R v Alex Borsodi

For intentional strangulation, custody will usually be appropriate, but a custodial term may be suspended where the circumstances justify it. The statement that immediate custody will ordinarily follow does not impose an exceptional-circumstances test for suspension.

A sentencing judge errs by treating immediate imprisonment as the only permissible outcome unless exceptional circumstances exist. The ordinary sentencing guidance must instead be applied to the aggravating and mitigating features of the individual case.

The applicant pleaded guilty to intentional strangulation of his partner. He was committed for sentence by Chester Magistrates’ Court and, on 18 May 2023, the Crown Court at Chester imposed 10 months’ immediate imprisonment.

He appealed on the basis that the sentencing judge had misunderstood the guidance in Cook (Alfie) [2023] EWCA Crim 452. Although counsel sought to abandon the appeal at the hearing, the court considered that the point of principle required determination.

The central issue was whether the judge had wrongly equated the ordinary appropriateness of immediate custody with a requirement of exceptional circumstances before a custodial sentence could be suspended.

1. Permission was granted, but the appeal was dismissed. The sentencing judge had erred in principle by misinterpreting Cook (Alfie) [2023] EWCA Crim 452.

2. The first sentence of paragraph 16 of Cook (Alfie) states that custody is appropriate for intentional strangulation save in exceptional circumstances. That does not require immediate imprisonment in every non-exceptional case. A custodial term may, where appropriate, be suspended.

3. The separate statement that immediate custody will ordinarily be imposed identifies the usual outcome. It must not be equated with the exceptional-circumstances qualification governing whether custody is appropriate at all. The judge’s conflation of those propositions led him wrongly to regard a suspended sentence as unavailable unless the case was exceptional.

4. Had the judge applied the relevant sentencing guidance correctly to the aggravating and mitigating circumstances as they existed at sentence, the court was satisfied that he would have imposed a suspended sentence. The applicant’s voluntary deportation process, however, meant that he would not be able to comply with conditions which the court considered necessary for such an order. A suspended sentence was therefore no longer appropriate.

5. The existing sentence of 10 months’ immediate imprisonment consequently remained in force.

1. Court of Appeal (Criminal Division): Permission to appeal against sentence was granted. The court held that the sentencing judge had erred in principle, but dismissed the appeal because a suspended sentence was no longer appropriate on the applicant’s current circumstances.
2. Crown Court at Chester: On 18 May 2023, Recorder Ainsworth imposed 10 months’ immediate imprisonment for intentional strangulation.
3. Chester Magistrates’ Court: The applicant pleaded guilty and was committed for sentence on 18 May 2023.