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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Nesfield, R. v [2025] EWCA Crim 233 (26 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/233.html Cite as: [2025] EWCA Crim 233

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT YORK
HER HONOUR JUDGE SHERWIN 12NY1027424

Reference by the Attorney General under s.36 Criminal Justice Act 1988

		Royal Courts of Justice Strand London WC2A 2LL
		26 February 2025

LORD JUSTICE SINGH:

Introduction

1. This is an application by His Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 ("the 1988 Act") to refer a sentence to this court on the ground that it was unduly lenient.
2. On 24 October 2024 in the Crown Court at York, the Respondent Offender pleaded guilty to three offences (counts 1, 9 and 10 on the indictment). Counts 2, 3, 4, 5, 7 and 8 (which were offences of assault occasioning actual bodily harm), count 6 (which was an offence of intentional strangulation) and count 11 (which was an offence of damaging property) were ordered to lie on the file on the usual terms.
3. On 4 December 2024, the Offender (now aged 28) was sentenced by Her Honour Judge Sherwin as follows:

• On count 1, an offence of controlling or coercive behaviour in an intimate or family relationship, contrary to section 76(1) and (11) of the Serious Crime Act 2015, there was a sentence of 27 months' imprisonment.

• On count 9, which was an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, there was a concurrent sentence of 12 months' imprisonment.

• Finally, on count 10, which was an offence of unlawful wounding, contrary to section 20 of the 1861 Act, there was a concurrent sentence of 12 months' imprisonment.

Accordingly, the total sentence was 27 months' (2 years and 3 months') imprisonment. An appropriate surcharge order was made and a restraining order was made for 5 years.

The Facts

4. The facts are set out in detail in the Final Reference before this court and are not materially in dispute. They can be summarised as follows for present purposes.
5. The Offender was in a relationship with the victim, 'AB', for approximately 10 years. They had two children together. From 2021 the relationship changed. Between 2021 and July 2024 the Offender repeatedly subjected AB to serious violence. This took the form of numerous assaults, where AB would be punched, grabbed by the throat or hair and have items thrown at her. This offending was reflected in an overarching count of controlling and coercive behaviour.
6. Two particular incidents in July 2024 involved the Offender seriously assaulting AB, whereby she was punched to the head. These were the subjects of counts 9 and 10. Some of this abuse - notably the final incident - happened in front of their children, who were by now aged 1 and 7. Following the assault on 22 July 2024, AB finally reported matters to the police and the Offender was arrested.
7. He was interviewed under caution. His solicitor provided a prepared statement. This denied that the Offender had abused AB. He accepted an altercation had occurred on 22 July but claimed he only acted in self-defence after AB had threatened him. The Offender then answered a mixture of comment and no comment to questions that followed.
8. On 24 July 2024 the Offender was charged with a number of offences. He appeared before York Magistrates' Court. He did not plead guilty to any of the offences and the case was sent to the Crown Court for trial, with the Offender remanded in custody.
9. The case was listed for a plea and trial preparation hearing ("PTPH") on 19 August 2024 at the Crown Court at York. Those representing the Offender indicated that pleas would be offered but applied for an adjournment for instructions to be confirmed. This application was granted and credit for plea was preserved.
10. The case was next listed on 10 October 2024. By this point the indictment reflected a count of controlling and coercive behaviour (count 1), seven counts of assault occasioning actual bodily harm, one count of intentional strangulation, one count of unlawful wounding and one count of criminal damage. These counts reflected specific incidents within the overall period reflected in count 1. At this hearing, defence counsel confirmed that pleas to counts 1, 9 and 10 were being offered. It was said that the plea to count 1 would be on the basis of accepting all alleged incidents of violence but not the particularised elements of the Offender controlling AB's finances or preventing her from getting a driving licence. The case was adjourned for the prosecution to consider this.
11. On 16 October 2024 the prosecution confirmed that those pleas would be acceptable.
12. The case was listed again on 24 October 2024, whereupon the Offender was arraigned. He pleaded guilty, as we have said, to counts 1, 9 and 10. The conditionality of the plea to count 1 was not, however, reduced to a written basis of plea. Sentence was adjourned and a pre-sentence report was ordered.
13. The case was then listed for sentence on 4 December 2024, resulting in the sentences to which we have already referred.

The sentencing process

14. The Offender was born on 9 November 1996 and is now aged 28. He has a single previous conviction for an offence of assault with intent to resist arrest. This was committed on 25 August 2022 and disposed of by way of a fine. He also has a caution for three offences committed on 5 March 2021 for fraudulent use of a vehicle registration mark, a Public Order Act offence and resisting/obstructing a police constable.
15. The sentencing court had before it, as do we, a Pre-sentence report. This referred to various matters, including the offender's mental health. It said he had been diagnosed with Emotional Dysregulation and ADHD. Since being in custody he had been prescribed antidepressants. Whilst regretting his actions, the author concluded that he had failed to demonstrate a real understanding of the impact of his behaviour on AB and their children. The author assessed the Offender as posing a medium risk of reoffending. He presents a high risk of serious harm to AB and their children and a high risk of serious harm to the public in general were he to enter a new relationship. There was also a finding of risk of harm to himself given the disclosure of previous suicide attempts.
16. In addition, the court was provided with a Liaison and Diversion Court Report. This confirmed that the Offender had been known to the local NHS Trust since 2015. This included contact with Mental Health Services. There was no current indication of the need for assessment under the Mental Health Act 1983 or any period of in-patient treatment.
17. The court also had a victim personal statement from AB. In this detailed account she described the gradual decline in their relationship that followed several happy years. She described trying to help the Offender with his difficulties but having a sense of inadequacy as she felt to blame when he did not improve. She also referred to how she would lie to others about her visible injuries. Towards the end of their time together she reached the point of ordering a rope to be used in a suicide attempt. This was indicative of how trapped she felt. In terms of her condition now, she referred to struggling with sleep and her diet due to ongoing anxiety. She was under assessment for PTSD and possible medication to treat the symptoms. She also referred to the impact on their older child, saying he had been anxious about coming home and has needed therapy and extra support at school. Their younger child has also struggled, her sleep being affected and needing extra care at nursery. AB said that she wants to move house because the family home she shared with the Offender haunts her and the children have memories of the abuse she suffered.
18. The maximum sentence for each of the relevant offences is 5 years' imprisonment. There are relevant offence-specific guidelines issued by the Sentencing Council, in particular one on Controlling and coercive behaviour in an intimate or family relationship which took effect on 1 October 2018. We will return to that later. Also relevant are overarching guidelines, in particular the guideline relating to Domestic abuse: overarching principles.
19. The prosecution submitted, by reference to the guideline on Controlling and coercive behaviour, that this was a culpability A case due to the conduct being intended to maximise fear or distress and the offending being persisted in over a prolonged period. In respect of harm, the prosecution submitted that it fell into category 1, given there was fear of violence on many occasions and very serious alarm or distress which had a substantial adverse effect on the victim. The defence took no issue with that categorisation. It would appear that the judge implicitly adopted that classification. The guideline recommends for a category 1A case a starting point of 2 years 6 months' custody, giving a category range of 1 to 4 years' custody.
20. The judge decided to make count 1 the lead offence and determined that the other two counts were continuations of a course of behaviour which the Offender had carried out against his partner over the course of some three-plus years. The judge explicitly stated that the sentence on count 1 would therefore be aggravated to reflect the other offences. She said that what she proposed to do was to treat the controlling and coercive behaviour as being the main offence, as that covers violence over a number of years, and then treat the other two offences as aggravating features of that. The judge indicated that a notional sentence after trial would have been passed of 3 years' imprisonment to reflect all the offending. From that, the judge deducted 25 per cent as credit for plea. That resulted in the final sentence which we have mentioned of 2 years 3 months' imprisonment.
21. No complaint is made by either party as to the amount of credit given for the guilty pleas.

Submissions for the Solicitor General

22. On behalf of the Solicitor General, Mr Hookway submits that the starting point selected by the judge of 3 years' imprisonment, before credit for plea, failed adequately to account for all the offending in this case, taken with the aggravating features which were relevant to count 1 even if taken alone. He makes the following particular submissions.
23. First, the starting point for count 1 should have been increased from the recommended starting point of 2 years 6 months to take account of the following features.

(1) The persistence of the behaviour over a prolonged period. The offending spanned 3 years and within that there were at least nine separate incidents. Whilst this factor contributed to the categorisation within category 1A, it also justified further upward adjustment. We do not accept that argument. As Mr Hookway fairly acknowledged at the hearing before us, it was not his best point.

(2) The nine incidents referred to involved not just fear of violence but the actual infliction of it. For an offence of this kind, the harm was therefore very high.

(3) The impact of the offence on others, particularly the Offender's children, which is a specific factor within the offence guidelines.

24. Secondly, Mr Hookway submits that counts 9 and 10 reflected distinct offences of serious violence in their own right. Each was aggravated by it being committed in the context of ongoing domestic abuse, and in respect of count 10 was seriously aggravated by the presence of the children. He reminds this court that the Totality guideline indicates that offences of this kind can merit a consecutive element because "the overall criminality will not sufficiently be reflected by concurrent sentences". Nevertheless, he acknowledges that how the sentence was structured was primarily a matter for the sentencing judge. He submits, however, that if there were to be concurrent sentences then the notional sentence after trial had to be much longer than 3 years in order to reflect the overall gravity of the offending.
25. Next, Mr Hookway submits that an increase from the starting point for count 1 of just 6 months failed to account for the seriousness of this offence taken with the separate offending reflected in counts 9 and 10.
26. Finally, Mr Hookway submits that the notional sentence before credit should accordingly have been either towards the top end of the category range for a category 1A offence or even above that range.

Submissions on behalf of the Respondent

27. On behalf of the Respondent, Mr Flint submits that the starting point of 3 years after trial was not unduly lenient in view of the substantial mitigation available to the Offender in this case. In particular he submits:

• First there was significant remorse demonstrated both through the Pre-sentence report and the letter written by the Offender to the court. We have reason to doubt whether that is a sufficiently adequate summary of the contents of the Pre-sentence report.

• Secondly, he emphasises the Offender's mental health issues. These were diagnosed mental disorders and he had a troubled history which included a number of concerted suicide attempts.

• Thirdly, he submits that the Offender has taken steps to address his offending behaviour whilst he has been in prison, including the taking of courses and employment.

• Fourthly, he emphasises that there have been demonstrated steps taken by the Offender to address his mental issues within prison.

• Fifthly, he reminds this court that our prisons are overcrowded.

28. Mr Flint submits that the judge was well aware of the Totality guideline and made direct reference to it. Having heard all the evidence, considered the victim personal statement and heard the mitigation she was well placed to determine that aggravated sentences would properly reflect the overall criminality of the Offender.
29. Although Mr Flint accepts that if counts 9 and 10 both had standalone starting points if taken in isolation, the judge was then entitled to stand back and consider totality in this way. Mr Flint reminds this court that the Attorney General's system is necessary to correct a "gross" error: see Attorney-General's Reference No 132 of 2001 (Johnson) [2003] 1 Cr App R (S) 41.
30. In conclusion, Mr Flint submits that for a sentence to be considered unduly lenient is a high bar, and while the sentence in this case could be regarded as being lenient, that high bar has not been overcome.

Our assessment

31. We acknowledge that the judge in this case was faced with a sentencing exercise which was far from easy. We also bear in mind the well-established principles that this court must apply when considering an application under section 36 of the 1988 Act, in particular that it is not the role of this court simply to sentence the offender again as if we were the court at first instance. Nevertheless, we have reached the respectful conclusion that the total sentence in this case was unduly lenient. Although it was a matter for the sentencing court how to structure the sentence and it was open to the judge to make the sentences concurrent rather than consecutive, the sentence on count 1 required a much higher uplift so as to reflect the true gravity of the overall offending. This could not be done simply by adding up the individual sentences that would otherwise have been appropriate since the principle of totality has to be respected, but it did require an increase so as to make the total sentence just and proportionate. In our judgment that would have a required a notional sentence after trial at the top of the category range for a category 1A offence (that is, 4 years' custody). With credit for the guilty pleas of 25 per cent, the sentence that should have been imposed is 3 years' imprisonment. There is no need to alter the other sentences, which will remain concurrent as we have increased the main sentence on count 1 in order to reflect the principle of totality.

Conclusion

32. For the reasons we have given, we grant the Solicitor General's application under section 36 of the 1988 Act. On count 1 we substitute a sentence of 3 years' imprisonment.

May I check if there is anything else?

MR HOOKWAY: No. Thank you very much, my Lord.

MR FLINT: My Lord, no, other than for the Respondent's benefit. Because of administrative difficulties with whether I was attending in person, I did not have a conference with him beforehand. I simply wanted to let him know that the solicitors will arrange a conference with him in the next couple of days.

LORD JUSTICE SINGH: Okay.

MR FLINT: I am grateful.

LORD JUSTICE SINGH: Thank you very much. Thank you both for your assistance.