England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
(MISS RECORDER SADD [T20221645])

		Royal Courts of Justice The Strand London WC2A 2LL
		12 September 2024

Thursday 12 September 2024

LORD JUSTICE HOLROYDE: I shall ask Mr Justice Holgate to give the judgment of the court.

MR JUSTICE HOLGATE:

1. On 6 December 2023, in the Crown Court at Snaresbrook before Her Honour Judge Canavan, the appellant pleaded guilty to having inflicted grievous bodily harm on 6 November 2022, contrary to section 20 of the Offences against the Person Act 1861. On 27 December 2023 he pleaded guilty in the Magistrates' Court to having committed on 25 December an assault occasioning actual bodily harm, contrary to section 47 of the 1861 Act; intentional strangulation, contrary to section 75A(1)(a) and (5) of the Serious Crime Act 2015; and common assault of an emergency worker. He was committed to the Crown Court for sentence.
2. On 26 February 2004, in the Crown Court at Snaresbrook, the appellant was sentenced by Miss Recorder Sadd to a total term of 4 years 2 months' imprisonment, made up as follows: 32 months' imprisonment for the intentional strangulation; 12 months for the section 47 offence; and 4 weeks for the common assault of an emergency worker, all to run concurrently with each other; and a consecutive term of 18 months' imprisonment for the section 20 offence. He now appeals against sentence with the leave of the single judge.
3. The appellant and the victim, Leanne Bass, were in a relationship. On 4 November 2022 they had spent the night at her home address. During the evening the appellant had mentioned his ex-girlfriend. After 1.30 am, when the appellant had fallen asleep, Miss Bass checked his mobile telephone to see if he had been cheating on her. As a result of what she discovered, she slapped the appellant to wake him up and told him to leave the property. He left and she closed the door. He then kicked the door and said he wanted his bike. Miss Bass grabbed a dumbbell and threatened to use it against the appellant if he came through the door. When he became quiet, she dropped the dumbbell. The appellant then burst in. He grabbed the dumbbell and the metal leg of a chair he had just broken. He demanded his mobile telephone. Miss Bass ended up on the floor. The appellant was on top of her, holding down her arms and trying to search her. She scratched him as she tried to get free. In response, the appellant bit her finger. He then picked up the dumbbell and struck her in the eye with it, causing a great deal of pain. He then got up, took his bike, and left.
4. Miss Bass sustained a severe black, bloodshot eye, bruises to the chin, a bite mark to a finger, scratches on her back and leg and bruising to her upper arms.
5. On 25 December 2023 police went to the home of Miss Bass in response to a telephone call from a neighbour. She had been assaulted by the appellant. At the time he was on bail in relation to the section 20 assault, with a condition not to contact her. Miss Bass had dried blood on her legs, arms, and hands. There was a cut to her forehead and left thigh. She told police officers that the appellant had spent the day at her flat and that they had drunk vodka together. They argued after Miss Bass had woken the appellant up. When she asked him to leave, the appellant assaulted her by punching and kicking her, and then strangling her. She felt as if she was going to die. When Miss Bass managed to get the appellant off her, he began to smash up the flat. She fled to a neighbour on the floor below for help.
6. When police entered the flat, they saw that it had been trashed. They found the appellant inside. He was verbally abusive. He stamped on officers' feet and kicked at them as they tried to take him to the police van.
7. There was no Victim Personal Statement from Miss Bass.
8. The appellant was aged 31. He had 14 convictions for 38 offences spanning from February 2010 to August 2022. His relevant convictions included two offences of assault of a constable; disorderly behaviour likely to cause harassment, alarm, or distress in 2010, 2013 and 2020; three assaults occasioning actual bodily harm in 2012 and 2021; four offences of battery in 2020; assault by bearing of an emergency worker in 2020; and possession of a prohibited weapon for discharge of a noxious liquid int 2021.
9. According to the pre-sentence report, the appellant accepted that he had no excuse for being in Miss Bass' home. He accepted that he had done wrong and the full consequences of his behaviour. He realised how serious it was and was remorseful for having attacked Miss Bass. He said that he had been diagnosed with emotional unstable personality disorder and ADHD. He had had a difficult upbringing. He had been abandoned by his father when he was 2 and by his mother when he was 10.
10. The author of the report said that the assaults on Miss Bass represented an escalation in the appellant's behaviour, but he appeared to be genuinely sorry for his offending. He was assessed as posing a medium risk of re-offending over two years, but a high risk of further domestic abuse and a high risk of serious harm to known persons.
11. In her sentencing remarks, the Recorder said that the section 20 offence involved medium culpability category B and harm category 3. The starting point was 12 months' custody, within a range from a high-level community order to 24 months' custody. The offence was aggravated by the domestic context, and it took place in the home of Miss Bass.
12. The section 47 offence was said to involve high culpability, because strangulation was involved, and category 2 harm, with a starting point of 36 weeks' custody, within a range from a high-level community order to 18 months' custody.
13. The judge said that there were no sentencing guidelines for intentional strangulation, but she had regard to R v Cook [2023] EWCA Crim 452. The starting point was 18 months' custody. But there were significant aggravating features: the previous offences of violence; the domestic context; and the offence was committed on bail and in breach of a condition not to contact Miss Bass.
14. The Recorder had regard to mitigating features, including the appellant's remorse and his mental health issues. In relation to the guilty pleas, the Recorder said that she would allow 25 per cent credit for the section 20 offence and one third for the three offences committed in 2023. The Recorder said that she would pass consecutive sentences for the incidents in 2022 and 2023, whilst taking into account the principle of totality. She then imposed the sentences to which we have referred.
15. We are grateful to Mr Ian Dear for his clear and succinct written and oral submissions. He says that the appellant takes no issue with the Recorder's categorisation of the offences under the relevant guidelines, the credits allowed for the guilty pleas, or the principle of imposing a consecutive sentence for the offence in 2022. However, he submits that the sentence imposed for the intentional strangulation was equivalent to 48 months' imprisonment after a trial. He submits that the Recorder erred in adding 30 months to the starting point of 18 months in Cook for that offence. He says that the sentences imposed made no allowance for the mitigating factors accepted by the Recorder or for totality. This resulted in an overall sentence of 50 months' imprisonment, which was manifestly excessive.

Discussion

16. We begin by clarifying one point. Although the judge said that the section 47 offence fell within category 2A, she in fact applied the starting point and sentencing range appropriate for category 2B – 36 weeks, within a range of a high-level community order to 18 months' custody. We think that it was preferable to treat that offence as falling within category 2B rather than 2A, to avoid any suggestion of double counting the strangulation, which was the subject of a separate count and was the lead offence. The judge was then entitled to assess the section 47 offence as lying at the top of the range for category 2B, before giving full credit for the guilty plea, to arrive at 12 months' imprisonment.
17. No complaint is or could be made about the sentence of 4 weeks' imprisonment for the assault of an emergency worker. Indeed, subject to totality, a consecutive sentence could have been justified.
18. Each of the assaults on Miss Bass involved domestic abuse, as explained in the definitive guideline. That was a serious aggravating factor, separate from and additional to the fact that the victim was attacked in her own home.
19. The sentencing in this case could have been structured in more than one way. Our primary task is to consider whether the overall sentence was manifestly excessive. But in addressing that issue we have considered the individual sentences imposed.
20. Cook explained the serious nature of the offence of intentional strangulation, including its harmful effects on victims. Here Miss Bass felt as if she was going to die. She was in considerable distress afterwards. There were other aggravating features: the attack took place in her home; there was abuse of power; the overall attack on Miss Bass was sustained; the appellant had assaulted her previously; he had committed other crimes of violence; the offending was committed whilst on bail for the 2022 assault and in breach of the court's specific condition for the protection of Miss Bass.
21. The concurrent sentences for the other offences committed on 25 December 2023 substantially aggravated the section 75A offence. Even taking the mitigation into account, we consider that the resulting sentence of 32 months' imprisonment for the section 75A offence was not manifestly excessive, although we do accept that it was severe.
22. A consecutive sentence for the section 20 offence was appropriate. Bearing in mind the domestic context, as well as totality and personal mitigation, we consider that the sentence of 18 months' imprisonment was not manifestly excessive.
23. Accordingly, the overall sentence of imprisonment in this case cannot be criticised as manifestly excessive. For these reasons the appeal must be dismissed.
__________________________