R v Cook [2023] EWCA Crim 452: A Rejection of a Harm-Based Approach

In this recent judgment, in April 2023, the Court of Appeal has provided guidance on the correct approach to sentencing the relatively new offence of intentional strangulation. This is the first case to come before the Court as regards this offence.

The offence of intentional strangulation was introduced by section 75A of the Serious Crime Act 2015 and came into force for any offence committed on or after 7 June 2022. It is triable either way and has a maximum sentence of 5 years’ imprisonment.

The offence is committed when a person intentionally strangles another person, or does any other act to that person that affects the ability of the person to breathe and constitutes a battery of that person.

The Facts

Alfie Cook was 20 at the time of the appeal and 18 at the time of the offence. Shortly before the offence of strangulation came into force, Cook assaulted his former partner by strangling and spitting at her. He was charged with common assault and bailed with conditions not to visit her home address. 4 months later, in breach of his bail conditions, Cook attended the complainant’s address, an altercation ensued, culminating in Cook squeezing her around the neck and pushing her hard on the sofa, causing her head to hit the wall beside the sofa. Cook then got on top of the complainant and began to strangle her using both hands. As he did so, he was shouting obscenities and spit dripped from his mouth onto the complainant. This left the complainant with reddening to her neck.

Cook was found guilty of the common assault in the Magistrates’ Court. He pleaded guilty to the intentional strangulation at PTPH. He was sentenced to 15 months’ custody. The sentence after trial would have been 20 months’ custody. The sentencing judge was referred to the ABH guideline and indeed the appeal focussed on the fact that the judge had mischaracterised the harm in the case by reference to that guideline.

The Judgment

The Court of Appeal was satisfied that the proposition on which the appeal was based was misconceived. The judge was neither required nor entitled to do anything more than have some regard to the ABH guideline. The offence of intentional strangulation does not include any element of physical or psychological harm [14].

The inherent conduct in the offence will mean a custodial sentence will be appropriate, save in exceptional circumstances. Ordinarily, the sentence will be one of immediate custody [16].

The starting point will be 18 months’ custody. It may be increased by the following factors:

(i) History of previous violence. The significance of the history will be greater when 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.

Specific reference was made to the overarching principles in relation to domestic abuse. Domestic abuse offences are to be regarded as particularly serious. Further, “provocation is no mitigation to an offence within a domestic context except in rare circumstances” [17].

The following, non-exhaustive, mitigating factors were identified:   

(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. 

Applying the above, the Court of Appeal concluded that the appropriate sentence for Mr Cook would have been 24 months before any credit was applied.  

Comment

Much in the judgment reflects the usual application of the Sentencing Council Overarching Principles Guideline, but of particular note is the starting point of 18 months’ custody, ordinarily immediate. The factors which could be said to be unique to this offence are:

• History of strangulation;
• Use of a ligature or equivalent; and
• Very short-lived strangulation from which the offender voluntarily desisted.

Defence practitioners may be concerned by the specific rejection of an approach where the harm caused is a central consideration, as is the case with most assaults. The offence does not require any element of physical or psychological harm. Therefore, any harm actually caused would aggravate the sentence up from the starting point of 18 months’ imprisonment.