REX v ALFIE COOK

Intentional strangulation does not require proof of physical or psychological harm. The assault occasioning actual bodily harm guideline may be considered only to a limited extent and cannot provide a harm-based starting point. Custody is appropriate save in exceptional circumstances and will ordinarily be immediate, with a starting point of 18 months. Courts should consider the identified aggravating and mitigating factors, statutory aggravating factors and the Sentencing Council’s overarching principles, particularly in domestic abuse cases. The sentence was corrected from imprisonment to detention in a young offender institution because of the offender’s age. The appeal was otherwise dismissed.

The appellant pleaded guilty in the Crown Court at Isleworth to intentional strangulation committed against his former partner and was sentenced to 15 months’ imprisonment. The offence followed an earlier strangulation of the same victim and was committed while the appellant was on bail. He argued that the judge should have used the guideline for assault occasioning actual bodily harm and categorised the harm at level 3. Leave was granted because intentional strangulation was a new offence without a sentencing guideline. The central issues were the proper sentencing approach and whether the sentence was manifestly excessive.

1. The court granted leave because intentional strangulation was a new offence without a sentencing guideline. Under section 75 A of the Serious Crime Act 2015, the first limb is committed by intentionally strangling another person. Injury or harm is not an element of the offence. The absence of such a requirement was deliberate.

2. The guideline for assault occasioning actual bodily harm could be given some regard because intentional strangulation involves an assault and the maximum sentences are the same. It could not, however, be used to set the starting point by reference to actual physical or psychological harm. That approach was wrong in principle.

3. A custodial sentence is appropriate save in exceptional circumstances and will ordinarily be immediate. The starting point is 18 months’ custody, irrespective of the gender of the offender. The court identified non-exhaustive aggravating factors, including previous violence, especially strangulation, the presence of a child, an attack in the victim’s home, sustained or repeated strangulation, a ligature, abuse of power, intoxication, offending on licence, victim vulnerability and attempts to prevent reporting or assistance. Statutory aggravating factors also apply.

4. The Sentencing Council’s overarching principles are relevant. Domestic abuse offences are particularly serious. Provocation is ordinarily no mitigation in a domestic context, save in rare circumstances. Mitigation may include good character, age and immaturity, remorse, mental disorder, recognition of the need for change accompanied by appropriate assistance, and very short-lived strangulation followed by voluntary desistance.

5. On the facts, offending on bail, the previous strangulation, the presence of a child, the attack in the victim’s home and abuse of power justified increasing the starting point to 30 months. The appellant’s age justified a reduction to 24 months before the 25 per cent guilty plea reduction. The resulting figure was 18 months. The 15-month sentence was not manifestly excessive and was, if anything, lenient. The principle that age 18 is not a sharp sentencing boundary was applied: R v Clarke [2018] EWCA Crim 185 at [5].

6. The sentence of 15 months’ imprisonment was unlawful because, given the appellant’s age, it should have been expressed as detention in a young offender institution. That sentence was quashed and 15 months’ detention in a young offender institution substituted. Otherwise, the appeal was dismissed.

• Crown Court at Isleworth: the appellant pleaded guilty to intentional strangulation and was sentenced to 15 months’ imprisonment on 7 February 2023.
• Court of Appeal (Criminal Division): leave to appeal against sentence was granted. The sentence was quashed and the same term substituted as detention in a young offender institution; otherwise the appeal was dismissed.