Sentencing remarks by The Hon Mrs Justice Ellenbogen DBE: R -v- Ali Zain
In the Crown Court at Manchester
17 May 2022
Before:
The Hon Mrs Justice Ellenbogen DBE
Between:
The Queen
-v-
Ali Zain
Sentencing remarks by The Hon Mrs Justice Ellenbogen DBE
Ali Zain, you may remain seated for now.
1. You have been convicted by a jury of the murder of your 10-month old daughter, Aiman Abbas Toor, and it is now my duty to sentence you for that crime.
2. On 1 November 2019, you took the life of a much-loved little girl, the first child of you and your wife, Sahar, and the first grandchild of your wife’s parents, with whom she would stay and who looked after her for a great deal of the time. By your actions, not only have you deprived Aiman of her life, but you have deprived her mother, grandparents and wider family of the great joy which she so obviously brought them, and ought to have brought them for many years to come.
The facts
3. You had returned from work shortly before 2:30 in the afternoon of 1 November. You were tired and wanted to sleep, having had an early start to the day. Your wife had been due to leave for work at around the same time and you had anticipated that Aiman would be staying at her grandparents’ house that afternoon. When you arrived home, however, Aiman’s grandmother, Rehana, had been outside in her car, with a sleepy Aiman, intending to leave her with you and to collect her at about six o’ clock that evening. She was not to have the opportunity to do so.
4. Only you know exactly what happened between 2:30 and your 999 call, just over three hours later that afternoon. On the account which you gave at trial, which, by its verdict, the jury has rejected, you fell asleep alongside Aiman on your own bed, were woken by her crying some time later and, in an attempt to stop her crying, placed a blanket, or quilt, over her mouth for up to two minutes, tapping it with the fingers of your non-dominant hand, accidentally asphyxiating her whilst, as you would have it, ‘in sleeping state’.
5. All of the expert medical evidence given in the course of your trial, including that of the consultant forensic pathologist called by the Defence, Dr Alison Armour, was inconsistent with that account. All of the experts were agreed that your daughter had died from asphyxia involving, at least, the blockage of her nose and mouth; the only distinction of significance between them being whether that action had been accompanied by some form of compressive force applied to her chest or neck. In the absence of such force, the evidence was that Aiman’s nose and mouth would have had to have been blocked, under pressure, for a prolonged period. Dr Naomi Carter and Dr Armour, both highly experienced forensic pathologists, each remarked on the profusion of petechiae — pinpoint spots — on Aiman’s face and neck, the result of a rise in venous pressure in those areas, to an extent which neither had seen before in an infant child. You deliberately deprived your daughter of the oxygen which she needed to breathe. As the expert evidence made clear, at 10 months of age Aiman would have struggled and resisted your actions, before, eventually, losing consciousness and, ultimately, her life. This was no accident, nor was it a transient act. It was also not the only abusive act which Aiman had been forced to endure in her short life.
6. It was not in dispute that, at some point in the two to five-day period prior to her death, Aiman had sustained partial posterior fractures to seven of her ribs, in a location which could only be explained by non-accidental injury, in the form of chest compression which had included the forceful side-to-side squeezing of her rib cage. Professor David Mangham, consultant histopathologist, gave evidence that the nature and location of those fractures would not necessarily have caused Aiman to experience pain in the ensuing days and it may be for that reason that her mother and grandparents had not observed her to be in apparent distress during that period. Whilst you asserted that you had not been alone with Aiman throughout the period identified, such injuries were capable of being inflicted in a very short space of time, whether or not at your own home. Having heard the evidence in your trial, I am satisfied, to the criminal standard (being the standard applied to all of my findings of fact), that it was you who inflicted those injuries to Aiman — it is simply not credible that an abusive injury of that nature had been inflicted by a third party, just days before you murdered your daughter.
7. From the time of Aiman’s death, you have persistently lied to your family; paramedics; hospital clinicians; the police and the jury as to the cause of Aiman’s death. You first concocted an account that, whilst carrying Aiman, you had slipped and fallen down the stairs, later changing that account to assert that you had fallen asleep whilst lying very close to her on the bed, suggestive of so-called ‘overlaying’, or accidental smothering. At trial, you advanced the third variation, which I have previously summarised. Each of those accounts was false, intended to conceal, and protect you from the consequences of, the deliberate act which you had perpetrated, and to accord, so far as possible, with the medical evidence, as it developed. Contrary to your position at trial, I am satisfied that no part of the explanation for your protracted lies to the police was your fear of abusive treatment by them — as you acknowledged under cross-examination, they had treated you appropriately throughout. You told the jury that you had seen evidence of police brutality in Pakistan. I make clear that I make no finding as to the justification for that assertion and, whatever your understanding of the way in which the police in that country conduct themselves, your father-in-law had told you, on more than one occasion, that you would be treated fairly and appropriately in the UK and of the importance of giving a truthful account.
Victim Impact
8. The devastation which Aiman’s death has caused to her mother and maternal grandparents is plain. Amongst the video-recorded police interviews played in the course of your trial was your wife’s first interview, conducted the day after Aiman’s death. Her grief and the depth of the loss which she felt were heart-breaking to watch. Your mother and father-in-law, who had welcomed you into their home; treated you as their own son, with such generosity; and been so delighted to have a grand-daughter, on whom they clearly doted, have also been deeply affected by your actions and the pain which you have caused to their daughter, as was clear from their evidence. You have denied your own parents, living in Pakistan, the opportunity to meet and have a relationship with their grand-daughter.
Sentence
9. You are now 25 years of age and were 22 at the time of your offence. There is only one sentence for murder which the law allows me to pass, being a mandatory sentence of life imprisonment. However, I am required to specify the minimum term, pursuant to section 322 of, and Schedule 21 to, the Sentencing Act 2020, which you must serve before you can be released on licence.
10. In order to do so, I must first consider the seriousness of your offending. I am satisfied that, as counsel agree, the appropriate starting point is that specified by paragraph 5 of Schedule 21, namely 15 years. Having selected that starting point, paragraph 7 of Schedule 21 requires me to take into account any aggravating and mitigating factors in your case.
11. Statutory aggravating factors relevant to your offence, set out at paragraph 9 of Schedule 21, are Aiman’s particular vulnerability, given her very young age, and your abuse of a position of trust as her father, in whose care she had been left. In this case, I regard each such factor as being the corollary of the other and I do not double-count them. A further aggravating factor is the physical suffering which you inflicted upon Aiman in the few days prior to her death, in the form of her seven fractured ribs.
12. In accordance with paragraph 10 of Schedule 21, I turn to consider any relevant mitigating factors. I accept that your crime was not premeditated and am satisfied that it resulted from a loss of temper, when Aiman’s insistent crying precluded your ability to sleep. I also accept the submission made on your behalf, by Mr Nawaz QC, that your intention was to cause serious bodily harm, rather than to kill. I bear in mind your age and lack of previous convictions. Consistent with your persistent advancing of different false accounts of the circumstances of Aiman’s death, I consider that such remorse as you have manifested during your trial is for the fact that you find yourself facing the inevitable consequences of the brutal, deliberate actions by which you deprived your baby daughter of her life, from which it follows that I do not consider it to be an additional mitigating factor (though I make clear that I have not treated your various dishonest accounts as an aggravating factor).
13. Having regard to all of the aggravating and mitigating factors to which I have referred, I have concluded that the appropriate minimum term in your case is 17 years and six months.
Stand up, please, Mr Zain.
14. For the murder of Aiman Abbas Toor, I sentence you to life imprisonment. The minimum term which you will serve is one of 17 years and six months. I emphasise, to you and to the public, that a minimum term is just that; a minimum period which cannot be reduced, to any extent.
15. There is no guarantee that you will be released after you have served seventeen and a half years, or at any time thereafter. If, after that minimum term, the Parole Board determines that you are fit to be released, you will be released. If and when that happens, you will remain subject to licence for the rest of your life, meaning that you may be recalled, to continue your life sentence, if you re-offend or otherwise breach the conditions of your licence. Those are the ways in which a life sentence protects the public for the future.
16. You will receive credit for the 271 days during which you have been remanded in custody.
17. The statutory surcharge will be imposed.
Go with the dock officer, please.