R v Brian Lungley

Whether a custodial sentence should be suspended is a matter for the sentencing judge’s reasonable judicial discretion. The judge must address the issues identified in the Imposition Guideline and balance factors favouring immediate custody against those favouring suspension, having regard to the offence and offender. An appellate court will not interfere merely because another judge might have suspended the sentence. A refusal is not wrong or excessive where the judge has undertaken that assessment and the decision falls within the available reasonable discretion.

After a summary trial at Preston Magistrates’ Court, Brian Lungley was convicted of intentional strangulation contrary to the Serious Crime Act 2015 and committed to the Crown Court for sentence under the Sentencing Act 2020. On 3 February 2025, HHJ Preston sentenced him to 18 months’ imprisonment. He appealed against the decision to impose immediate custody rather than suspend the sentence. The custodial term itself was not challenged. The central issue was whether refusing suspension made the sentence wrong or excessive.

1. Appeal dismissed. The 18-month custodial term was correct and was not challenged. The issue was whether the sentence should have been suspended.
2. The offence was serious. The sentencing judge placed it within Category 2B of the relevant guideline, with a starting point of 18 months. Intoxication, the domestic context and the presence of a very young child aggravated seriousness. The absence of significant previous convictions, the lack of earlier violence in the relationship, personal mitigation and steps concerning alcohol use were taken into account.
3. In deciding whether to suspend the sentence, the judge addressed the issues required by the Imposition Guideline and balanced factors indicating immediate custody against those indicating suspension. The appellant’s continued denial of unlawful strangulation, his assertion of self-defence and his continued blaming of the complainant were significant features when rehabilitation was considered. The judge also concluded that the offence was too serious for anything other than immediate custody.
4. The refusal to suspend was well within the reasonable judicial discretion available. The fact that some judges might have suspended the sentence, while others would not, did not make the decision wrong or render the sentence excessive. The appellate court was therefore not persuaded that it should interfere.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 428, the appeal against sentence was dismissed.
• Crown Court at Preston: On 3 February 2025, HHJ Preston imposed an immediate sentence of 18 months’ imprisonment.
• Preston Magistrates’ Court: On 23 December 2024, the appellant was convicted after summary trial.