Sentencing After Mixed Verdicts: Acquittal Does Not Preclude a Consistent Finding of Victim Vulnerability

Case: R v Bussey [2025] EWCA Crim 1874

Court: Court of Appeal (Criminal Division)

Date: 2 September 2025

Judges: Lord Justice Popplewell, Mr Justice Soole and Mr Justice Bryan

Introduction

This appeal concerned sentences imposed for assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861 and breach of a non-molestation order under section 42A of the Family Law Act 1996.

The appellant assaulted his spouse in their home while her young daughter was present. The jury convicted him of assault occasioning actual bodily harm but acquitted him of intentional suffocation under section 75A of the Serious Crime Act 2015. After a non-molestation order prohibited contact, the appellant nevertheless sent persistent communications to the complainant. He pleaded guilty to that breach.

The Crown Court imposed 14 months’ imprisonment for the assault and a consecutive three months for breach of the order, producing a total term of 17 months. The principal questions on appeal were whether the sentencing judge had:

  • made a factual finding inconsistent with the acquittal on intentional suffocation;
  • mischaracterised the purpose and harm of the communications; and
  • wrongly refused to suspend the custodial sentence.

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.

Complex Concepts Simplified

Wrong in principle
A sentence is wrong in principle where the judge has applied an incorrect legal approach, relied on an impermissible consideration or failed to apply a relevant sentencing rule.
Manifestly excessive
It is not enough that the appellate court might have selected a different sentence. The sentence must fall outside the range reasonably available to the trial judge.
Category 2A
A guideline classification combining high culpability (“A”) with category 2 harm. It determines a starting point and sentencing range before aggravating and mitigating factors are considered.
Consecutive sentence
A sentence served after another sentence rather than at the same time. It is commonly used where offences involve distinct criminality, subject to the overall sentence remaining proportionate.
Suspended sentence
A custodial sentence that is not activated immediately, provided the offender complies with specified requirements and commits no further offence during the operational period.
OGRS and RSR
Statistical tools estimating the likelihood of general reconviction and serious reoffending. They assist sentencing but do not replace an individualised professional assessment of risk and harm.

Potential Impact

  • Mixed verdicts: Sentencing judges may find facts that coexist logically with an acquittal, but may not adopt a basis that contradicts the jury’s verdict.
  • Domestic-abuse orders: Non-threatening or affectionate messages may still cause serious harm when they form part of coercive, controlling or manipulative conduct.
  • Prosecution concessions: The court retains responsibility for guideline categorisation and is not bound by the Crown’s assessment.
  • Risk assessment: Low statistical reconviction scores may be outweighed by case-specific evidence of risk to an identified victim or the public.
  • Suspension: Strong personal mitigation does not compel suspension where there is little insight, limited victim empathy and a substantial need for punishment and protection.

Conclusion

R v Bussey confirms a context-sensitive approach to sentencing. The acquittal on intentional suffocation did not prevent a consistent finding that the complainant lost consciousness. Communications breaching a protective order could properly be treated as manipulative despite their superficially affectionate wording, and statistical indications of low reoffending risk did not override the Probation Service’s individualised assessment.

The central lesson is that sentencing courts must evaluate conduct in its full domestic-abuse context. On the facts, the 17-month aggregate term and the refusal to suspend it were neither wrong in principle nor manifestly excessive.