Baby-shaking assault father successfully challenges ‘excessive’ sentence

The Criminal Appeal Court quashed the sentence and imposed a custodial term of six years and nine months after ruling that the sentencing judge’s starting point of nine years - which was discounted due to the unnamed father’s guilty plea - was “not consistent with what was held to be appropriate in these cases”.

Lord Brodie and Lord Drummond Young heard that the appellant “SD” pled guilty at the trial diet of assaulting his six-week-old daughter to her severe injury, permanent impairment and to the danger of her life.

The High Court in Glasgow was told that he had become “frustrated” with the baby and “lost control” after she had kept her parents awake during the previous night.

While the sentencing judge accepted that there was “no wickednesss” in his actions, she viewed this as a “deliberate and violent assault” using a degree of force which was “obviously likely to cause serious harm” to a six-week-old baby, who was left with catastrophic, life threatening injuries.

On 31 March 2015 she sentenced the appellant to seven-and-a-half years’ imprisonment - discounted by around 15 per cent from nine years for the “utilitarian benefit” of the guilty plea, albeit that it had been tendered very late.

But the appellant challenged the sentencing judge’s characterisation of what he had done as being “obviously likely to cause serious harm”.

It was submitted that it would not have been apparent to a layman that such serious harm would be caused by the degree of force which had been used in the case.

There was a short period of shaking by a “hands on” father where there was “no history of previous abuse” of the child.

It was a “momentary loss of control” lasting a few seconds on the part of a young man who was a “loving father” and who had not previously served a custodial sentence.

In these circumstances it was argued that a starting point of nine years imprisonment was “clearly excessive”.

The appeal judges accepted that the consequences of the assault were “unintended” by the appellant, but did not accept the submission that the risk of some degree of serious harm to a young baby was not such as to be obvious to a layman.

Delivering the opinion of the court, Lord Brodie said: “On sentencing in a case of assault assessment of the seriousness of the offence will usually involve consideration of two potentially independent factors, the culpability of the offender’s act and the severity of the consequences of that act.

“We say potentially independent because the likelihood of it having adverse consequences is relevant to the judgment as to the culpability of a particular act. In this case, the consequences of the assault on the child were catastrophic.

“The sentencing judge says in her report that it is difficult to conceive of a more vulnerable victim than a six week old baby. We can only agree and we would see that as being clear to any parent, however inexperienced that parent may be.

“We therefore consider that the sentencing judge was correct to approach this case as one which involved a significant degree of culpability as well as a catastrophic result. She was entitled to take the view that only a significant custodial sentence was appropriate.”

However, the judges noted that she was not addressed on the issue of “comparative justice” and said they did not consider that a starting point of nine years was consistent with what was held to be appropriate in these cases.

Lord Brodie added: “In the present case there was evidence that the appellant had shaken the baby and then violently thrown her down onto a couch. Whether or not the throwing of the infant onto the couch exacerbated her injuries, it pointed to an act of real aggression on the part of the appellant. We see that as something which requires to be reflected in the sentence imposed.

“Accordingly, we shall quash the sentence imposed on 31 March 2015 and impose an alternative sentence of six years and nine months. We have arrived at that figure by taking a starting point of eight years imprisonment and discounting that by a similar percentage to that adopted by the sentencing judge.”