsibility for the neglect only between August and November.  Indeed, some passages suggested that he thought that he was to be sentenced for neglect over a much longer period than neglect proved against his wife KP at her trial but we think that he may in this way have allowed his view of the case against RP to be contaminated, as Mr Butterfield helpfully put it in his skeleton argument, by the very adverse view which he had understandably taken of KP during her trial.  
17.	Moreover, this was not a case of deliberate assault but of low grade neglect, characterised by a general failure of care as a result of which the children had ceased to thrive and to meet developmental milestones.  He was faced with a series of serious problems of his own with which he simply could not deal.  He could, and no doubt he should, have sought help; that he did not do so seems to us to be just another manifestation of his inadequacy and of the problems which he was facing.  We ask ourselves, can it truly be said that this offence was so serious that only a custodial sentence could be justified.  It was not, in our judgment, a case which called for punishment at all.  We think this was a case for leniency, indeed for mercy, and the appellant's circumstances require ‑‑ indeed they still require ‑‑ help and assistance.  Accordingly, we quash the sentences of imprisonment and substitute on each count a probation order which will run for 12 months from today.