Date: Jun 27, 2026

Brief Neck Compression in Assault by Penetration: Category 2B Harm and Dangerousness Justifying an Extended Sentence

1. Introduction

In R v Smith [2026] EWCA Crim 915, the Court of Appeal (Criminal Division) (Lord Justice Dove, Mrs Justice Cutts DBE, and His Honour Judge Chambers KC sitting as a Judge of the Court of Appeal) refused a renewed application for leave to appeal against sentence.

The applicant had pleaded guilty (on re-arraignment, on the morning of trial) to: assault by penetration (Sexual Offences Act 2003, s.2) and assault occasioning actual bodily harm (Offences against the Person Act 1861, s.47), and later (again on the morning of trial) to criminal damage (Criminal Damage Act 1971, s.1(1)) and possession of an article with a blade or point (Criminal Justice Act 1988, s.139(1)).

The complainant (the victim of the sexual offence) was entitled to lifelong anonymity under the Sexual Offences (Amendment) Act 1992.

The key issues were whether the sentencing judge: (i) mis-categorised the assault by penetration under the relevant guideline (Category 2B rather than 3B), (ii) gave insufficient allowance for totality given an earlier Crown Court sentence for other offending, and (iii) was wrong to find the applicant dangerous and impose an extended sentence.

2. Summary of the Judgment

The Court held the judge was entitled (and correct) to categorise the assault by penetration as Category 2B because squeezing the victim’s neck, even briefly, was violence beyond that inherent in the offence.
The Court rejected the submission that the four-year custodial term (within a seven-year extended sentence comprising four years’ custody and three years’ extended licence) was manifestly excessive.
The Court found it unarguable that the judge erred on dangerousness, given the applicant’s pattern of abuse across partners and the fact rehabilitative progress in custody had not yet been tested in the community.
The Court upheld the judge’s approach to totality, noting she had made adequate allowance by ordering concurrency for offences that would otherwise have been consecutive.
Leave to appeal against sentence was refused.

3. Analysis

3.1 Precedents Cited

The judgment did not cite prior appellate authorities by case name. Instead, the Court’s reasoning was anchored in:

the relevant Sentencing Council guideline frameworks for (i) assault by penetration, (ii) assault occasioning actual bodily harm, and (iii) possession of a bladed article; and
established sentencing principles, particularly totality and the statutory regime enabling extended sentences where dangerousness is found.

Accordingly, the decision functions less as an authority “by citation” and more as a practical appellate endorsement of how to apply guideline categories and dangerousness assessment to facts involving brief strangulation/neck compression within a domestic setting.

3.2 Legal Reasoning

A. Guideline categorisation: Category 2B vs 3B for assault by penetration

The applicant’s principal complaint was that the judge selected too severe a guideline category for the assault by penetration. The Court of Appeal rejected the argument that the violence was not “beyond that inherent” because the neck hold was brief.

The Court treated neck squeezing as qualitatively serious: even short-lived compression can rapidly create fear of death and real danger. On that basis, the Court agreed the offence fell within Category 2 harm, supporting a Category 2B placement, with the judge’s starting point and range approach (starting point six years; range four to nine) treated as sound.

Importantly, the Court added an alternative analysis: even if the lower category (3B) had applied, the neck assault would have pushed the sentence towards the top of that range. This strengthened the conclusion that the ultimate custodial term was not arguably excessive.

B. Mitigation, basis of plea, and guilty plea credit

The Court endorsed the judge’s handling of mitigation (including a difficult background and meaningful custodial work) and her acceptance of the basis of plea—but it agreed that any additional reduction was “limited” because the “seriousness of the offence was in the violation itself, rather than how long it lasted.”

As to plea credit, the judge allowed 10%, reflecting the fact the guilty pleas were entered on the morning of trial after re-arraignment. The Court did not identify any error of principle in that approach.

C. Totality and interaction with an earlier Crown Court sentence

The applicant argued the judge did not sufficiently apply totality given he had already been sentenced (at Durham Crown Court) to substantial consecutive terms for controlling/coercive behaviour and perverting the course of justice, with overlapping timeframes and continued custody.

The Court emphasised that the judge expressly grappled with the counterfactual—what would have happened if all offences had been sentenced together— and then implemented an allowance by ordering concurrency for the bladed article and criminal damage offences, which she said would otherwise properly have been consecutive.

The Court held this was a sufficient, explained, and principled application of totality on the facts.

D. Dangerousness and the extended sentence

The Court rejected the submission that a community-management proposal undermined dangerousness. It agreed with the judge that the applicant’s pattern of offending against multiple intimate partners, and a professional assessment of high risk of serious harm, supported the conclusion that an extended licence period was necessary for public protection.

The Court’s reasoning highlights a recurring sentencing theme: genuine rehabilitative engagement in custody is relevant mitigation, but it does not necessarily answer the public protection question where risk remains untested in the community, particularly in the context (here) of relationship breakdown and conflict triggers.

3.3 Impact

Guideline application in sexual offences: The decision reinforces that brief neck compression can still amount to violence “beyond that inherent” in an assault by penetration, justifying placement in a higher harm category.
Domestic context as aggravation: The Court endorsed aggravating weight for offending in a domestic relationship and in the victim’s home, especially where control and intimidation are features.
Dangerousness despite progress in custody: Appellate approval was given to treating custodial progress as important but not decisive where there is a demonstrated pattern of partner-directed abuse and continuing high-risk assessment.
Totality as a practical exercise: The case illustrates an accepted mechanism for totality where separate proceedings have produced substantial prior sentences: making otherwise consecutive sentences concurrent to avoid disproportionate accumulation.

4. Complex Concepts Simplified

Category 2B / 3B (sentencing guidelines): Guideline “categories” combine (i) harm and (ii) culpability to yield a starting point and range. Here, the dispute was whether the violence (neck squeezing) elevated harm to Category 2 because it went beyond what is inherent in the offence itself.
“Beyond that inherent in the offence”: Many offences involve some level of force. Extra violence—such as strangulation-like neck compression—can be treated as an additional feature that increases seriousness, even if it is brief.
Basis of plea: A written factual basis on which a guilty plea is entered and accepted. It may limit or clarify facts for sentencing, but does not automatically generate a large sentence reduction if it does not materially reduce the core seriousness.
Totality: A principle requiring the overall sentence to be just and proportionate when multiple offences (or multiple sets of proceedings) are involved, avoiding an unduly crushing overall term.
Dangerousness and extended sentence: Where an offender poses a significant risk of serious harm, the court may impose an extended sentence so that, after release, the offender is subject to a longer licence period, enabling supervision and recall for public protection.

5. Conclusion

[2026] EWCA Crim 915 confirms that brief neck squeezing during an assault by penetration can properly be treated as violence beyond what is inherent in the offence, supporting a higher guideline categorisation and a substantial custodial term. It also illustrates an appellate reluctance to disturb a carefully reasoned sentencing exercise on totality and dangerousness, particularly where there is a demonstrated pattern of intimate-partner abuse and the offender’s rehabilitative progress remains untested outside custody.