Nesfield, R. v

Factual and Procedural Background

This opinion concerns an application by His Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 to refer a sentence for being unduly lenient. The Respondent Offender pleaded guilty on 24 October 2024 at the Crown Court at York to three offences: controlling or coercive behaviour in an intimate or family relationship, assault occasioning actual bodily harm, and unlawful wounding. Other charges were ordered to lie on the file. On 4 December 2024, the Offender was sentenced to a total of 27 months' imprisonment, with concurrent sentences for the latter two offences and a restraining order for five years.

The offending spanned approximately three years, involving repeated serious violence against the victim, who was the Offender's partner for about ten years and with whom he had two children. The abuse included assaults such as punching, strangulation, and throwing objects, with some incidents witnessed by their young children. The final assault in July 2024 prompted the victim to report the Offender to the police, leading to his arrest and subsequent prosecution. The Offender initially denied the abuse but later pleaded guilty to certain counts. The sentencing court considered various reports, including a pre-sentence report detailing the Offender's mental health diagnoses and risk assessments, as well as a victim personal statement describing the profound impact of the abuse on the victim and children.

The sentencing judge identified the controlling and coercive behaviour as the lead offence and imposed a sentence reflecting the overall offending, with credit for the guilty plea. The prosecution challenged the adequacy of the sentence as unduly lenient, leading to this referral.

Legal Issues Presented

1. Whether the sentence imposed on count 1 (controlling or coercive behaviour) was unduly lenient in light of the totality and gravity of the offending.
2. Whether the sentencing judge appropriately applied the sentencing guidelines and principles, including the Totality guideline and credit for guilty pleas.
3. Whether the concurrent sentences for counts 9 and 10 adequately reflected the seriousness of the distinct offences of serious violence within the context of ongoing domestic abuse.

Arguments of the Parties

Solicitor General's Arguments

• The starting point of 3 years' imprisonment before credit was insufficient to reflect the full extent of the offending, which spanned over three years and included at least nine separate incidents.
• The harm was very high due to actual infliction of violence, not just fear of violence.
• The impact on the Offender's children was a significant aggravating factor under the sentencing guidelines.
• Counts 9 and 10 represented distinct serious violent offences aggravated by their context and presence of children, potentially meriting consecutive sentences or a longer notional sentence after trial.
• The notional sentence before credit should have been at the top end or above the category range for a category 1A offence, reflecting the overall gravity.

Respondent's Arguments

• The starting point of 3 years was not unduly lenient given substantial mitigation, including demonstrated remorse and mental health issues.
• The Offender had taken steps to address offending behaviour and mental health while in custody.
• The sentencing judge was aware of and properly applied the Totality guideline.
• The judge was entitled to structure the sentences concurrently rather than consecutively.
• The threshold for a sentence to be considered unduly lenient is high, and this threshold was not met.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized the complexity of the sentencing exercise and the principle that it is not their role to re-sentence the offender but to assess whether the sentence was unduly lenient. The sentencing judge had made count 1 the lead offence and treated the other offences as aggravating factors, applying credit for the guilty plea.

However, the court concluded that the total sentence was unduly lenient because the uplift on count 1 was insufficient to reflect the true gravity of the overall offending. The court accepted that the principle of totality must be respected, meaning the sentences should not simply be added together, but the starting point for count 1 should have been significantly higher.

The court determined that the appropriate notional sentence after trial should have been at the top of the category range for a category 1A offence (4 years' custody). After applying the 25% credit for the guilty plea, the sentence should have been 3 years' imprisonment. The concurrent sentences for counts 9 and 10 were to remain unchanged, with the increased sentence on count 1 reflecting totality.

Holding and Implications

The court GRANTED the Solicitor General's application under section 36 of the Criminal Justice Act 1988 and substituted the sentence on count 1 with a term of 3 years' imprisonment.

This decision directly affects the Offender by increasing the custodial sentence to better reflect the seriousness and prolonged nature of the offending. No new legal precedent was established; rather, the court applied existing sentencing principles and guidelines to ensure the sentence was just and proportionate.