Da Silva, R. v

Factual and Procedural Background

This opinion concerns an application for leave to refer a sentence considered unduly lenient by His Majesty's Solicitor General. The Defendant, a 35-year-old man of previous good character, was charged with multiple offences including two counts of assault occasioning actual bodily harm, one count of intentional strangulation, one count of making a threat to kill, and one count of controlling or coercive behaviour in an intimate or family relationship.

The Defendant initially pleaded not guilty in October 2022, with a trial date set for February 2023, later adjourned to August 2023. In August 2023, the Defendant pleaded guilty to all counts. On 28 September 2023, the Crown Court imposed a community order of 18 months concurrent on all counts, including requirements for alcohol abstinence and monitoring, rehabilitation activity, and unpaid work.

The Solicitor General submitted that the sentence was unduly lenient, arguing the strangulation offence warranted immediate custody with a starting point of 18 months, and that the aggregate sentence should have exceeded 24 months. The Defendant's representatives contended the sentence was not unduly lenient, citing genuine remorse, insight into relationship difficulties, early custody equivalent to three months imprisonment, and positive engagement with probation.

Factual background reveals the Defendant and the victim began a relationship in August 2021, during which the Defendant exercised controlling and coercive behaviour, including isolating the victim and monitoring social media. Physical violence began in March 2022 with assaults causing bodily harm, including attempts to gouge the victim’s eyes and strangulation attempts. The victim did not initially report the abuse to police but did so in August 2022 after further violent incidents involving threats to kill and physical assaults causing significant injuries.

The victim sustained physical injuries and psychological harm, including anxiety, panic attacks, and suicidal thoughts, requiring counselling and medication. The Defendant denied offences in interview but accepted facts in the pre-sentence report, showing remorse but limited insight. The probation report assessed a medium risk of harm to future partners but recommended a community order to manage the risk and preserve the Defendant’s employment and housing.

The sentencing judge followed these recommendations, imposing a non-custodial community order based on the Defendant’s good character, guilty plea, and genuine remorse, despite the seriousness of the offences and relevant sentencing guidelines.

Legal Issues Presented

1. Whether the sentence imposed on the Defendant was unduly lenient.
2. The appropriate sentence for the offences, considering aggravating and mitigating factors and sentencing guidelines.
3. Whether a custodial sentence should be immediate or suspended.

Arguments of the Parties

Solicitor General's Arguments

• The sentence was unduly lenient given the serious nature of the strangulation offence, which merited a starting point of 18 months custody.
• The Defendant’s guilty plea was late, reducing the scope for mitigation.
• The Defendant should have received an immediate custodial sentence, with the aggregate sentence exceeding 24 months.

Defendant's Arguments

• Although lenient, the sentence was not unduly lenient.
• The judge was entitled to give a greater credit for the guilty plea than the prosecution suggested.
• The Defendant showed genuine remorse and insight into relationship difficulties.
• The Defendant had already served custody equivalent to three months imprisonment before sentencing.
• The Defendant positively engaged with the community order and sought therapy.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the sentencing judge’s view that the case was exceptional and justified a community order. However, the court emphasized that sentencing guidelines must be applied unless it is in the interests of justice not to do so, and no such finding was made by the sentencing judge.

The court found that a community order did not sufficiently restrict the Defendant’s liberty given the seriousness and nature of the offences. Considering the totality of offending and aggravating factors, a starting sentence of 33 months was appropriate before mitigation.

Mitigating factors, including the Defendant’s good character, remorse, and plea, justified an eight-month reduction, lowering the sentence to 25 months. A further reduction of 12% for the plea (a late plea) resulted in a final sentence of 22 months imprisonment.

The court then considered whether the sentence should be suspended. Factors against suspension included the Defendant’s risk to the public and the need for immediate custody to achieve appropriate punishment. Factors in favour included the Defendant’s progress in rehabilitation, strong personal mitigation, and the fact that immediate custody would not cause significant harm to others.

The court weighed the Defendant’s previous custody equivalent to three months imprisonment and positive engagement with probation, concluding that suspension was appropriate in all circumstances.

Accordingly, the court quashed the community order and imposed a suspended custodial sentence of 22 months with the original community order requirements attached, concurrent on all counts.

Holding and Implications

The court granted leave to refer the sentence and held that the original community order was unduly lenient.

The court’s final decision was to quash the community order and impose a sentence of 22 months’ imprisonment, suspended for two years, with the same requirements as before (alcohol abstinence and monitoring for 30 days, rehabilitation activity for 30 days, and 120 hours unpaid work), concurrent on all counts.

This decision directly affects the Defendant by substituting a suspended custodial sentence for the community order, reinforcing the principle that sentencing guidelines must be observed unless compelling reasons justify deviation. No new precedent was established beyond affirming the application of the guidelines and the approach to suspending sentences in similar circumstances.