Nathan Davis discusses Sentencing for controlling or coercive behaviour in an intimate relationship – R v Dalgarno [2020] EWCA Crim 290

Commentary on the first Attorney General unduly lenient sentencing reference for an offence of controlling or coercive behaviour, contrary to section 76 of the Serious Crime Act 2005.

Facts:

Guilty pleas were entered at the Plea and Trial Preparation hearing to 3 counts: count 1 – controlling or coercive behaviour in an intimate or family relationship, contrary to section 76 of the Serious Crime Act 2005; count 3 – taking a conveyance without authority, contrary to section 12(1) of the Theft Act; and, count 4 – damaging property, contrary to section 1(1) of the Criminal Damage Act 1971.

Count 1, which is of primary focus, reflected the domestic abuse he had perpetrated against his former partner, ‘F’, from June/July to mid-September. The behaviour included, but was not limited to:

– Controlling contact F had with her family and friends;

– Monitoring of F’s phone and social media contacts – for example making her hand over her phone when she returned from work and keeping records of her messages;

– He made repeated accusations that she was unfaithful and looking at other men;

– He was violent towards her and caused significant bruising, including when he knew she was pregnant;

– He stabbed her with a penknife;

– He was violent to the property, throwing items at the wall and floor;

– When she was admitted to hospital for a kidney infection he accused her of fabrication, was abusive towards her and threatened to interfere with her treatment;

– He smashed her phones;

– At one stage he would call her 60 – 70 times a day to monitor who she was with.

Counts 3 and 4 related to his actions after he was released on bail on 21st September. Despite bail conditions not to contact F, he broke into her home and stole her car. He then went to F’s sister’s home and damaged her front door.

The offender had significant and relevant previous convictions: from 2009 – 2018 he had at least 4 convictions for violence against former partners, including instances where they were pregnant. The greatest sentence he had received was to 10-months imprisonment in April 2017.

He was sentenced to a 24-month community order for each count with 30 RAR days, a condition of residence and participation in a Building Better Relationships Programme.

Judgment:

The Court of Appeal considered that the offender’s behaviour fell within category 1A. In terms of culpability the Court acknowledged: the length of time; that there were multiple methods of controlling behaviour; there was a degree of sophistication; verbal and physical violence; her access to others was limited; multiple and graphic sexual allegations were made against F; and the conduct was intended to humiliate and degrade.

Regarding the level of harm, the Court noted F was in fear of violence, frequently assaulted and had to leave her own home.

The Court remarked several aggravating factors, most relevant were his previous convictions; some of the offending was committed under the influence; and he had taken steps to try and prevent reporting.

The Court held that the sentence was unduly lenient and imposed a three-year custodial sentence on count 1, after credit for his guilty plea. Sentences of 3 months were imposed concurrently to counts 3 and 4.

Comment:

The case is significant for two main reasons. The first is that it highlights an instance when it would not be appropriate to pass a community order for this offence. Despite that the sentencing Judge found the same starting point as the Court of Appeal, he considered that the offender should be given the opportunity to break his cycle of abuse of women and of violence (see [58]).

It is important to note the Sentencing Council on the ‘Imposition of community and custodial sentences’ which states at the relevant section:

“Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.”

The Court of Appeal considered that such a sentence was not appropriate in these circumstances where the offender ‘had been given very many chances to change his conduct and who had failed to avail himself of these opportunities.’ (see [71]). It is important to note that they did not state that because the offending fell within category 1A that that, of itself, made the imposition of a community order inappropriate.

The guidance to take from this case, therefore, is:

– Offending which falls within category 1A on the guidelines does not, automatically, mean that a community order would be an inappropriate sentencing option;

– However, it would be where the offender has – like on the facts of this case – perpetrated domestic abuse over a prolonged period against multiple partners and has failed to address this, despite previous community and custodial sentences imposed. It is significant to note that each factor indicating it would be inappropriate to suspend any custodial sentence was present: he presented a high risk; he had a history of poor compliance with court orders; and appropriate punishment could only be achieved by immediate custody.

Secondly, this was the first referral by the Solicitor General for an offence contrary to section 76 of the Serious Crime Act 2005. Until the amendment came into force in November 2019, this offence had not previously been included within the scope of the Attorney’s General’s referencing powers for unduly lenient sentences. The referral itself demonstrates that, in appropriate cases, this power will be used and its inclusion within the amendment was more than merely tokenistic.

 

Nathan Davis

Pupil Barrister.

Nathan is a common law pupil who is currently undertaking his second-six.