Lloyd Jenkins, solicitor advocate at the PDS, recently appeared before the Court of Appeal, with leave of the Single Judge, to appeal a sentence of 18 months immediate custody imposed at a local crown court in January 2022.
It was a somewhat unusual situation given that my client and his co-defendants were all released on Home Detention Curfew (HDC) two days prior to their appeal hearing.
Their Lordships upheld my submissions. It was agreed that this was a case where a suspended sentence should have been imposed, in accordance with the Imposition of Community and Custodial Sentence – Definitive Guideline given:
- the passage of time between the offence and the date of sentence (3 years, 3 months)
- my client’s age at the time of committing the offence (then aged 20)
- his lack of previous convictions, strong personal mitigation and lack of offending since
Given the fact that my client had been released on HDC, the best their Lordships could do was to quash the above said sentence with a reduced term of 9 months.
Facts about the case
Briefly, my client and his two co-defendants worked for a local care home as support workers. They were responsible for supporting vulnerable adults with challenging behaviours and learning difficulties.
The victim in this case was 54 years old. He was profoundly deaf and suffered epilepsy, anxiety and learning difficulties, requiring 24 hour care.
In September 2018, my client and his two co-defendants were trusted to take the victim on a holiday to the seaside, for a change of scenery and environment.
Whilst on holiday, all three abused their positions of trusts by subjected the victim to degrading behaviour, which they foolishly videoed on their mobile phones.
There were many incidents, one of which occurred at the beach. The victim was deliberately mocked and humiliated when they placed a limpet on his back. He was terrified and the footage made distressing viewing. The victim was visibly upset, both screaming and crying. The group could be heard laughing and mocking the victim in the background. There were many video clips of a similar and distressing nature.
My client candidly reported their collective behaviour to staff on his return. He admitted that they were “mean” to the victim and further admitted that they also got drunk. This prompted an immediate investigation. My client was promptly interviewed and again made candid admissions, following which he was dismissed from his role on the grounds of gross misconduct.
His younger male co-defendant (then 19 years old) also engaged in the process and admitted wrongdoing. He too was promptly dismissed.
His older female colleague (then 26 years old) refused to engage and refused to attend any meetings. She too was dismissed.
In November 2019, my client was interviewed by the police as a volunteer and again, to his credit, made candid admissions. Following receipt of postal requisitions, all three appeared before the magistrates’ court in June 2021. Despite the Crown agreeing that the case was suitable for summary jurisdiction, the older female co-defendant elected crown court trial.
On behalf of my client, I wrote to the CPS to canvass an adult caution or conditional caution based on his cooperation and admissions to date. My request was refused.
In July 2021, my client and his younger male co-defendant both pleaded guilty to the offence indicted namely, ill-treatment or wilful neglect by a care worker, contrary to s.20(1), Criminal Justice & Courts Act 2015.
The offence charged is an ‘either way’ offence, carries a maximum sentence in law of 5 years custody; there are currently no sentencing guidelines.
The older female continued to be difficult, serving a Basis of Plea, minimising her wrongdoing and culpability. Both the CPS and the court refused her Basis of Plea.
A month later, she eventually entered a guilty plea.
In January 2022, all three were finally sentenced to 18months immediate custody. The sentencing judge remarked that all three defendants exhibited a failure in care and support for a vulnerable man, their behaviour was most degrading and humiliating that only an immediate custodial sentence could be justified.
What happened on appeal
Their Lordships disagreed and found that although this was a deeply disturbing and unpleasant case, the sentencing judge did not sufficiently take into account their respective ages at the time (19, 20 and 26), the passage of time between the offence and sentence (3 years, 3 months) and also strong personal mitigation which would have justified a suspended sentence.
Given that all three appellants had been released early via HDC, the original sentence of 18 months immediate custody was quashed and replaced with the reduced sentence of 9 months immediate custody (now served) which finally put an end to a case that should have been disposed of months ago.