Factual and Procedural Background
The Appellant (aged 17 at the time of the offending) was in a relationship with the Victim (aged 18). Towards the end of December 2022 their relationship deteriorated while they were living at the Victim's family home. On 31 December 2022 an argument occurred. The Victim locked herself in a bathroom; the Appellant banged on the door, made threats and, after kicking through a wooden panel of the door, crawled through the hole. The parties moved to the landing at the top of the stairs where the Appellant kicked the Victim to the thigh causing bruising (criminal damage and assault counts were charged). The Appellant then placed both hands around the Victim's throat, restricting her breathing for an interval described as at least five or six seconds; the Victim reported difficulty breathing and said she thought she was going to die. The Victim recorded parts of the exchange on her phone, notified her parents and contacted emergency services.
The Appellant was arrested, gave a no comment interview and was charged. The case proceeded through the Magistrates' Court with initial not guilty pleas and a Crown Court trial date fixed. At an early hearing bail conditions were imposed. The Appellant pleaded guilty to a charge of criminal damage at an earlier stage and, on 26 March 2024, changed pleas to guilty on the non-fatal strangulation and one count of assault by beating; another assault charge was ordered to lie on the file. On 11 September 2024 the Appellant was sentenced in the Crown Court as follows: detention in a young offender institution for the non-fatal strangulation offence under section 75A(1)(a) and (5) of the Serious Crime Act 2015 (nine months), with concurrent detention for assault by beating under section 39 of the Criminal Justice Act 1988 (two months) and concurrent detention for criminal damage under section 1(1) of the Criminal Damage Act 1971 (one month).
Legal Issues Presented
- Whether a custodial sentence was wrong in principle because the sentencing judge failed to adopt the correct approach for a defendant who was 17 at the time of the offending, including failure to apply the children and young persons sentencing guideline (paragraphs 6.1–6.3) and the youth-specific principles identified in authority such as Khan.
- Whether the sentencing judge erred by using an adult starting point (adopted from Cook) rather than properly considering the sentence that would have been passed at the date of the offence had the Appellant been sentenced as a child.
- Whether it was an error to impose a custodial sentence in light of the time the Appellant had already spent on remand and on licence, and whether the judge wrongly treated time on remand as justifying further immediate custody.
- Whether the sentencing judge made incorrect assumptions about the effect of the sentence on the Appellant (including the enforceability of community penalties and the impact of licence and post‑sentence conditions).
- If detention was justified in principle, whether the length of the custodial term was manifestly excessive and whether the correct starting point was lower than the 18 months adopted from Cook.
Arguments of the Parties
Appellant's Arguments
- The sentencing judge purported to apply the approach for sentencing a 17‑year‑old but in practice started from the sentence that would have been imposed on an adult, adopting the 18‑month starting point from Cook and failing to apply the children and young persons guideline (paras 6.1–6.3) and the youth welfare and developmental considerations (including the principle that young people are still developing up to the age of 25, as articulated in Khan).
- The judge did not sufficiently take into account the Appellant's personal mitigation, notably severe childhood trauma and diagnosed PTSD (as reported in pre‑sentence and psychiatric/psychological reports), and so the reduction to reflect youth (a one‑third reduction) was inadequate.
- The judge wrongly treated the Appellant's time in custody on remand as a reason for imposing immediate custody rather than recognising its impact on overall punishment; time on remand does not necessarily count towards post‑release supervision and the judge made incorrect assumptions about licence conditions and the enforceability of community penalties.
- Given the Appellant had already spent substantial time on remand and subject to licence conditions, the fairest disposal would be a conditional discharge rather than additional custodial or community requirements.
- Alternatively, if custody was justified, the chosen starting point (18 months) was too high in the circumstances; a starting point nearer 12 months would better reflect the brief period of strangulation (around five seconds), voluntary desistance and absence of severe injury, and the resulting custodial term was manifestly excessive.
The provided opinion does not contain a detailed account of the Crown's (Respondent's) oral submissions in reply.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Cook [2023] EWCA Crim 452 |
Guidance on sentencing for non‑fatal strangulation, including an exemplar starting point; the court quoted Cook's observation that "The act of strangulation inevitably creates a real and justified fear of death" (Cook, para 4).
|
The sentencing judge adopted the 18‑month starting point identified in Cook. The Court of Appeal accepted that the judge "faithfully applied the guidance" in Cook and that the adoption of Cook as the starting point was not, in principle, an error.
|
| Khan [2024] EWCA Crim 401 |
Principle (as cited to the court) that young people are still developing up to the age of 25 and that immaturity affects their ability to appreciate the consequences of their actions (referenced to paragraph 23 of Khan).
|
The Appellant relied on Khan to argue that the sentencing judge failed to have appropriate regard to youth development. The Court of Appeal concluded that the judge had in fact taken the relevant youth principles into account (noting reference to paragraph 6.46 of the children and young persons guideline) and therefore found no error of principle in this respect.
|
| Dawes [2019] EWCA Crim 848 |
Authority for the principle that where a defendant has served a period on remand equivalent to or exceeding the sentence contemplated by the sentencing judge, it may be inappropriate to impose an additional active sentence; the example given was quashing a suspended sentence and imposing a conditional discharge where remand had equalled or exceeded the effective sentence.
|
The Court of Appeal relied on Dawes when considering the cumulative effect of the Appellant's time in custody, on licence and under post‑sentence supervision. Applying the reasoning in Dawes, the court concluded that it would be unjust to impose further custodial or post‑sentence conditions and substituted conditional discharges.
|
Court's Reasoning and Analysis
The Court began by restating the gravity of non‑fatal strangulation: the act creates a real and justified fear of death and does not depend on proof of injury (drawing from Cook). The factual matrix the sentencing judge accepted included an unprovoked domestic incident, consumption of alcohol by the Appellant, removal of the Victim's phone (preventing immediate contact with emergency services), the damaging of the bathroom door, kicking of the Victim causing bruising, and the placement of both hands around the Victim's throat for a period sufficient to restrict breathing and leave marks.
The sentencing judge had received and relied on a pre‑sentence report, liaison and diversion report, two psychological reports (Psychologist [Goodsell]) and a psychiatric report (Psychiatrist [Agarwal]), all diagnosing PTSD arising from severe childhood trauma (including abuse and the murder of the Appellant's mother when the Appellant was nine). The judge accepted this mitigation and found the Appellant had been significantly affected.
In sentencing, the judge adopted the Cook starting point of 18 months for the strangulation offence, identified a series of aggravating factors and applied mitigation to arrive at an adult equivalent sentence of 15 months. He then applied the overarching guideline approach for children and young people, expressly stating the starting point should be the sentence that would have been imposed had the Appellant been sentenced as a 17‑year‑old. Applying paragraph 6.46 of the children and young persons guideline, the judge reduced the adult figure by one third to reflect youth and then applied a further 10% reduction for a late guilty plea, producing the custodial figure passed (nine months).
The Appellant challenged the approach on several grounds. The Court of Appeal examined each and found no error of principle in the judge's approach: the judge had regard to the youth guidelines (even if he did not quote them verbatim), had considered whether a community penalty could be imposed, and had taken account of mitigation, including PTSD and traumatic history. The Court further observed that under section 25 of the Sentencing Act 2020 the Crown Court need not remit a youth to the Youth Court where it would be undesirable (for example, where detention is thought necessary).
However, the appellate court expressed legitimate concern about the cumulative effect of time already served and the judge's practical understanding of the consequences of his sentence. The Appellant had been in custody from 11 November 2023 to 11 September 2024 (ten months). The sentencing judge had indicated that the custodial part of the sentence would have been served and the Appellant would be released on that day (or soon thereafter) with a period of post‑sentence supervision, and had said that anticipated release had not affected the custodial period chosen. The Court of Appeal noted that in fact the Appellant had also spent time on licence (four‑and‑a‑half months) and would be subject to post‑sentence supervision for five months after release — meaning the accumulated effect was substantially greater than the formal custodial period pronounced.
Applying the reasoning in Dawes, the court concluded that, in these unusual factual circumstances, it would not serve the purposes of sentencing to subject the Appellant to any further period of post‑sentence conditions or to allow the formal custodial sentence to stand. The court relied on section 8(4) of the Sentencing Act 2020, which permits a conditional discharge where the court is of the opinion that it would be inexpedient to inflict punishment having regard to the circumstances, including the nature of the offence and the character of the offender.
Holding and Implications
Holding: The Court of Appeal allowed the appeal, quashed the sentences of detention and substituted concurrent conditional discharges of two years on each count. The court also adjusted the surcharge order to £20.
Implications and direct effects:
- The Appellant's prior custodial sentences were quashed and replaced by concurrent conditional discharges of two years on each offending count; this removes further immediate custody for the Appellant.
- The decision reflects the court's application of established sentencing authorities (Cook and Dawes), statutory provisions in the Sentencing Act 2020 (notably sections 8(4) and 25) and the children and young persons guideline (including paragraph 6.46 reductions for youth), rather than establishing a novel principle of law.
- The immediate practical consequence for the Appellant is that, instead of serving the imposed custodial term, he is subject to concurrent conditional discharges of two years and the surcharge has been reduced to £20.
No broader precedent‑setting declaration was made by this opinion beyond the application of the cited authorities to the specific, unusual accumulation of remand and post‑release supervisory effects in this case.