Defence pleas in mitigation

Next up counsel for the defendants offered pleas in mitigation. These are things that might reduce a sentence, difficulties defendants were or are facing, caring responsibilities, remorse and so on.

Peter Bennett

Mr Callan started by returning to the authorities discussed by Ms Richardson and HHJ Smith when discussing sentence guidelines. He said that his general submission is “this offending is the lowest level of defences charged”. He said the other cases dealt with physical assault or prolonged abuse.

[It was very hard to hear Mr Callan so I did not catch most of what he said].

I do submit that this offending was less serious than the offending in the authorities that have been summarised for your honour.

Next he told the court that Mr Bennett’s work was described as senior care officer but he only earned an additional 50p per hour.

HHJ: I remember the distinction of wages being drawn to the jury’s attention during trial. Was said so far as financial reward was concerned, benefits of seeking that promotion were said to be as little as 50p an hour, but there was an application for that promotion by three of these defendants, and upon being given that position, they must have sought it for some reason over and above financial reward if what you submit is right. Whatever the motives, once sought that position, that was a position of some responsibility Mr Callan.

MrC: That’s true, I don’t want [can’t hear] isn’t more senior [can’t hear]

HHJ: No but that may be right, but when it comes to a particular shift, particularly the night shifts, they were those people there with a position of seniority. And like all roles where there is, there are those different levels of responsibility, its inescapable isn’t it that those lower down looked up to them for guidance, and for them to set the standard, and my real concern in this case, has always been that things seemed to go wrong at Whorlton Hall, it became a toxic environment, and it was in that context these offences were committed.

MrC: Well yes they were more senior than those below them… putting in context, reflecting on pay [can’t hear]

HHJ: It’s a headline figure to be put on it, to try to illustrate how little additional responsibility they had, but I don’t accept that reflects the realities of the work they were doing.

There were two senior healthcare assists on duty on each shift, because they were to be called at points of particular crisis. So if things were, in respect of particular care user, getting to a head, it was the Seniors who were brought in, because they were adjudged as their promotion showed, to have the skills and experience, that they could bring to bear to diffuse a situation in circumstances where the other staff might not be permanent, might be agency staff, even if were permanent employees might not had the experience those that hold senior position had. Others working at Whorlton Hall looked up to them.

MrC: I’ve made my submission on that, your honour may take view this institution was toxic [can’t hear]

HHJ: It certainly seems as though there were particular combinations of people working where it allowed ill-treatment to take place.

MrC: [Can’t hear]

HHJ: I’m not making any finding about whether or not Whorlton Hall was neglecting its patient on a wholescale basis. That was not the evidence I was asked to investigate. The trial I presided over was an exercise in having a jury assess individual pieces of footage, set in context of other relevant footage, of theses defendants engaging in, well as the jury concluded, in respect of counts of ill-treatment of patients.

Mr Callan then told the court that caring for people can be very fulfilling, but the “other side of it is it can be stressful at times… challenging… not particularly well respected”. He said that this job has got two sides and his client had sustained mental health issues from this work.

HHJ: It was very challenging work Mr Callan, I don’t for a moment take away from that, as you say it is not as well financially rewarded as a lot of people think it ought to be. For a good many people it is a calling, it is a vocation. And right across the country thousands of people are employed caring for the vulnerable, and they do it without really proper financial reward. But they do it because as I say it’s a calling. I wonder whether, when I read the pre-sentence report, partly that paragraph and partly some of the other comments, whether your lay client was ever suited to this kind of work.

Mr Callan responded that the work made Peter Bennett mentally ill, whether he was suited to it or not.

MrC: The work made him mentally ill, whether he was suited to it or not

HHJ: In a sense when I say not suited to it, it’s a global observation, I make for this reason, in part because probation service detected some troubling comments in their interview. Leaving that to one side. The impact of the challenges upon him, was also considerable. So, for both of those reasons really I am left wondering whether he was well suited to it, but the reality is this, is it not Mr Callan, he lost his job in this sector, as consequences of this case. That is equally applicable to all four of these defendants. I can not imagine for a moment that any of them will ever work in the care sector again.

Mr Callan told the court that his client had paid heavily, that he had retrained as a HGV driver and had been doing agency work. He was still taking medication for his mental illness and that the impact of losing his job, the impact of this investigation and the impact of the conviction were very severe.

He said that there was a letter from Mr Bennet’s wife. He asked HHJ Smith to consider his client’s age [he is 54], his previous lack of offending and he again reiterated that his general submission was that “this is really at the bottom of the scale of this kind of offending” and that there was “really no reason not to suspend a sentence in this case”. He said that the chances of this man appearing in court again were very low.

HHJ Smith told the court that the Overarching Guidelines in relation to Custodial Sentences remind judges who are dealing with sentencing of people where the offence crosses the custody threshold, that where a sentence is less than 2 years in prison, it might be appropriate to suspend the sentence if:

• there is a realistic prospect of rehabilitation
• there is strong personal mitigation
• or if immediate custody would result in significant harmful impact on others e.g. if they have caring responsibilities.

He said that on the other side, there are factors indicating where it is not appropriate to suspend a sentence, when someone presents a risk or danger to the public.

HHJ: Pre-sentence report in each case conclude every one of these defendants is a low risk moving forward. No great surprise in that assessment, each of them is of good character, each has lost their job and will never work in the caring industry again, so those reasons one can understand why probation service came to those separate conclusions.

Matthew Banner

Mr Constantine started by discussing the Section 66 role in this case and said “nothing demonstrates hostility beyond that inherent in the commission of the offences”. HHJ Smith said that did not mean that Section 66 did not apply and explained further what he had said in the opening discussion on sentencing guidelines.

MrC: My submission is there is no evidence of hostility

HHJ: So you say Section 66 does not apply, whereas one of the ways in which it might be thought to apply is if it is inherent within the offence, and therefore there isn’t an uplift.

If anyone was saying we’re expecting the judge firstly to find Section 66 applies, then if it does to apply an uplift, what I’ve said to Ms Richardson is if it does apply, this is not a case where there would be an identifiable uplift because it is inherent in the offence

MrC: We’re probably in the same position, I can’t assist any further on it

Mr Constantine then said that the evidence in this case, was that Matthew Banner was one of three senior healthcare assistants. He said the circumstances of his involvement, with one exception in Count 6, was that he was summonsed by others because things had escalated. He said these were not occasions where he was simply acting of his own volition, he was there because others were in an emergency type position.

HHJ: He was asked to go to take control, and what he did to take control was ill treat the patients.

MrC: That’s the jury’s conclusion

Mr Constantine then said something that I could not hear but HHJ Smith sought clarification that he was saying this was not a pre-planned offence. Mr Constantine said his submission was that “this offending tends towards the lower end of any possible scale”. He said other cases that had been considered related to physical assault and that there was “no suggestion whatsoever of physical assault”.

MrC: Simply a different level, no violence or threat of violence, not said to be any direct insults on anyone or name calling.

Your honour had some discussion with Mr Callan about 50p an hour wage difference, but your honour really I invite the court to look at what it meant to be a senior healthcare assistant.

You will I’m sure recall Mr Banner’s evidence, he sought promotion to that level in order to get some training, that was one of things he had to do to try and progress. These people, each of them, worked against a background, you’ll recall… where was very little training whatsoever

HHJ: Mr Constantine, I thought this might be a theme of the mitigation, so in anticipation of that I’ve been reflecting upon it.

Any job requires some training. Your job, my job, the job of a healthcare assistant, or senior healthcare assistant, but there’s only so much that training can provide you with.

I was thinking about this the other day, was struggling to think of a job where there wouldn’t be on the job learning. Learning by experience, learning from seeing other people doing certain things, well or not so well. In that respect your job, my job, the job of a healthcare assistant, all involve learning on the job.

So, there was a great deal of criticism being made of those running Whorlton Hall that they hadn’t provided sufficient training, but each of these patients with their complex needs, needed an individualistic approach to their care. Bespoke if you like. And although there were written care plans, even those were only designed to support and help people to look after the patients.

And so I am bound to confess I wasn’t particularly impressed in the course of the trial, by the suggestion all of this had been brought about by a lack of training.

What was undoubtedly the case was that the resources were stretched. Olivia Davies said as much herself in her evidence, and the stretching of resources, the level of staffing and within that the turnover of staff, the use of by necessity considerable amount of agency staff, that was in my judgement on the evidence I heard, a more significant cause of the problems here.

There wasn’t the experience in how to deal with particular patients with particular issues at particular times, that it seemed to me was the better point.

MrC: You are of course quite right, is some on the spot learning, those of us at the bar try as best we can to deal with the individuals we encounter, try to assess them and decide how best to approach the individual.

The difference with this scenario, is no matter how much barristers or care workers have on the job training, what is perhaps different in terms of care workers are concerned, is changing individual needs. So perhaps unpredictably changing needs those individuals have.

Again your honour will recall from the trial the goal posts moved quiet often with certain individuals.

HHJ: That’s my point Mr Constantine, how can you provide training for that?

MrC: It illustrates the difficult situation they were in… limited training …

HHJ: I’m under no illusion of the challenges individual employees faced, have that very much on board, to lay at the door of insufficient training was in my view during the trial misguided. It was the defendants evidence, each said they didn’t get sufficient training and that was one of the reasons this occurred. I really was unimpressed by that argument. Do think was more relevance and more impact that they were under significant pressure.

MrC: However it is labelled, simple fact is there were individuals who were not equipped, for whatever reason, to deal with highly complex individuals who were in their care. That, I’d submit, is the inescapable conclusion, however it came about.

Your honour as I say, dealing with Matthew Banner, you have to sentence him for 5 offences. Each involves verbal communications, at the heart of the offending, I‘ll not go behind the jury’s finding, that would be wholly inappropriate.

Your honour has been able to read the pre-sentence report. You’re dealing with someone now approaching 5 years after the commission of these offences.

You know he was a man of good character, but for these matters. He has not offended in any way, shape or form whatsoever.

As you already observed, he immediately lost his job. As you read in the report, he obtained an alternative appointment, turned up for work after his conviction for this matter, in his words he was met at the door. Not being put off by that, as you’ve read in the report, he tried to secure some alternative training.

He has lost his job, he has lost his house, he has for some time been sleeping in his car. He has been assisted by very kind friends who’ve given him sofa to sleep on or place to stay.

He tried to get some training as HGV driver, appear [can’t hear] doesn’t live in correct postcode area, that is not available to him.

Not being put off, he now works as a cleaner. Demonstrated throughout his life that he can [can’t hear] he can be useful to society, your honour knows he is the father of a child with various care issues arising during the course of the trial. His son does have his own health needs but Mr Banner is not the sole carer of his son.

Mr Constantine asked HHJ Smith to impose a community sentence, and assist Mr Banner.

MrC: If you are against me, you conclude this must be met by imposition of a custodial sentence, then the circumstances of this particular case could probably be suspended. I’m not sure can assist you any further.

HHJ: Only in this way, can you assist with timetabling here, it’s taken quite a long time to bring this case to a conclusion. I didn’t ask Mr Callan because we know circumstances in which he’s kindly come to assist the court today

MrC: Convictions were returned by the jury at the end of April

HHJ: Defendants were before the Magistrates Court in November 2021. A complex inquiry takes considerable time following arrest to reach a point of charge, entirely understand that. Quite apart from the impact the pandemic will have had during that time, slowing things down as it did. After the first hearing in Magistrates Court, were in Crown Court by 7 December 2021

Case was set down for trial, earliest date was February 2023, was when we had the trial. As you say, the jury returned their verdicts in April.

In a case involving multiple counsel and sentence hearings of this sort of length, in terms of court time needed, couldn’t find a date until July 2023

MrC: Case was set down to sentence in July. There was an issue that quite properly meant the case could not proceed on that date. Relisted towards end October.

HHJ: So everyone is clear, July date could not go ahead, no fault of these defendants. The July date, if I recall, was vacated the night before Ms Richardson?

MsR: Yes, very short notice. October date had little more notice, again no fault of the defendants

HHJ: October date vacated, again very good reason, no fault of any these defendants, next date we could find was today?

MrC: Yes. So my submission is whatever the delay has been, has not been the fault of any of defendants in this case.

HHJ: No

MrC: Point I made, your honour knows only too well, we’re now some 5 years after the dates of the offences.

Ryan Fuller

Mr Knox told HHJ Smith that he had submitted a note intended to be helpful. Mr Knox started by focusing on the delays in the case reaching sentencing, five years after the offences were committed. He told the court that Ryan Fuller is not 23, as he was then, but is 28 and that this is “something that has had a real impact on his life in the period since”.

He told the court Ryan Fuller had obviously lost his job. That he had submitted references and a position statement and a note on his present circumstances. Mr Knox told the court that his family arrangements were complicated, that he came from a big family and had responsibilities for that family. He said he talks about his god parents who had “been like second parents” and how they have “real health difficulties”.

Mr Knox also asked HHJ Smith to bear in mind the substance of the offences. He said that the publicity in this case “has been really very intense”. He told the court Ryan Fuller lives in a “small’ish community, he has himself been the subject of attention” that was mentioned during the course of the trial. Mr Knox says during the course of the trial someone had attacked Ryan Fuller’s car, that he had been followed on various occasions and he was punched in the face, as a matter of his involvement in the case.

MrK: Were 10 offences originally, jury acquitted him of 8 of those 10 offences, am sure you very much have that in mind?

HHJ: If I may say Mr Knox, I do and I don’t. I’ve got to sentence him for what he’s done and what he’s done is what he’s been convicted of. So I’ve put out of my mind the other allegations, indeed one of the, if there’s any benefit to flow from the delay, its precious little benefit, it’s made the task of putting out my mind that much easier, been able to focus on specific counts and what I remember of them.

So far as this defendant is concerned, I recall facts pertaining to counts he was convicted of. The first one was referenced in course of trial by the helpful shorthand, 1-2-3 Maybo. Because the command, 1-2-3 Maybo, had been seemingly constructed by the defendant and certainly if not constructed by him, developed by him, into a command that the patient was trained to respond to, by way of lying on the floor in anticipation of, I suppose, in the ordinary and proper course of things, complying with a lawful restraint. The defendant was using the command at wholly unnecessary times.

MrK: Yes I accept that, it wasn’t his invention, it arose from various parts of the training relating to restraint

HHJ: It may have been, I don’t remember us having any evidence on this point. It may have been a shorthand legitimately used to try and ensure cooperation from a person being restrained. It may have been, I’m not convinced about that.

MrK: One of the things, sadly, very much needed in context was there was restraint, a lot. The acronym comes from that.

HHJ: Yes, maybo was the restraint training

MrK: I wouldn’t want you to be putting this was something he invented, these were phrases in use, an acronym used in regards restraint.

HHJ: The acronym was used to refer to restraint. Whether the words 1-2-3 Maybo were used in restraint, I’m far from sure. Heard no evidence of that. If you want to … was legitimate instruction taken by defendant might need to hear evidence about that?

MrK: It was clearly taken out of context, he was embarrassed when he gave his evidence, it shouldn’t have happened… important thing to remember in this case is this, this was a specific, very short period, couple of minutes, there was no physical force used.

HHJ: No, but was simulation of an assault.

MrK: There was a simulation, I accept that.

Mr Knox told the court that Ryan Fuller very much regrets it and he had accepted right throughout the case that it was unsatisfactory. Mr Knox referred to the counts where Ryan Fuller had been convicted as “very unattractive episodes”.

He said they were two very short, very specific episodes. He said there was a degree of seriousness and that these offences were serious “because of what they are rather than any aggravation under Section 66”.

Mr Knox said that it would be difficult for HHJ Smith to put any harm on either of the patients by the two offences on which Ryan Fuller was convicted.

HHJ: There is some harm from each of these offences isn’t there?

MrK: Not in my submission the long term harm you’ve heard about

HHJ: It is impossible for me to say or conclude that the overall effects seen by the medical staff, those responsible for the care, or the families of the victims here, it’s impossible for me to say that that can be ascribed to these individual offences.

There’s one reason I suppose why that might be, as a consequence of these offences Whorlton Hall was closed down was it not?

MrK: It was

HHJ: So each of the victims, and indeed others, had to be rehomed, there’s an impact from that I suppose.

MrK: There’s impact, there were criticism [can’t hear] it is the case in those victim impact statements there are references to more unsatisfactory environments [can’t hear].

You will I think accept the material issues in that the establishment were not criticised. It appears to have been clean… the material position was well enough provided for, that was accepted by CQC in various reports you saw, what is unfortunately the case, comes through in victim impact statements,, the regime was very, very limited in what patients could do, in my respectful submission… you’ve taken Mr Constantine to task about training, I submit what you had here is this regime, is important, how day room episode, there was no purposeful activity…. When they went to live in different circumstances was much more, here was very little in way of constructive activity, all video you saw, video footage of no meaningful activity for the patients / residents to do.

My client was inexperienced in this sense, he was inexperienced and trying to pleasantly interact ?? he started as an 18 year old, had very little induction training, thereafter he was advanced but was still only 21, he certainly had no professional training. Phrase used about maybo episode he was unprofessional, this was professional…

HHJ: You say he was 21, he was 23

Mr Knox agrees

Mr Knox tells the court that the probation officer in the pre-sentence report explains how he came to be involved. “He never intended to harm people he was looking after”.

MrK: Pre-sentence report reflects very well on him, not a young person with any criminal history at all. When he lost his employment… you’ve seen references from those he works with, what he does, and managed to put his life back on track. That’s set out in pre-sentence report and references, show him very much to be well respected, well thought of, well loved member of extended big family whose working hard and doing something useful.

Mr Knox said that members of the public had already imparted “a degree of punishment” on Ryan Fuller, and he said that the custody threshold has now subsided. Mr Knox checked that HHJ Smith had all the relevant documents for his client.

HHJ: A lot of documents in this case, pre-sentence reports, documents such as one you refer to, make it plain how proceedings like this impact on defendants, that is part of the information I have to balance. Those in, members of the general public reading newspaper reports don’t have access to all the information, not a criticism of reports made of court proceedings, always done in good faith. The press don’t have access to all the information, certainly not the detail that the advocates and court might have.

Mr Knox said Mr Fuller was in a position where he was never likely to offend again, and that he would not work in care again.

John Sanderson

Mr Dryden starts by telling the court his client was convicted of a single offence of ill-treating a patient, Patient 4. He said that he had no previous convictions and that the pre-sentence report was “a very positive document in some respects”.

He asked that the court take into account John Sanderson’s relative youth and immaturity at the time of these offences.

MrD: He was 21 years old at the time.

Effectively this was his first job in paid employment. I don’t think he’d suggest was done for any vocational reasons, it was done because it was the only work in the area.

For the vast majority of 2018 Mr Sanderson was off work because he’d been injured by two of the residents, quite seriously, and spent many months recuperating.

In terms of what experience or training was or wasn’t available, he didn’t have any chance to access it.

In any event he wasn’t mature enough, emotionally mature enough and physically mature enough to deal with the type of resident at Whorlton Hall. In the defence submission he was very much left to sink or swim and he certainly didn’t swim.

If there was a toxic environment it wasn’t instigated by him, he was one of the most junior members of the team, he was a healthcare assistant.

Mr Dryden said it is conceded that threats were made by John Sanderson, but there was “no physical assault on Patient 4, however unpleasant the circumstances were”.

Mr Dryden told the court, that was the extent of Mr Sanderson’s offending, five years ago.

MrD: In terms of personal mitigation, these proceedings, and his conviction generally, has had a fairly serious effect on him and his family.

He lives in a fairly small community in County Durham, effectively he’s been vilified by the local community and disowned by his father’s side of the family.

Even recently his house has been attacked, there has been damage to his belongings and his car.

The position is now he appears to be fairly socially isolated. He doesn’t go out and feels everyone knows what he’s convicted of and supposed to have done. He doesn’t go on social media.

Because of publicity surrounding this case have been a number of job opportunities that haven’t borne fruition [?? Can’t hear] … finds himself at 26, effectively isolated, living at home with his mother, ostracised by his family and wider community.

This has had already a very, real pressure on his life.

You’ve seen the section on his mental health, he is currently on antidepressants as a result of these proceedings, has had a very real effect upon him.

Mr Dryden said that he agreed with previous submissions that all the cases in his submission were more serious than this case, and all involved physical contact between service users and defendants. He said that there was a simple question, if this case crossed the custody threshold, did the sentence have to be custodial or could it be suspended.

Mr Dryden mentioned the delay given John Sanderson was convicted in April last year and said looking at the guideline he thought it may be possible to avoid an immediate custodial sentence. He concluded by stating given the age of his client at the time of the offence, because he has not offended since 2019, because of the environment at Whorlton Hall that he simply was not equipped to deal with, and because he had inadequate training and had been assaulted twice, it did not warrant a custodial sentence.

At this point, court was adjourned for a short break as HHJ Smith finalised his sentencing remarks, which I’ll report in another post.