The Court of Appeal found that a sentencing judge made a clear error by failing to impose a separate sentence for an assault causing harm to an infant, but refused the Director of Public Prosecutions’ undue leniency appeal because it would have no practical effect on the respondent’s time in custody.
In an ex tempore judgment delivered on 27 January 2022, the court said the respondent had pleaded guilty to the section 3 assault against his daughter, then just under four months old. The offence arose from an incident on 18 September 2019, when he assaulted his former partner, who was holding the child. The child’s head struck a wall. She sustained a cut and bruising, vomited and was admitted to hospital for overnight observation.
The sentencing judge imposed a six-month sentence for a section 2 assault on the former partner and took the remaining counts into account, including the section 3 assault on the child. The judge also imposed a two-year term for offences arising from a separate incident in June 2020, with the sentences running concurrently. The respondent was at liberty by the time of the appeal.
The DPP argued that the judge should have addressed the child assault separately and imposed a sentence for it. The respondent challenged the Court of Appeal’s jurisdiction, arguing that taking an offence into consideration meant there had been no conviction. The court rejected that argument: the guilty plea remained a conviction, and the judge had not vacated it.
The court agreed with the DPP that the sentencing judge erred. It said the reckless assault on the infant was considerably more serious, on the facts and in law, than the section 2 assault on her mother. The risk to the child was enormous, the court said, and the harm significant. A significant sentence should have been imposed for the child assault.
However, the DPP had not appealed the sentence for the June 2020 offences and accepted that no consecutive sentence was sought. Any sentence imposed on appeal would not extend beyond the existing two-year term. The court said the appeal was therefore academic and refused it. Its order did not replace or increase the sentence.