Neutral Citation Number: [2008] EWCA Crim 425
No: 2007/6449/A5 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 19 February 2008
 
B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE BLAKE 
 
DAME HEATHER STEEL DBE 
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R E G I N A 

v 

MK
 
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Mr F Ferguson appeared on behalf of the Appellant 
Miss K Tompkins appeared on behalf of the Crown 
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J U D G M E N T 

1.	DAME HEATHER STEEL:  On 8th October 2007 in the Crown Court at Luton the appellant, who is 23 years of age, pleaded guilty to an offence of administering a poison or noxious substance, that being Methadone, so as to endanger the life of a 3‑year‑old child, contrary to section 23 of the Offences Against the Person Act 1861.  On 13th November 2007 he was sentenced to a period of four‑and‑a‑half years' imprisonment with a direction that 164 days served on remand should count towards his sentence.  He appeals against that sentence by leave of the single judge and this morning is represented by Mr Ferguson.  
2.	Briefly the facts of the offence are these.  The appellant lived in Luton with his extended family.  On 30th May 2007 he was responsible for the care of a 3‑year‑old child, K, both the child's parents being at work.  He had cared for the child on previous occasions and the child was variously described in the papers as his nephew.  
3.	At about 3.30 in the afternoon the appellant called an ambulance.  Paramedics found K unconscious and in respiratory arrest.  Oxygen by the mouth was applied and he was taken to a hospital in Luton.  At about 4.00 pm the appellant telephoned K's father and informed him that his son was in hospital.  He said he did not know the cause of K's sudden illness.  Because the appellant had said that K was not too bad and he was in a stable state, the boy's father worked until the end of his shift and then went to the hospital at about 7 o'clock in the evening.  About at about 6.00 pm the appellant also made efforts to contact K's mother.  When she asked him "What have you done to K?" the appellant hung up the telephone on her.  
4.	K was in a serious condition.  It was decided to move him to Great Ormond Street Hospital.  The appellant stayed at the hospital in Luton until K was removed to Great Ormond Street at which point the appellant left.  He told K's parents he was going to go home and pack to move to Poland.  When he was challenged the appellant denied that any illegal drugs or substances had been taken or ingested by K.  At Great Ormond Street Hospital, K was ventilated and intubated using paralysing medication.  He was given intravenous fluid, antibiotics, anti‑viral medication and anti‑seizure medication as he was suffering convulsions.  He underwent a CT scan and an ECG.  Samples of blood and urine were taken and swabs were taken from his throat.  On 1st June, two days later, he underwent a lumbar puncture, with the risks that go with that procedure, to determine whether the cause was a viral infection of the central nervous system.  
5.	It is clear from the mother's victim impact statement that they stayed at the hospital with the child for about 10 days and that he was unconscious for some two days.  
6.	The appellant was arrested and from 30th May to 1st June he was interviewed.  In interview he denied that K had been given any unlawful substance, in particular Methadone.  
7.	The clinical diagnosis made by a toxicologist, Mr Humphries, on a blood sample was found to be consistent with a life‑threatening dose of Methadone being administered, that being no less than 10.5 milligrams.  A further analysis was made by Dr Flannagan of a different blood sample taken at a different time which revealed between 7.5 to 9.4 milligrams of Methadone.  It was the opinion of each of the experts that the dose administered was life‑threatening.  That dose could have caused the death of K had he not received the appropriate medical care in time.  It was the appellant's assertion that he had given the child no more than half a teaspoon of Methadone.  
8.	In his basis of plea document, the appellant said that he had planned to go to Poland.  He needed a two week prescription of his Methadone.  That being dispensed depended on him providing a urine sample that was negative for illegal drugs but positive for Methadone.  The appellant thought he could use K's urine sample to ensure it was positive for Methadone by supplying it to him through a carton of apple juice.  
9.	There was no medical report before the court dealing with the child's prognosis.  The mother's impact statement indicated that a doctor had told her that K would suffer from side effects during his adolescence, but he was currently not subject to any ongoing treatment and had no further appointments either at the hospital or with his doctor.  
10.	Before the judge passed sentence he had a copy of the appellant's antecedents which revealed two previous convictions in 2006 for theft and there was before the court a pre‑sentence report prepared by Jenna Robinson.  The court also had the benefit of submissions made by Mr Ferguson and a document setting out the basis of the plea.  
11.	In sentencing the judge took account of the plea of guilty and gave the appellant full credit for that plea.  The judge went on to set out that he was to be sentenced in accordance with the written basis of his plea and he set out the essence of that basis of plea document.  The judge very carefully identified both the aggravating and the mitigating features which apply to this case.  The judge said: 
"I accept, as I have to, because that is the basis upon which you pleaded guilty, that you did not realise that the ingestion of the quantity of Methadone you gave to the child would cause anything more than perhaps drowsiness and certainly not the very serious effects that it did cause.  You, however, are 23 years old and you have a history of drug addiction and a moment's mature reflection ought to have been sufficient to cause you to appreciate that you were taking a significant risk.  Bearing in mind that you were in charge of a 3‑year‑old child, you ought to have taken time to reflect and consider the possible consequences of your actions.  What you did was to go ahead, apparently without giving the matter any real thought, because, of course, you were more concerned with your own selfish desire to obtain Methadone to take away with you.  
The Methadone which you administered to that child resulted in a life‑threatening condition."  
The judge went to say: 
"I accept in your favour that when you appreciated how seriously ill the child was and this was all too apparent to you by reason of the state you saw him in, you sent for an ambulance.  Had you not done that he might well have died.  However, when the ambulance arrived and later at the hospital, throughout which time it was all too clear to you that he was in a very serious condition, you did not assist those treating him by telling them what you had done.  The result was that the doctors were very much in the dark as to the cause and it may well be that that child's suffering was prolonged by reason of your failure.  At the very least, you were taking again a very substantial risk with the well‑being of that child by not disclosing what had happened."  
The judge identified the three aggravating features as being, first of all, the abuse of trust which involved using a 3‑year‑old child for his own thoroughly selfish purposes.  Secondly, the life‑threatening condition which resulted from the appellant's actions.  Thirdly, the most serious aggravating feature identified by the judge was the appellant's failure to tell the doctors and ambulance team what he had done.  He was concerned with his own self preservation and not with alleviating the obvious suffering of the child.  
12.	The mitigating features are set out as his plea of guilty and the fact that the appellant had no intention to cause the child injury but apparently had no foresight that that might be the result.  The judge indicated that an appropriate sentence after a trial in respect of this indictment would have been six‑and‑a‑half to seven years and allowing full credit the sentence he passed was four‑and‑a‑half years' imprisonment.  
13.	The grounds of appeal which have been submitted by Mr Ferguson are that the sentence was manifestly excessive, insufficient account was taken of the appellant's age, his relative good character and that it was too severe in all the circumstances.  
14.	In submissions made this morning, Mr Ferguson draws our attention to the basis of plea document which was accepted by the judge.  He brings to the attention of this court that the appellant did not foresee the consequences of his actions.  Our attention was drawn to paragraph 10 of the basis of plea document which reads:
"When I gave K the Methadone, I thought that he might become sleepy but I did not think that it would make him ill.  I only gave him a small amount." 
Miss Tompkins was invited by the court to consider recklessness as it applied to this case and it is quite clear from the findings of the judge that he was satisfied that recklessness applied.  The way in which the court interpreted the appellant's role was: "I realise my actions could have caused harm and nevertheless I went on to administer the Methadone to this child".  It is relevant in considering this that in the basis of plea document at paragraph 17, the appellant set out:
"I realise that what I did was irresponsible and stupid.  I deeply regret my actions.  Other than remaining silent I took no steps to conceal what I had done." 
15.	This court has considered with great care the submissions made on behalf of the appellant and all the material which is before the court.  The case was a very serious and very difficult one.  In our view the offence was significantly aggravated by the appellant's failure to alert the authorities to the reason for the child's life‑threatening illness.  The sentence of four‑and‑a‑half years was entirely appropriate in all the circumstances of the case, bearing in mind that this was a clear case of recklessness.  The judge was most careful to consider all the relevant matters in considering his sentence.  The sentence that he passed was not wrong in principle, nor was it manifestly excessive.  This appeal is dismissed.