Molloy, R. v

In sentencing for a threat to kill, the applicable guideline category depends on a judicial assessment of the offence’s actual impact on the victim. Where a threat is made during serious violence, it may be artificial to separate the distress caused by the threat from that caused by the assault. The combined circumstances may establish the highest level of harm, particularly where the victim is vulnerable and reasonably believes that the threat will be carried out.

Appellate intervention is not justified where the sentencing judge was entitled to adopt that assessment and the sentence is neither manifestly excessive nor wrong in principle.

The appellant pleaded guilty at Worcester Crown Court to making a threat to kill, contrary to section 16 of the Offences Against the Person Act 1861, and assault occasioning actual bodily harm, contrary to section 47 of that Act. He threatened to kill and repeatedly punched his vulnerable mother while subject to a community order for a recent threat-to-kill offence against his former wife.

The judge imposed five years’ imprisonment for the threat to kill and one year concurrently for the assault, revoked the community order, and made a four-year restraining order. The appellant appealed against sentence, contending that the lead offence fell within a lower guideline category and that the sentence was excessive.

1. The appeal was dismissed. The judge was entitled to treat the threat to kill as the lead offence. The violence gave the offence higher culpability.
2. In assessing harm under the Sentencing Council Guideline for Intimidatory Offences, the judge had to make a judicial assessment of the factual impact upon the victim. The court applied the approach identified in R v Chall [2019] EWCA Crim 865. The victim’s severe distress was capable of placing the offence in category 1A.
3. The threat and accompanying violence formed one traumatic event. On these facts, it was artificial to attribute the victim’s distress separately to the threat and to the assault. The victim was vulnerable, was alone, and believed that her son would carry out the threat.
4. The judge was also entitled to treat the appellant’s history of violence towards family members, his recent analogous conviction, the breach of a community order, and intoxication as aggravating features. The basis of plea and personal mitigation, including military service and post-traumatic stress disorder, had been adequately reflected in the sentence.
5. The court noted, as a subsidiary matter, that the sentencing remarks were unduly lengthy and did not heed the guidance in R v Chin-Charles and Cullen [2019] EWCA Crim 1140. That observation did not affect the validity of the sentence. The five-year sentence was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence in [2020] EWCA Crim 604.
• Worcester Crown Court: following guilty pleas, imposed five years’ imprisonment for making a threat to kill and one year concurrently for assault occasioning actual bodily harm; revoked a community order and imposed a four-year restraining order.