Sentencing non-fatal strangulation and suffocation – R v Cook and recent updates from the Court of Appeal

Introduced as part of the Government’s Violence Against Women and Girls Strategy 2021 and enshrined in law by s75A of the Serious Crime Act 2015, the offences of non-fatal suffocation and strangulation are increasingly being charged alongside other more common offences against the person as well as offences such as controlling and coercive behaviour.

The offences do not require any harm to come to the complainant but the Act is clear that there must be evidence that the Complainant’s ability to breath was affected. Police and prosecutors should take care to ensure that this aspect is covered in witness statements and evidence in chief.

Given that there are currently no sentencing guidelines (September 2023), this article explores the correct approach to sentencing these offences and highlights certain cases post Cook where custody was avoided.

Leading authority – R v Cook [2023] EWCA Crim 452

The leading authority on sentencing non-fatal suffocation and strangulation is the Court of Appeal’s judgment in R v Cook (“Cook”). Mr Cook, who was 18 at the time of his offending, strangled his 17 year old partner with both hands, pushing her down into a sofa and spitting in her face. He was shouting obscenities at her whilst doing this. His partner was able to push him off and subsequently hid in her bathroom before fleeing the house.

At the sentencing hearing, following a guilty plea at the plea and trial preparation hearing, the judge did not have the benefit of a Court of Appeal judgment dealing with these offences. The sentencing judge relied on the sentencing guidelines for assault occasioning actual bodily harm but as that offence requires a certain level of harm before it is made out, the Court of Appeal concluded that determining the starting point for strangulation/suffocation by reference to actual harm was wrong in principle.

At paragraph 16 of the judgement in Cook, the Court of Appeal held that a custodial sentence will be appropriate save in exceptional circumstances and that ordinarily, the sentence will be one of immediate custody. The starting point is 18 months’ custody.

The Court of Appeal then went on to list a non-exhaustive list of aggravating factors:

• History of previous violence. The significance of the history will be greater when the previous violence has involved strangulation.
• Presence of a child or children.
• Attack carried out in the victim’s home.
• Sustained or repeated strangulation.
• Use of a ligature or equivalent.
• Abuse of power.
• Offender under influence of drink or drugs.
• Offence on licence.
• Vulnerable victim.
• Steps taken to prevent the victim reporting an incident.
• Steps taken to prevent the victim obtaining assistance.

Statutory aggravating factors will also apply:

• Previous convictions, having regard to (a) the nature of the offence to which the conviction relates, and its relevance to the current offence; and (b) the time that has elapsed since the conviction.
• Offence committed whilst on bail.
• Offence motivated by or demonstrating hostility based on any of the following characteristics, or presumed characteristics of the victim, disability, sexual orientation, or trans-gender identity.

The Court of Appeal then set out the application of other guidelines and the impact of mitigating factors. They stated that the Sentencing Council overarching principles in relation to domestic abuse are likely to be relevant when sentencing for the offence of intentional strangulation. As the guideline makes clear, domestic abuse offences are to be regarded as particularly serious. The aggravating factors at paragraph 11 of the overarching principles will apply in every case of domestic abuse. As set out at paragraph 13 of that guideline: “Provocation is no mitigation to an offence within a domestic context, except in rare circumstances.” Mitigating factors will include:

• Good character.
• Age and immaturity.
• Remorse
• Mental disorder.
• Genuine recognition of the need for change and evidence of the offender having sought appropriate help and assistance.
• Very short-lived strangulation from which the offender voluntarily desisted.

Finally the Court reminded judges and advocates that in the absence of an offence specific guideline, the Sentencing Council Overarching Principles’ Guideline applied. Practitioners should always consult this guideline to see whether any of the aggravating or mitigating factors are present.

Other cases to consider

R v Butler [2023] EWCA Crim 800, dealt with a case where the Defendant was charged with both strangulation and ABH which arose out of the same assault. The Defence tried to argue that the absence of specific harm caused by strangulation should result in a lower sentence. The Court of Appeal disagreed and said that these sorts of arguments fail due to the inherent harm involved in strangling someone. When such offences are charged together, the Court of Appeal indicated that treating the strangulation as the lead offence and increasing it to reflect the overall criminality would normally be appropriate (but accepted that it would depend on the facts of individual cases and it may sometimes be appropriate to treat the assault as the lead offence).

Cases where custody is not appropriate

Despite the starting point usually being one of 18 months’ immediate custody, the Court of Appeal in Cook accepted there may be exceptional circumstances where this would not apply.

In R v Borsodi [2023] EWCA Crim 899, the Defendant returned home from a party in drink and strangled his partner for around 30 seconds whilst shouting aggressively. His partner had one of their young children in her arms at the time. He stopped of this own accord and his partner fled the property. She had reddening to her neck and blood around her mouth. The Defendant was subsequently arrested. He made no comment in interview but pleaded guilty at the first hearing.

The pre-sentence report indicated a community based punishment could be imposed. The report outlined that the Defendant had expressed remorse for his actions, had no previous convictions or call outs, was the breadwinner for the family and had reconciled with his partner who was expecting another child. The judge also accepted that the Defendant had stopped of his own volition and that the strangulation was short lived.  Aggravating factors were identified, namely the consumption of alcohol, presence of children commission of the offence in the complainant’s home.

The sentencing judge then stated:

I of course have been referred to the imposition guidelines and I acknowledge that there is a prospect of rehabilitation but it seems to me that the words of the Court of Appeal in paragraph 16 ‘We consider that ordinarily that sentence will be one of immediate custody’ is effectively saying that appropriate punishment can only be attained in a case of this nature save in exceptional circumstances with the imposition of an immediate sentence of imprisonment. As I have already said, there is nothing exceptional about this case. It is a very sad case and the impact of any sentence of imprisonment will be significant because it means you will miss the birth of your third child as you serve your first sentence of imprisonment. Nevertheless, that is the duty of the court.”

On appeal, the Court of Appeal held that “Ordinarily” is not to be equated with “exceptional circumstances”, which is where the judge fell into error. The first sentence in the Cook judgment makes clear that in view of the inherent conduct required to establish this offence a custodial sentence will be appropriate, save in exceptional circumstances, and such a custodial sentence may be immediate or, in appropriate cases, may be suspended. The second sentence makes clear that “Ordinarily the sentence will be one of immediate custody”.

Were it not for the fact that the Defendant had sought voluntary deportation, the Court of Appeal would have allowed the appeal in Borsordi and imposed a suspended sentence.

Given that the strangulation in Borsordi lasted for around 30 seconds (which was deemed to be “short-lived”), stopped only when a neighbour intervened (which was deemed to be the Defendant stopping of his own volition) and involved strangulation in the presence of children forcing the complainant to leave her own home, the judgment acts as a powerful tool for defence practitioners to argue for a suspended sentence. Particular importance appears to have been given to a lack of previous convictions or domestic violence call outs, genuine reconciliation of the relationship and immediate custody having a significant harmful impact on others.

Standalone community orders as a sentence for strangulation/suffocation

I recently represented a defendant for sentence who had pleaded guilty to non-fatal strangulation and was able to persuade the judge to impose a standalone community order.

The Defendant had moved in with his partner of 7 years during the first Covid-19 lockdown. He was laid off from his job and his partner agreed to take him on as an employee of her business which involved them both working from home. They had no time apart and the Defendant’s partner was effectively his boss. The relationship became increasingly strained.

One morning, the Defendant’s partner got into an argument with the Defendant over a trivial matter. The Defendant, who had no previous convictions, “snapped” and strangled his partner with both hands for a few seconds. He then realised what he was doing and stopped of his own volition. The Defendant was arrested, declined a solicitor and made full admissions in interview. Unbeknownst to him, his partner had refused to provide a witness statement and so the entire prosecution was brought on his admissions in interview.

The pre-sentence report indicated that the Defendant was very remorseful and had taken a number of steps to address his offending behaviour including paying privately for counselling. The Defendant also had undiagnosed ADHD at the time of the offence. The Defendant’s partner had written to the court setting out the stressors that were present at the time and the work that they had done on their relationship in the intervening months. There was also a significant period of delay for an offence that was based wholly on admissions in interview.

At the sentencing hearing, I submitted a skeleton argument which set out the judgment in Cook and which reasoned that a Community Order could provide sufficient restriction on liberty (by way of punishment)  whilst addressing the rehabilitation of the offender to prevent future crime. I also submitted that there was no need for a punitive element to any community based punishment in exceptional circumstances of the case.

The learned sentencing judge agreed and imposed a standalone community order with 20 RAR days.

Conclusion

Despite the starting point being one of 18 months’ immediate custody, the Court of Appeal has left a lot of scope for defence advocates to argue that suspended sentences can and should be imposed. Particular attention should be given to cases with no (or no relevant) previous convictions where there is prompt admission and genuine reconciliation of the relationship.

As always, the strongest arguments will be those where the defence advocate can argue that the factors in favour of suspending a sentencing as set out in the Imposition of Community and Custodial Sentences Sentencing Guideline are present.