D, R. v

Factual and Procedural Background

On 21 January 2022, the Appellant returned to The City from Scotland and was picked up at the train station by the Complainant, his ex-partner. Despite both having new partners, the Appellant contacted the Complainant to request the pick-up. They went to the Complainant's home, shared a meal, and subsequently engaged in sexual activity. During this time, an argument escalated resulting in a strangulation assault by the Appellant on the Complainant, causing actual bodily harm. The Complainant called the police the same evening, reporting visible bruising and swelling, although no distinctive neck markings were noted by the attending officer.

The Appellant was arrested the next day, initially pleaded not guilty, and lodged a defence of self-defence claiming he was the victim of an attack. Twelve days before trial, he changed his plea to guilty for assault occasioning actual bodily harm. Sentencing took place on 16 June 2023 at Belfast Crown Court, and the Appellant appealed the sentence imposed, which is the subject of this judgment.

Legal Issues Presented

1. Whether the sentence of four years custody and three years licence, with a five-year Violent Offences Prevention Order, was manifestly excessive or wrong in principle.
2. Whether the trial judge erred in selecting a five-year starting point for sentencing.
3. Whether the plea discount was improperly applied.
4. Whether the trial judge erred in assessing the level of harm as high, considering the nature of injuries.
5. Whether there was impermissible double counting of the aggravating feature of strangulation in assessing culpability and harm.
6. Whether too much weight was placed on the Appellant's antecedents.
7. Whether the trial judge erred in his assessment of dangerousness under Article 14(1)(b)(i) of the Criminal Justice (Northern Ireland) Order 2008, particularly by disregarding assessments by the Probation Service and a psychologist.

Arguments of the Parties

Appellant's Arguments

• The starting point of five years custody was excessive and inconsistent with previous case law.
• The trial judge promised a 25% reduction for the guilty plea but applied only a 20% reduction.
• The level of harm was overstated, as injuries were limited to bruising and redness without psychiatric injury.
• The aggravating factor of strangulation was double counted in assessing both culpability and harm.
• Excessive weight was given to the Appellant's prior convictions, none of which involved serious injury.
• The trial judge failed to give sufficient weight to the Probation Service and psychologist reports that did not assess the Appellant as dangerous.

Crown's Arguments

• The Appellant's culpability was high due to multiple aggravating factors including domestic violence, repeated strangulation, prior convictions, offences occurring in the victim's home, and offending while on police bail.
• The harm was properly assessed as high given the serious nature of non-fatal strangulation and its psychological impact, notwithstanding limited visible injuries.
• The plea discount was correctly applied as a one-year reduction from the five-year starting point.
• The assessment of dangerousness was properly made by the trial judge, who was entitled to depart from the Probation Service and psychologist's views based on the pattern of violent behaviour.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the trial judge's assessment of culpability and harm, emphasizing the structured approach to sentencing for assault occasioning actual bodily harm. The judge's finding of high culpability was supported by multiple aggravating factors, including a history of domestic violence, repeated strangulation incidents, and offending while on bail. The court accepted that non-fatal strangulation is a particularly serious form of assault, often causing psychological harm disproportionate to visible injuries, as supported by cited case law.

Regarding the plea discount, the court found that the trial judge's misstatement of the percentage reduction (25% instead of 20%) was a mathematical error without legal consequence, as the one-year reduction was correctly applied.

On the issue of double counting, the court clarified that using the same factual matrix to assess both culpability and harm is not impermissible double counting but a proper evaluation of different sentencing factors.

In assessing dangerousness under the 2008 Order, the court acknowledged the trial judge's discretion to depart from the Probation Service and psychologist reports, noting that those assessments related to current risk while the judge's task included future risk. The judge's conclusion of a significant risk of serious harm was supported by the pattern of violent domestic behaviour.

Consequently, the court found no error in the sentencing process or the dangerousness assessment and dismissed the grounds of appeal.

Holding and Implications

The court DISMISSED the appeal against sentence.

The decision upholds the extended custodial sentence of four years custody and three years licence, along with the five-year Violent Offences Prevention Order. The ruling confirms the appropriateness of high starting points in cases involving non-fatal strangulation and repeated domestic violence, reinforces the validity of assessing psychological harm beyond visible injuries, and clarifies the proper application of plea discounts and assessments of dangerousness under the 2008 Order. No new legal precedent was established; rather, the judgment affirms the correct application of established principles to the facts of this case.