In this summary, Emma Clarke discusses two recent cases on sentencing non-fatal strangulation, R v Cook  EWCA Crim 452 and R v Butler  EWCA Crim 800.
On 4th April 2023, the Court of Appeal (Criminal Division) laid down the first guidelines for dealing with sentences for offences intentional strangulation, in the matter of R v Cook  EWCA Crim 452.
Section 70 of the Domestic Abuse Act 2021 introduced the offence of non-fatal strangulation by adding section 75A to the Serious Crime Act 2015.
The legislation applies to any offence committed on or after 7th June 2022. The offence is committed when a person intentionally strangles another person, or does any other act to that person that affects the ability of the person to breathe and constitutes a battery of that person.
The absence of the requirement for any injury to be shown was a deliberate omission from the legislation. There is no requirement to prove any injury or harm for the offence; it is satisfied so long as there is strangulation1 and it is intentional.
There are no Sentencing Council Guidelines in place for an offence of intentional strangulation. Frequently, the guidelines for assault occasioning actual bodily harm are referred to by way of an offence with appropriate likeness.
That was the case for the appellant who was convicted of a single count of intentional strangulation, an offence committed on bail for an offence of common assault for which he was later convicted at trial in the magistrates’ court. He entered a guilty plea at a pre-trial preparation hearing to this offence. He was later sentenced to 15 months' imprisonment.
In determining sentence, reference was made to the Sentencing Council Guidelines for assault occasioning actual bodily harm. It was observed that the offence, with reference to that guideline, was a one of high culpability. It was submitted on behalf of the appellant with guideline that harm fell into Category 3. The sentencing judge disagreed with that, stating that the incident would have caused "enormous upset" to the victim. It was following this that the sentencing judge concluded a sentence of 15 months’ imprisonment, allowing 25% credit for the guilty plea.
By way of appeal, it was submitted that the sentencing judge had erred in their application of the guidelines of assault occasioning actual bodily harm for this offence, It was conceded that the application of high culpability was correct, but that the victim had suffered ‘no more than some level of physical or psychical harm’, and as such, the case fell into Category 3 harm.
In granting leave to appeal, the Court observed that it is unlikely that the Sentencing Council will apply its mind to this offence at any time in the immediate future, as such it was deemed appropriate to give general guidance in relation to the appropriate level of sentence.
It was held that the sentencing judge was entitled to have some regard to the guideline in relation to assault occasioning actual bodily harm. Intentional strangulation, by definition, involves an assault.
However, the sentencing judge was neither required, nor entitled, to do anything more than have some regard to the assault guideline. The offence of intentional strangulation does not, as an element of the offence, include any element of physical or psychological harm. To seek to set the starting point for the offence by reference to actual harm is wrong in principle.
The Court went on to set out the proper approach to sentencing any offence of intentional strangulation, and stated that, in view of the inherent conduct required to establish the offence, a custodial sentence will be appropriate, save in exceptional circumstances. Ordinarily that sentence will be one of immediate custody, with a starting point of 18 months' custody. The starting point will be the same whatever the gender of the perpetrator.
It is no longer desirable for a court to do anything more than have ‘some regard’ to alternative guidelines when considering sentences for offences where there are none.
In particular, a court must approach with caution in considering ‘harm’ factors in relation to the guidelines for assault occasioning actual bodily harm when dealing with a sentence for intentional strangulation. Rightly so, the clear distinction is that ‘harm’ cannot be a determining factor in sentence for an offence that explicitly does not require any harm or injury for it to have been committed. To do so would be to misinterpret the factors of the offence itself.
Instead, the court should take a starting point of 18 months’ custody, and apply the specific factual circumstances of the particular matter, having regard to specific aggravating factors set out at paragraph 16 of the judgment.2 The usual statutory aggravating factors also apply as well as the Sentencing Council’s Domestic Abuse Guideline. Since the offence does not have specific guidelines, courts should have regard to the Sentencing Council Overarching Principles’ Guideline.
The approach taken in Cook has since been confirmed by the Court of Appeal in R v Butler  EWCA Crim 800,3 specifically considering the starting point and appropriate sentence in cases where both intentional strangulation and assault occasioning actual bodily harm are charged. In this matter, the Court pronounced that the approach ought to start with sentence for the offence of intentional strangulation, before moving on to consider the extent to which that sentence should be increased to reflect the additional criminality involved in the assault, of course, guarding against double counting. The result of which being that the intentional strangulation becomes the lead offence when charged alongside assault. The Court indeed recognised that there will be some circumstances where the offence of assault will act as a lead offence for sentencing purposes, dependant on the specific factual matrix of each case.
 Or any other act to that person that affects the ability of the person to breathe and constitutes a battery of that person.
 Specific factors include a history of violence, presence of children, attack carried out in victim’s home, whether the strangulation was sustained or repeated, amongst others.
 R v Butler  EWCA Crim 800, paragraph 24 per Mr Justice Jacobs.