WD, R. v

Factual and Procedural Background

The Appellant and the victim had been in a relationship for approximately two and a half years, which had ended prior to the events in question. On the night of 12/13 July 2022, the Appellant visited the victim's home around midnight demanding £50, during which he caused damage to the property and took personal items including the victim’s phone and handbag. The victim reported this to the police. Later that night, at approximately 3:40am, the Appellant returned, causing further damage and distress. Police apprehended him at the scene and noted extensive damage. The victim found knives near the bathroom door, which the Appellant initially denied moving but later claimed were to unlock the bathroom door. The Appellant admitted he wanted to see if another man was present in the house. The victim stated that the incident left her terrified.

The Appellant initially denied all charges but pleaded guilty on 7 September 2023 to three charges: burglary with intent to commit criminal damage (aggravated by domestic abuse), domestic abuse, and theft (also aggravated by domestic abuse). On 15 November 2023, the Appellant was sentenced by the trial judge to concurrent terms of imprisonment: 18 months for burglary, 27 months for domestic abuse, and 9 months for theft, with a suspended sentence for unrelated earlier offences activated. Half of each sentence was to be served in custody and half on licence. The Appellant appealed against the sentence on grounds of manifest excessiveness and errors in principle.

Legal Issues Presented

1. Whether the trial judge was correct in selecting the domestic abuse offence as the headline offence for sentencing.
2. Whether the judge erred by not selecting the burglary offence as the headline offence, given its domestic abuse aggravation and factual accuracy.
3. Whether the starting point for the domestic abuse offence was arbitrary, manifestly excessive, and unjustified, particularly given the limited nature of the domestic abuse element.
4. Whether the sentencing involved impermissible double counting of the domestic abuse aggravation across multiple charges.

Arguments of the Parties

Appellant's Arguments

• The judge was wrong to select the domestic abuse offence as the headline offence and failed to provide reasons for this choice.
• The burglary offence should have been the headline offence as it was already aggravated by domestic abuse and better encompassed the facts.
• The starting point for the domestic abuse offence was arbitrary, manifestly excessive, and failed to consider that the abuse was limited to this single incident rather than a sustained pattern.
• The judge failed to avoid double counting by imposing a lengthy sentence for the domestic abuse offence after already considering domestic abuse aggravation in other charges.

Appellee's (Crown's) Arguments

• The selection of the domestic abuse offence as the headline offence was appropriate given the underlying domestic abuse agenda motivating the offending.
• The appellant engaged in a course of abusive behaviour on two occasions that night, satisfying the statutory definition of domestic abuse.
• The starting point of three years for the domestic abuse offence was within the permissible sentencing range, considering the appellant’s significant criminal history and breach of suspended sentences.
• The statutory aggravator applies separately to the burglary and theft charges, reflecting the additional malice due to the personal connection, and does not constitute double counting when combined with the domestic abuse offence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the judge's discretion in selecting the headline offence, referencing established case law. It accepted that the domestic abuse offence best captured the underlying motive of the Appellant’s conduct, which was to check on the victim's personal relationships, thus constituting a domestic abuse agenda.

Regarding the statutory definition, the court noted that a "course of behaviour" requires at least two occasions, which the facts demonstrated through two separate incidents that night. The court rejected the Appellant’s argument that a sustained pattern was necessary, clarifying the statutory threshold.

The court found the starting point of three years for the domestic abuse offence appropriate and within the lower range of the maximum 14-year sentence. It considered the Appellant’s extensive prior convictions, including previous domestic incidents and breaches of suspended sentences, as justifying a less lenient approach.

On the double counting argument, the court explained that the statutory aggravator for domestic abuse applies separately to burglary and theft charges but cannot be applied to the domestic abuse offence itself. The aggravated burglary and theft charges reflect additional malice arising from the personal connection, warranting separate enhanced sentences. The court found no impermissible double counting, as the domestic abuse offence was sentenced on its own merits, and the aggravated charges were punished for their own distinct elements.

The court was satisfied that the sentencing judge properly applied the totality principle and that the sentence was within the permissible range given the facts and statutory framework.

Holding and Implications

The court DISMISSED the appeal against sentence.

The decision confirms that the selection of the domestic abuse offence as the headline offence is within judicial discretion when it appropriately reflects the underlying criminal conduct. It clarifies that the statutory domestic abuse aggravator can be applied separately to individual offences such as burglary and theft without amounting to double counting when a domestic abuse offence is also charged. The ruling affirms the statutory interpretation that a course of behaviour requires at least two incidents but not a sustained pattern. No new precedent was set beyond the application of existing principles to the facts of this case.