Summary of the Judgment
The Court of Appeal dismissed the appeal in its entirety. It held that both individual
sentences, their consecutive structure and the decision to order immediate custody were
justified.
Assault sentence
The sentencing judge was entitled to accept that the complainant had lost consciousness.
That finding was not inconsistent with the jury’s acquittal on intentional suffocation. In
any event, the vicious and sustained assault plainly fell within category 2A of the relevant
sentencing guideline. The domestic setting and the presence of a young child were significant
aggravating factors. Against an 18-month starting point, the 14-month sentence properly
reflected the appellant’s mitigation and was described as “unimpeachable”.
Breach of the non-molestation order
Although the messages were not overtly threatening or abusive, the judge could find that
their purpose was manipulative: they coincided with the complainant’s temporary retraction
of her allegation and were consistent with her later account of pressure and control. The
Crown’s proposed guideline categorisation did not bind the judge. A consecutive term of three
months was therefore justified.
Immediate rather than suspended custody
The appellant’s lack of remorse, insight and empathy substantially undermined the claimed
realistic prospect of rehabilitation. Statistical tools indicating a low risk of reconviction
carried limited weight when set against the Probation Service’s individualised assessment of
a high risk of harm to the complainant and a medium risk to the public. The judge was entitled
to conclude that appropriate punishment required immediate custody.
Analysis
1. Sentencing findings following an acquittal
The first ground raised the relationship between a jury’s acquittal and the facts that may
properly be used at sentence. A sentencing judge must respect the verdict and must not sentence
an offender on a factual basis that contradicts it. The Court nevertheless found no such
contradiction here.
Acquittal of intentional suffocation did not necessarily mean that the jury rejected every
part of the complainant’s evidence, including her loss of consciousness. It established only
that the prosecution had failed to prove all elements of that distinct offence beyond
reasonable doubt. Loss of consciousness and criminal liability for intentional suffocation
were not treated as legally or factually identical propositions.
The decision is therefore narrower than a general power to disregard an acquittal. Its
principle is that a judge may adopt a sentencing fact where that fact can rationally coexist
with the jury’s verdict. The judge must still avoid reconstructing the case on a basis which
effectively nullifies the acquittal.
2. Categorisation of the assault
The assault was placed in category 2A: high culpability and category 2 harm. High culpability
arose from the sustained nature of the attack and the vulnerability of a victim who was
unconscious during part of it. The guideline starting point was 18 months’ imprisonment, with
a range from 36 weeks to two years and six months.
The principal aggravating features were:
- the domestic-abuse context;
- the commission of the offence in the complainant’s home;
- the presence and distress of a young child; and
- the prolonged and serious character of the violence.
Mitigation included the absence of relevant or recent convictions, a positive employment
history and physical and mental-health difficulties. The reduction from the 18-month starting
point to 14 months demonstrated that these matters had been taken into account.
3. Harm caused by apparently affectionate communications
An important aspect of the judgment is its treatment of communications that appeared
innocuous when read in isolation. The absence of threats or abuse did not prevent the messages
from amounting to a deliberate and harmful breach. Their purpose and context were central.
The messaging occurred during 1–14 May 2024, culminating in the complainant’s initial
retraction on 14 May. Her later statements attributed that retraction to controlling and
manipulative conduct. The sentencing judge had also presided over the assault trial and was
entitled to draw on his assessment of the relationship.
The Court emphasised the guideline warning that, where breach of an order occurs against a
background of domestic abuse, the sentencer must not underestimate the harm involved. Control,
pressure and interference with a victim’s willingness to support proceedings may be harmful
even if individual messages use affectionate or non-threatening language.
4. The Crown’s sentencing position was not binding
The prosecution had suggested culpability category B and harm category 3. The Court confirmed
that this submission did not bind the sentencing judge. On the evidence, the judge could have
treated the harm as category 2. In any event, the category B3 range extended to 26 weeks’
imprisonment, so custody remained available even on the Crown’s proposed categorisation.
This reinforces the court’s independent responsibility to apply the sentencing guideline to
the facts it properly finds. A prosecution concession or sentencing note is relevant, but it
does not determine the sentence.
5. Consecutive sentence for the breach
The three-month term was properly consecutive because the breach represented distinct
criminality committed after the assault and in defiance of a court order. Its manipulative
purpose also related to the complainant’s participation in proceedings. A concurrent term
risked failing to reflect either the separate violation of the protective order or the
additional harm caused.
6. Suspension of imprisonment
The Court rejected the argument that the factors favouring suspension—particularly personal
mitigation and a realistic prospect of rehabilitation—outweighed the need for immediate
custody.
The decisive obstacle was not merely the appellant’s formal denial of the offence. The
Pre-sentence Report, his letter and the character evidence showed a broader absence of insight,
victim awareness and empathy. That evidence weakened the proposition that rehabilitation in
the community was realistically achievable.
The Court also distinguished between actuarial prediction and an individual risk assessment.
Low OGRS and RSR scores were statistical indicators of reconviction risk; they did not displace
the Probation Service’s assessment of the actual risks presented by this appellant. Nor did a
restraining order eliminate those risks merely because it provided an additional layer of
protection.
7. Precedents and authorities cited
The judgment did not cite any reported judicial precedents. Its reasoning was based principally
on the applicable statutory offences and the Sentencing Council guidelines, including:
- the assault occasioning actual bodily harm guideline;
- the guideline for breach of a non-molestation order; and
- the Definitive Guideline for the Imposition of Community and Custodial Sentences.
The decision therefore applies established sentencing principles rather than announcing a
broad new doctrine. Its precedential value lies in its practical application of those
principles to mixed verdicts, domestic-abuse breaches and decisions about suspended sentences.