R v Heaney  EWCA Crim 2682
The appellant had been convicted of two offences under MCA 2005 s44 and sentenced to consecutive 3- and 6-month sentences of imprisonment; on appeal, these were ordered to be served concurrently. The court took into account that 'neither of the victims in fact sustained any distress or injury and they were very short incidents', that the consequences for the appellant had been grave because she had lost her career, that she was a middle-aged woman with two young daughters, and that she was of previous good character.
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Neutral Citation Number:  EWCA Crim 2682 No: 201104404/D1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL Friday, 4th November 2011 B e f o r e: MR JUSTICE IRWIN MRS JUSTICE THIRLWALL DBE R E G I N A v DAWN HEANEY Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) Mr B Williams appeared on behalf of the Appellant J U D G M E N T (As Approved) Crown copyright© 1. MRS JUSTICE THIRLWALL: The appellant, Dawn Heaney, is 38 years old. On 8th July 2011 in the Crown Court at Leicester she was convicted, after a trial, of two counts of ill treatment of a person who lacks mental capacity, contrary to section 44 of the Mental Capacity Act 2005. She was acquitted of two other counts of ill treatment and no evidence was offered on a further similar count. 2. 0n 4th August 2011 the judge sentenced her to 9 months' imprisonment, being 3 months' imprisonment in respect of count 3 and 6 months' imprisonment consecutive in respect of count 4. As a result of those convictions the appellant is now prevented from working with vulnerable groups, in accordance with the Schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations, the appellant will be included in the relevant list by the independent safeguarding authority. This is her appeal against sentence, which she brings with the leave of the single judge. 3. The fact were these. The appellant worked as a senior carer at Wymeswold Care Home in Leicestershire. She had worked as a carer for many years. The residents of the care home were elderly and vulnerable people. One resident was in his 80s, the other, a woman, was in her 90s when the offences occurred. The man had dementia and Alzheimer's disease; he was disorientated in time, place and person. He could become violent and agitated. The staff knew this and had been instructed to be particularly patient when dealing with him. 4. One day in 2009, while the staff were serving afternoon drinks in the lounge area of the home, the man complained that he did not have enough sugar in his tea. The appellant took the cup from him and put seven or eight spoonfuls of sugar into his tea. She then left the room and came back with a bottle of vinegar. She said: "We'll give him some of this as well." She then poured a quantity of the vinegar into the tea and watched the man drink it. Other staff looked on in horror. That was count 3. 5. Count 4 concerned the woman to whom I have already referred, another vulnerable person. She suffered from dementia and was described as very confused and unable to indicate her needs. It is difficult to think of anyone more vulnerable. One day, in the late summer of 2009, she was sitting in her wheelchair in a corridor looking out of the window. For no reason, the appellant approached her from behind and slapped her across the back of the head. She did so quite openly. Three people saw what she had done and one of them asked her why she had done it. She just laughed and walked on. It is apparent that she had no shame about such a gratuitous assault on a vulnerable elderly person. 6. The appellant denied the offences and was convicted by the jury. 7. It is clear from all that we have read about her that she did not then, and as Mr Williams very candidly has said, she does not now, accept she committed these offences. She is, of course, completely wrong about that. We hope that in due course she will have some insight into what she has done and some remorse. 8. Mr Williams, who has appeared on behalf of the appellant today, has put his case both in writing and in oral argument with admirable clarity and focus, and we have been considerably helped by him. He does not seek to argue that a sentence of imprisonment was wrong in principle, nor does he seek to argue that the judge was wrong to refuse to suspend the sentence. Very realistically his focus has been on the length of the sentence. 9. As the judge, who after all presided over this trial observed, the gravamen of these offences were in the thoughtless and heartless unkindness committed in serious breach of trust. We agree. Elderly people have a right to be treated with respect by everyone in the community. When they are ill and living in residential homes, they are entitled to expect, and we must demand, that they are properly cared for. What this appellant did was the opposite of that. 10. However, we acknowledge that neither of the victims in fact sustained any distress or injury and they were very short incidents. The consequences for the appellant have been grave: she has lost her livelihood and has no realistic prospect of being able to work in her chosen field again and, if we may say so, rightly so. She has two young daughters at home. She is a woman in early middle age. The effect of a prison sentence upon someone like her, who was until now of previous good character, should not be underestimated. 11. Mr Williams submits that a total sentence of 6 months would have been commensurate with the seriousness of the offending. We agree. We are not going to interfere with the length of the individual sentences. We consider, however, that they ought to be served concurrently. Accordingly and to that extent, this appeal is allowed. The sentences of 3 months and 6 months in respect of count 3 and 4 remain but they are to be served concurrently.
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