In the absence of a Sentencing Council guideline for the offence of non-fatal strangulation pursuant to section 75A of the Serious Crime Act 2015, a judge is entitled to have some regard to the guideline in relation to assault occasioning actual bodily harm in passing sentence because intentional strangulation involves an assault and the maximum sentence for both offences is five years' imprisonment. However, since the offence of intentional strangulation does not include physical or psychological harm as an element of the offence, to seek to set the starting point for the offence by reference to actual harm would be wrong in principle (para 14).
The inherent conduct required to establish this offence means a custodial sentence of immediate custody will be appropriate, save in exceptional circumstances with a starting point of 18 months' custody. The offence is much more often committed by a man against a woman but the starting point will be the same irrespective of the gender of the perpetrator. The starting point may be increased by reference to the following non-exhaustive list of factors (i) history of previous violence particularly where the previous violence has involved strangulation; (ii) presence of a child or children; (iii) attack carried out in the victim's home; (iv) sustained or repeated strangulation; (v) use of a ligature or equivalent; (vi) abuse of power; (vii) offender under influence of drink or drugs; (viii) offence on licence; (ix) vulnerable victim; (x) steps taken to prevent the victim reporting an incident; (xi) steps taken to prevent the victim obtaining assistance. The statutory aggravating factors will apply, namely (a) previous convictions, having regard to (i) the nature of the offence to which the conviction relates, and its relevance to the current offence; and (ii) the time that has elapsed since the conviction; (b) offence committed whilst on bail; (c) offence motivated by or demonstrating hostility based on any of the following characteristics, or presumed characteristics of the victim, disability, sexual orientation, or transgender identity (para 16).
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 and provocation is no mitigation to an offence within a domestic context, except in rare circumstances: see paragraph 13 of that guideline. Mitigating factors include (i) good character; (ii) age and immaturity; (iii) remorse; (iv) mental disorder; (v) genuine recognition of the need for change and evidence of the offender having sought appropriate help and assistance; (vi) very short-lived strangulation from which the offender voluntarily desisted (para 17).
Since this offence does not have a specific sentencing guideline, the Sentencing Council Overarching principles' guideline will apply. The aggravating and mitigating factors identified as being relevant to this offence are drawn substantially from that overarching guideline. When sentencing for this offence, reference must be made to the guideline to check if a particular factor applies given the circumstances of the case in question (para 18).
Jack Kiffin (assigned by the Registrar of Criminal Appeals) for the defendant.
Lyndon Harris (instructed by Crown Prosecution Service, Special Crime Division, Appeals Unit) for the Crown.