Unduly Lenient? The public outcry over a sex strangulation case raises difficult issues

The Attorney General’s Office has agreed to review whether the sentence imposed on a man who choked a woman to death during sex was unduly lenient. Vanessa Reid discusses the issues arising.

Sam Pybus, 32, was recently sentenced to four years and eight months in prison after pleading guilty to the manslaughter of Sophie Moss, a 33-year-old mother of two who died after Mr Pybus choked her during sex. There has been significant public outcry about the length of Mr Pybus’s sentence, and the Attorney General’s Office has now agreed to review whether the sentence was unduly lenient.

The case raises difficult issues relating to manslaughter sentencing, violence against women, and how to achieve meaningful justice in cases where there may be a significant discrepancy between the culpability of the offender and the harm done by the offence.

Facts of the Case

Mr Pybus had been seeing Ms Moss for sex around six times a year for three years, without his wife’s knowledge. On 6th February 2021, Mr Pybus drank 24 bottles of lager over 10 hours and then drove to Ms Moss’s flat. Early the following morning he drove to the police station and reported that he believed he had strangled Ms Moss. Ms Moss was found unresponsive in her home and could not be revived.

Mr Pybus told the court that he could not remember choking Ms Moss, but accepted that he must have done so. Mr Pybus also told the court that during the course of their relationship Ms Moss had encouraged him to strangle her during consensual sex. The court heard a similar account from a long-term partner of Ms Moss’s who was not named.

The court also heard a pathologist’s report stating that the amount of pressure applied to Ms Moss’s neck was towards the lower end of cases which resulted in death. There were no other signs of injury or violence. 

In sentencing, Judge Paul Watson KC said he accepted that Mr Pybus did not intend to kill Ms Moss and that his remorse was genuine. Mr Pybus was sentenced to four years and eight months in prison, reduced from a starting point of seven years for his early guilty plea.

The MP’s complaint and the AG’s review

Various campaigners and public figures have called for Mr Pybus’s sentence to be reviewed as unduly lenient. Labour MP Harriet Harman recently wrote to the Attorney General (AG) to encourage him to refer the case to the Court of Appeal.

Ms Harman’s letter said: “This sentence fails to reflect the gravity of the crime, the impact of her death on her family including her two young children, his sole culpability for her death, his cynical shifting of the responsibility from himself to her and sends out the message that killing your girlfriend during sex is a minor matter.”

The AG’s Office has confirmed that as a result of this request the case will now be reviewed under the Unduly Lenient Sentence Scheme.

Was the sentence unduly lenient?

A sentence is unduly lenient “…where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.” Attorney General’s Reference (No 4 of 1989) 11 Cr. App. R. (S) 517.

CPS guidance notes that “There must have been some error of principle in the judge’s sentence, such that, in the absence of the sentence being altered by the Court, public confidence would be damaged. The court should only grant leave in exceptional circumstances, and not in borderline cases.”

Unlawful act manslaughter sentencing

Mr Pybus was charged with unlawful act manslaughter, which occurs when the accused intentionally commits an unlawful and dangerous act from which death inadvertently results.

As set out in the sentencing guideline, the offence category for unlawful act manslaughter is determined entirely by the offender’s level of culpability, as the level of harm (namely loss of life) “will inevitably be of the utmost seriousness.” The starting point for a high culpability case (Category B) is 12 years’ custody while the starting point for a medium culpability case (Category C) is 6 years’ custody.

Although the sentencing remarks for the case have not been made public, it has been reported that Mr Pybus was sentenced to 7 years before the reduction for his early guilty plea. It is therefore most likely that his case was deemed medium culpability with an increase for the aggravating factor of committing the offence under the influence of alcohol.

Determining culpability

In determining the appropriate culpability category, the judge will have had to have considered Mr Pybus’s state of mind and, in particular, the extent to which he knew or should have known the level of risk involved.

In cases where “death was caused in the course of an unlawful act which carried a high risk of death or GBH which was or ought to have been obvious to the offender” the appropriate category for sentencing is Category B, high culpability. In cases “where death was caused in the course of an unlawful act which carried an intention by the offender to cause harm (or recklessness as to whether harm would be caused)” the appropriate category for sentencing is Category C, medium culpability.

In short, the sentencing court would have had to decide: was it, or should it have been, obvious to Mr Pybus that the act carried a high risk of death or grievous bodily harm (GBH)? Or was Mr Pybus merely reckless as to whether some level of harm would be caused?

It was in determining this question that issues of consent and previous sexual conduct between the parties became potentially relevant. This has attracted the particular ire of some campaigners who have called this a “failed test case” for the new “rough sex defence” law.

The “Rough Sex Defence” and the Domestic Abuse Act 2021

At first glance, it might seem that recent legislation addressing the so-called “rough sex defence” would be relevant here. Section 71 of the Domestic Abuse Act 2021 makes clear that a person cannot consent to the infliction of serious harm (or death) for the purposes of obtaining sexual gratification.

However, this principle is simply not applicable in this case. Although the court did hear evidence regarding Ms Moss’s purported consent to strangulation during sex on previous occasions, Mr Pybus did not attempt to put forward a defence of consent to the underlying assault. He pleaded guilty to unlawful act manslaughter, accepting that it was an unlawful act for him to strangle Ms Moss, regardless of what she may or may not have consented to.

As such, this evidence was not put forward in support of any potential defence to manslaughter. It was put before the court at the time of sentencing to help assess the level of Mr Pybus’s culpability. In particular, this evidence could have assisted the judge in determining the critical question of whether it “should have been obvious” to Mr Pybus that the act of strangling Ms Moss carried a high risk of death or GBH.  

Should it have been obvious that the act carried a high risk of death or GBH?

A template letter for those asking the AG’s office to review the sentence in this case submits that: “It ought to be obvious to anybody that strangulation carries a high risk of death or GBH.” The position, in effect, is to urge that all strangulation manslaughter cases be considered high culpability, arguing that strangulation by its very nature carries a high risk of death or serious harm.

But consider the other evidence in this case. The pathologist’s report indicated that the amount of pressure applied was at the lower end of strangulation cases that result in death. There was no indication of any other injury or violence. And there was evidence from both Mr Pybus and another partner that Ms Moss had previously consented to being strangled during sex, apparently without incurring any serious harm. Given those facts, it may well have been reasonable for the court to conclude that it should not have been obvious to Mr Pybus that there was a high risk of death or GBH.

There are other factors in this case which could arguably have weighed towards a finding that Mr Pybus knew or should have known of the high level of risk. He gave evidence that his hands were hurting after the incident, which could indicate a prolonged duration of strangling. He had consumed a very high level of alcohol, and perhaps it should have been obvious to him that engaging in this activity after drinking heavily was significantly more dangerous. However, the fact that the sentencing judge could have drawn different conclusions from the evidence before him is not generally sufficient to amount to an error in principle justifying the alteration of a sentence.

In considering whether to refer Mr Pybus’s sentence to the Court of Appeal, the AG will undoubtedly be carefully considering all of these issues, as well as the words of Lord Lane regarding unduly lenient sentences:

“…it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency itself is not a vice. That mercy should season justice is a proposition as soundly based in law as in literature.” Attorney General’s Reference (No 4 of 1989) 11 Cr. App. R. (S) 517.

Conclusion

Manslaughter sentencing is an inherently challenging exercise. The potentially significant disparity between the offender’s level of culpability and the degree of the harm done makes it difficult to determine what constitutes a truly just outcome. Victims’ families and the public are often left unsatisfied with sentences that are seen as failing to reflect the true magnitude of the tragic loss of a person’s life.

These issues are only exacerbated in cases involving violence against women. There is undeniably a long history of failure by the criminal justice system to respond adequately to offences of violence against women, a fact recognised by the Government’s recent call for evidence from those with experience of or views on violence against women and girls and the recent passage of the Domestic Abuse Act 2021. There are always difficult evidentiary issues in cases where the conduct at issue takes place in private, and never more so than when one of the parties dies.

Nonetheless, it is the role of the criminal law to consider an individual offender’s personal level of culpability. An individual should not become a stand-in for historic wrongs, no matter how galling—justice in each case must be meted out based on the merits of that case alone.

Vanessa Reid is a barrister at Carmelite Chambers specialising in criminal defence and is frequently instructed in cases of serious assault and violence. She has a long-standing interest in the impact of the criminal justice system on women, and was a founding advisor to Essie Justice Group, a US-based charity dedicated to women with incarcerated loved ones.