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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Vestuto, R. v [2010] EWCA Crim 721 (23 March 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/721.html Cite as: [2010] EWCA Crim 721, [2010] 2 Cr App Rep (S) 108, [2010] 2 Cr App R (S) 108

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23rd March 2010

1. LADY JUSTICE HALLETT: On 2nd July 2009 in the Central Criminal Court, the appellant pleaded guilty to two offences, one of causing or allowing the death of a child, contrary to section 5 of the Domestic Violence Crime and Victims Act 2004, and one of cruelty to a child under the age of 16, contrary to section 1(1) of the Children and Young Persons Act 1933. On 8th September 2009 His Honour Judge Peter Thornton QC sentenced her to 6 years' imprisonment on count 2, causing or allowing the death of a child and 12 months' imprisonment concurrent on the cruelty count. The days she had spent in custody on remand were ordered to count towards the sentence. An order was also made pursuant to the Criminal Justice and Court Services Act disqualifying her from working with children. She appeals against the sentence with leave.
2. The background to the offences is as follows. The appellant and her partner had two sons. The deceased, Renzo, who was aged 18 months at the time of his death, and Remzi, the complainant in count 4, who was aged 3 at the time of the offences. The appellant gave them Amitriptyline, an antidepressant drug with sedative effects, causing Renzo's death and in circumstances amounting to cruelty to Remzi. Her plea was accepted on the basis that she intended no harm to her sons but that she knew that what she was doing was "wrong and risky".
3. In the months before Renzo died the appellant had told a neighbour that she had given him medicine to help him sleep. About 2 weeks before Renzo's death the neighbour overheard a telephone conversation in which the appellant said she had got some sleep the previous night because she had medicated him. Also at about this time, 19th August 2007, the child's grandmother and aunt noticed that the child was in distress. He was sweating profusely. They were concerned as to his condition. The appellant assured them she had consulted the doctor about his teething and that sweating was caused by teething problems. She said the doctor had given her some medication to help the child sleep. In fact the sweating, as must have been obvious to her, was due to the dosage with Amitriptyline. There was no record at the surgery of the appellant's ever having consulted her doctor about the child's teething problems.
4. Miss Forshall QC, on the appellant's behalf, accepts that after this conversation with the child's grandmother and aunt, she must have continued to poison the child with the drug, despite the fact that she had been alerted to the deleterious effect upon him.
5. In the early hours of 2nd September 2007 Renzo cried for about an hour. He woke up distressed at about 4.45 and fell asleep again. At about 6.00 he woke up screaming. He was having difficulty breathing. The appellant alerted her partner, who telephoned for an ambulance while she attempted to resuscitate the baby. The paramedics arrived to find Renzo grey, silent and his eyes only partially open. He had no pulse. He was not breathing. He did not respond to their efforts to resuscitate him. He was taken to hospital where he was pronounced dead at just after 11 o'clock that morning.
6. The police spoke to the appellant. She told them that her child had a history of convulsions. There was no evidence of that. There was, however, a record of her visits to the doctor. The appellant was given repeat prescriptions of Amitriptyline for herself on the 3rd and 17th August. At the same time she obtained a prescription for the children, namely Phenergan. She lied about why she wanted more Amitriptyline and why she wanted Phenergan for the children, telling the doctor that she intended taking them on a flight to Turkey.
7. A second postmortem concluded that Renzo's cause of death was Amitriptyline intoxication. A toxicology report showed traces of Amitriptyline in Renzo's blood present in a fatal dose 10 times the therapeutic dose for an adult. The drug and its breakdown product were subject to postmortem redistribution, so it was not possible to calculate the exact quantity ingested. Further testing however indicated chronic use of the drug over time rather than acute ingestion.
8. The overall picture was that Renzo had been exposed to a number of sedatives and painkillers in the weeks and possibly months leading up to his death. When tests were carried out on Remzi, low concentrations of Amitriptyline and its breakdown product were found in hair samples taken from him. According to the experts this could have been the result of an isolated incident of giving him the drug or occasional exposure to it. Fortunately for Remzi there would be no lasting effects.
9. It is pointed out by Miss Forshall QC on the appellant's behalf that there were no injuries to suggest that the children had been subjected to any other form of physical abuse. Apart from the administration of drugs, both children appeared well nourished and well cared for.
10. Traces of Amitriptyline were found in syringes at the appellant's home, indicating that she had taken the tablets, crushed them up, put them into liquid and administered them orally via a syringe.
11. On 18th September 2007 police officers attended the appellant's home and told her what the postmortem examinations had shown. She denied any knowledge of the drug Amitriptyline but it was on a list of prescriptions found in her kitchen. She then said it helped her sleep. When arrested she denied administering any drugs to her children. The investigation continued over a period of months, with several members of the family falling under suspicion. In January 2008 she was arrested again. She was told about the result of the tests on Remzi. Again, she denied the allegations, this time claiming that her mother had given the children Amitriptyline tablets. She said as much to her partner as well. She was interviewed again in the summer of 2008 and again she repeated her denials.
12. The other family members who fell under suspicion included Renzo's father and the appellant's own mother, both of whom were struggling with their own grief at Renzo's death.
13. The victim impact statements from the children's father and from his sister make heart rendering reading. The appellant's conduct has caused immense and lifelong harm to numerous members of the extended family, but in particular to Renzo's father and to his brother. Remzi misses his brother terribly and his father is dreading the day when he has to inform his child of what their mother did to him and to his brother.
14. As far as the appellant's background is concerned, she was of previous good character and aged 28 at the time of sentence. The author of a pre-sentence report upon her commented on her unhappy childhood. She attended a special education school because she was described as "borderline intelligent" and suffering from dyslexia. Miss Forshall explained that she has struggled for many years with her illiteracy. As a child she was placed on the child protection register due to neglect and physical abuse.
15. The author of the pre-sentence report questioned whether what the author called "negative childhood experiences" had affected her decision not to seek professional help for her difficulties. However, the probation officer may not have been aware that the appellant was in regular contact with her own doctor and prepared to ask him for medication even if she lied about her reasons.
16. The appellant presented to the probation officer as an "isolated individual", with what were described as "limited support networks". Yet, according to the victim impact statement from her partner, Mr Hassan, she had a loving extended family who lived nearby and were always ready and willing to help if required. According to him, there should have been no need for her to feel lonely or isolated. If she was having problems coping, there were plenty of people around to help her.
17. The probation officer went on to explain that the appellant struggled to accept responsibility for her actions or to explore why she had offended in this way.
18. Miss Forshall very frankly conceded that her cause before this court this morning was not assisted by a report from the prison unit in which the appellant is detained. It makes unhappy reading. Apart from a short period post sentence, when believing she had "got off lightly" in receiving a sentence of 6 years, she behaved well, she has been a difficult prisoner. She has been responsible for bullying other prisoners and of trying to intimidate people to get her own way. She gave birth in prison to another child, a daughter, and understandably, has been distressed by having that child taken away from her. However her distress does not seem to be linked to her bad behaviour.
19. The judge, in his carefully crafted sentencing observations, observed that the appellant embarked upon a deliberate course of administering adult drugs to her children to calm them down and to make them sleep, for purely selfish reasons. She knew that it was wrong and risky. She obtained regular prescriptions of Amitriptyline, a pain killer with sedative effects over a period of months. This course of conduct suggested to His Honour Judge Thornton a planned, ordered and controlled administration of the drug to the children. He also deprecated her conduct in allowing suspicion to fall on other family members and allowing the father of her children and her mother to be placed in custody and interviewed under caution.
20. The judge accepted that there were mitigating factors, including the basis of her plea, which was that she did not intend or wish to cause her children harm and her background. He also accepted that she would suffer as a result of her actions because her children were likely to be taken away from her forever. He noted that when charged with the offences, she then entered a timely plea of guilty. Further, apart from the administration of the drugs, he acknowledged there were no other signs of neglect or ill-treatment.
21. Miss Forshall sought to persuade us that given the basis of the plea the sentence was manifestly excessive in all the circumstances. She claimed that a review of other decisions of this court indicate that a sentence of 6 years would be an excessive sentence on a guilty plea for manslaughter for a parent who had otherwise extended acceptable care to a child over the course of the child's lifetime. She suggested the appellant was in that category. She referred us to the child health records that showed that Miss Vestuto had appeared to bond well with her sons, had cared for them well and that they had made the normal milestones.
22. Miss Forshall took exception to the judge's categorisation of the appellant's conduct as "planned and controlled". She argued it was not callous and brutal in the way that some carers behave towards small children by failing to intervene when a child is caused prolonged and evident agony from persistent physical cruelty.
23. She explained that Miss Vestuto took most of the night-time responsibility for the two boys. During the night it was well-known within the family that Renzo suffered from breath holding episodes and episodes of continued crying. Miss Vestuto, we are told, felt under pressure to keep the noise down in the flat because there had been complaints from other neighbours. She feared that the housing association would take the flat away from them if the children were not kept quiet.
24. Miss Forshall urged us to accept that the appellant is distraught at what she has done. However, a woman distraught at killing her child and poisoning her other child is not quite, we fear, the woman who is portrayed in the pre-appeal report. However, we do very much bear in mind that the appellant will face the consequences of her actions far into the future. She will be separated from and will not be a mother to Remzi and there is a very real possibility she will never be allowed to be a mother to her daughter.
25. Miss Forshall attempted to assist the court by referring us to a number of decisions of cases of poisoning of children or of cruelty to children, but she frankly conceded that they are essentially all fact specific. She provided for us the decision in R v Irkam and Parveen [2008] 2 Cr App R(S) 24 at page 37, in which Sir Igor Judge (as he then was) President of the Queen's Bench Division, described the association between the new offence of causing the death of a child under section 5 and offences of manslaughter. The President observed that there is a clear link between the new offence and offences of manslaughter and the general approach to sentencing in manslaughter cases provides useful assistance to the court when considering a sentencing decision after conviction of a section 5 offence.
26. We have borne all Miss Forshall's helpful submissions very much in mind. With respect to her, to our mind, her submissions in effect gloss over the fact that this appellant's conduct was a sustained, determined, persistent course of cruel conduct towards not just one but two helpless children. It led to the death of one of them. It could have led to the death of the other. The appellant was callous and controlled. This was not an isolated incident of a desperate carer, who in the heat of the moment resorts to desperate measures and short-lived measures to try to quieten a child. This appellant knew the risk when she started dosing the children. Her family expressed their concern about the child's sweating profusely. Yet, she carried on dosing the child for weeks or months, knowing full well towards the end that the child must have been severely at risk. She did not seek help for the dying child. She did not seek help for her second child even when the baby was taken into hospital.
27. From the material before us, it seems that she put the lives of both her children at risk simply for her own purposes. She was not, we are told, a lonely isolated woman trying to cope in the midst of appalling circumstances. She had the assistance of her GP. She had the assistance of her partner and her extended family. Instead of asking them for help she deliberately and cruelly took her own course. Having caused the death of her child she then exacerbated the suffering of members of her family and the child's father by allowing them to fall under suspicion and remain under suspicion for a period of some 15 months.
28. We must look at the totality of the appellant's offending and determine whether or not a sentence of 6 years was excessive for the totality of that offending. In our judgment, as helpful as Miss Forshall's submission were, we are not persuaded that this sentence can be described as in any way excessive. For those reasons the appeal must be dismissed.