Jersey Unreported Judgments

Reference by HM Attorney General under Article 45A of the Court of Appeal (Jersey) Law 1961

[2025] JCA 093

Court of Appeal

4 April 2025

Before     :

Sir Timothy Le Cocq, Bailiff of Jersey, President; Ms Clare Montgomery, KC, and; Mr Michael Furness, KC..

His Majesty's Attorney General

-v-

Terence Michael Tremarco

L. Sette Esq., Crown Advocate.

Advocate G. F. Herold-Howes for the Respondent.

JUDGMENT

FURNESS JA:

1.        This is the judgment of the Court.

2.        This is an appeal by His Majesty's Attorney-General, brought under article 45A of the Court of Appeal (Jersey) Law 1961. This article permits the Attorney General to refer a sentence passed by the Royal Court for review by the Court of Appeal if the Attorney General considers that the sentence was "unduly lenient". Permission was granted to the Attorney General to bring this appeal by Montgomery JA, sitting as a single judge of this Court, on 20 November 2024 (AG v Tremarco [2024] JCA 256.

3.        The sentence under review on this appeal was handed down by the Royal Court (Commissioner Sir William Bailhache sitting with the Superior Number) on 9 September 2024 (AG v Tremarco [2024] JRC 182), after the Respondent had pleaded guilty to 10 counts of assault, nine of which were grave and criminal assaults.  The sentence passed was 456 hours of community service for the last count (which was regarded as the most serious) with lesser periods of community service for the other counts, running concurrently. The Crown had recommended a sentence of 5 years imprisonment, which is the sentence for which it contends on this appeal. The Respondent was also made the subject of a five-year restraining order, which is not the subject of this reference.

Details of the offences

4.        All of the offences were committed by the Respondent in Jersey between 1994 and 2000. In each case the victim of the offence was the Respondent's then wife ("the Victim"). After the final assault the Respondent left the Island to live in England. He returned briefly in 2007. During that visit the Victim reported his assaults to the police for the first time. The Respondent left the Island again before the police could interview him. He returned again in 2023, at which point he was interviewed under caution. Following this he was arrested and charged. He was indicted on 26 April 2024 and entered guilty pleas to all counts. He was remanded in custody until the sentencing hearing on 9 September 2024.

5.        We set out below the facts relevant to the Respondent's offences. This summary is taken largely from the Attorney General's written submissions, with which the Respondent has helpfully stated he does not take issue.

Counts 1 to 3

6.        These assaults took place between 1994 and 1995, while the Respondent and the Victim were living at a flat on the Esplanade.

Count 1    After a night out together, the Respondent returned early, and the Victim returned in the early hours of the morning. When the Victim returned, the Respondent was enraged, screaming, "Where have you fucking been?" The Victim said she had never seen him so angry. He punched her in the head repeatedly and pushed her to the floor. He took hold of her hair and continued to punch her in the head and kick her as she lay on the floor. He carried on until he had exhausted himself. The Victim suffered bruises on her head, back and legs.

Count 2    Later in 1994, the Respondent and the Victim again went out with friends and the Victim again stayed out later than the Respondent. When she got home the Respondent screamed at her and punched her repeatedly. She went to the ground and he tried to punch and kick her. She fought back on this occasion, and he stopped. She suffered bruises.

Count 3    In summer 1995 the Victim found a woman's earring in their bed and she and the Respondent argued about it. The Respondent said it belonged to a woman whom his friend had brought back to the flat. They went for a drink with the friend whom the Respondent had named, and the Victim asked about the woman and her earring. The Respondent told her to "shut up" and stormed out of the pub. The Victim returned home and the Respondent attacked her. He pinned her up against a wardrobe by her throat, shouting at her for embarrassing him in front of his friend. The Respondent punched her repeatedly in the head and back. One blow missed and hit the wardrobe with such force that the door was knocked off its hinges. The Victim said later, "till the day I die I will never forget the beating I took that day". She thought the assault would never end.

Counts 4 and 5

7.        These assaults took place in 1997 at the then home of the Respondent and the Victim in West Park Ave St. Helier.

Count 4    In September of that year, the Victim agreed to meet the Respondent in a pub but instead went to a house party with friends. She encountered the Respondent at a nightclub later that night and he was angry. When they returned home she made sure her friend came back with them because she was worried about his reaction. The Respondent waited until the friend left, then screamed abuse at the Victim for "leaving [him] stood there like a fucking prick". He dragged her on to the floor by her hair, called her a bitch and kicked her and stamped on her. She ran to her friend's house. Her lip and cheek were cut and bleeding and she had bruises to her face. After this attack, the Victim stayed at a friend's house for a week, but the Respondent persuaded her to return.

Count 5    The Respondent and the Victim were at home when she asked him to stop answering phone calls so that they could have dinner. He was furious and punched her hard in the ear. He kept punching her. The Victim was screaming and trying to get out of the flat. He kept pulling her back and hitting her. She managed to get away.

Count 6

8.        This assault took place in March 1998, when the Respondent and the Victim lived in a flat on Great Union Road.

Count 6    The Respondent and the Victim went out with friends and the Victim stayed out later than the Respondent. When she got home, the Respondent screamed at her, demanding to know where she had been. He started to punch and slap her, screaming, "you fucking slag". He got astride her and put his hands around her throat. She could still breathe but thought that he was going to strangle her and that she was going to die. She managed to get away. He ran after her and she went to the floor. He kicked her repeatedly, screaming, "You fucking slut". The next day the Victim said she wanted a divorce, but again the Respondent persuaded her to stay with him.

Counts 7 to 10

9.        The assaults forming counts 7 to 10 took place when the Respondent and Victim lived at a flat on Vauxhall Street between 1998 and 2000.

Count 7    In late 1998 the Victim and the Respondent went out with friends. The Victim stayed out later than the Respondent. She returned earlier than would have wished as she was too nervous of the Respondent to stay out any later. She got undressed and got into bed with him. The Respondent screamed at her, "where have you fucking been?". He hit and slapped her in the head, shouting all the while. He kept hitting her. He straddled her, sitting on her waist. He put his hands around her neck and started strangling her with force. He pressed on her windpipe and she could not breathe. She thought that she was going to die. She managed to break free and tried to hide in the spare room. He pulled her out, dragging her on her knees through the hallway and into the sitting room. She felt humiliated as she was naked. He threw her over a low table. She got to her feet and he took hold of her head and began striking her head against the wall. He stopped and went to bed. The Victim sat up awake all night.

Count 8    The Respondent again strangled the Victim when they were in bed. He got on top of her and pinned her down by the arms and shoulders with his knees. She could not push him off. He had both hands around her neck for about 30 seconds, so tightly that she could not speak or scream. She thought that he was going to kill her.

Count 9    In summer 2000, the Respondent and Victim returned home after a night out. As they approached the front door of their flat through a shared hallway, the Respondent grabbed the Victim by the throat and pushed her up against the wall. He punched her in the face several times. Her head was banging off the wall and she was screaming. The landlord shouted down the stairs and the Respondent stopped. He shouted back that everything was all right. He opened the front door and they went inside. The Victim was in shock and could not understand why the Respondent had attacked her.

Count 10 The Respondent and the Victim went out for the evening, and the Respondent went home early. The Victim went back to the flat later on. The Respondent got out of bed, shouting, "Where the fuck have you been?" He punched her in the face and she fell to the floor, screaming. The Respondent "absolutely lost it" (in the words of the Victim) and started kicking and stamping on the Victim, screaming that she was "a fucking slut". He dragged her into the sitting room by her hair and punched her in the head and body, screaming, "Die, fucking die". She kept trying to get up from the floor but he pushed her down, shouting, "Fucking die". She was terrified and thought that he was going to kill her. She managed to get out of the flat and sat on a wall outside, waiting for the Respondent to calm down so she could go inside and get her things. When she went back inside, however, the Respondent attacked her again. He grabbed her hair, pulled her to the floor and started kicking her in the head. He was screaming at her. She got up but he punched her hard in the face and she fell to the floor. When she regained consciousness, she was on the ground in the street outside the flat, covered in blood. She managed to walk to a friend's house. She had a deep cut above her eye and her clothes were covered in blood. Her friend said, "I will never forget the state of her eye ... It was swollen more than I ever would have thought possible. It seemed to have swollen an inch from her face". The Victim would not let her friend take her to hospital. She called the Respondent the next day and asked why he had assaulted her. He said that he did not know and ended the call. She went back to the flat and he said that he had wanted her dead. The victim saw her GP and said that her husband had beaten her up the previous night. Her left eye was swollen and she had a 2cm laceration on the left upper eyelid.

10.     A few days after the assault which is the subject of Count 10, the Respondent told the Victim he needed to get away. He left the Island for London and did not return (apart from a brief visit in 2007) until 2023.

The Victim Impact Statement

11.     The Royal Court had before it a victim impact statement made by the Victim in August 2024. This sets out clearly the serious mental trauma suffered by the Victim, both during the time she was living with the Respondent and in the years since he left. She has been diagnosed with acute complex post-traumatic stress syndrome. It has taken her many years of counselling to address the psychological impact of the Respondent's conduct, and even now it is clear that it exerts a significant impact on her life. Happily, she remarried in 2023, but she says that for twelve years before her marriage she was still afraid that her new husband would beat her up if she married him.

12.     The Respondent's return to Jersey in 2007 caused the Victim acute fear and distress, as did his return in 2023, notwithstanding the passage of time and the therapy she had received in the intervening period. She is still today suffering traumatic flashbacks and memories. As she says "I had been pulled right back into living this nightmare again." She remains terrified at the prospect of meeting the Respondent again.

13.     The Victim also refers to her physical injuries, which have been summarised in the account of the offences given above, and her permanent scars which she says consist of:

(i)        a permanent scar approximately an inch long on her left eye under her eyebrow.

(ii)       a permanent scar on her left cheek approximately half inch long.

(iii)      a permanent scar on her right eye, under her eyebrow approximately half inch long.

(iv)     permanent scarred tissue on her top lip that has left her with an uneven top lip.

(v)      a gash on the back of her head where the Respondent had kicked her.

The Pre-sentence Report

14.     The Royal Court also had the benefit of a Pre-sentence Report from the Probation Service dated 28 August 2024. This concluded that the Respondent was -

"currently assessed as a low risk of reconviction both generally and within a domestic context. This assessment is based on the presence of numerous protective factors and positive relationships he has maintained since 2000."

15.     The "protective factors" cited by the Report are that the Respondent has a limited conviction history and has not committed any offences for 27 years. He has no previous record of violence and has a good employment history. A supportive family, a positive circle of friends, good education and the absence of current substance misuse issues are also cited. The Respondent is found to have pro-social attitudes, including insight into the consequences of domestic abuse. The reference to positive relationships is a reference to a number of statements by friends, and to three in particular from women with whom he has had, or currently has a relationship since leaving Jersey in 2000. All of these statements paint a very positive picture of the Respondent's character and behaviour. His current partner's description of him as "kind, caring, and compassionate" is typical. We have no reason to doubt the genuineness of these testimonials; it does appear that the Respondent has turned his life around completely so far as his personal relationships are concerned since he left Jersey in 2000.

16.     The Respondent's acceptance of responsibility for his offending is also described in the Report. He is recorded as saying:

"Although he accepts that there was domestic abuse within their relationship, he does not believe the abuse was as severe as described by his ex-wife. Nonetheless, he told Police Officers that if she claims it happened, then it did."

He is recorded as expressing himself as being "sick and disgusted with himself". He attributes his behaviour to immaturity and his misuse of drugs and alcohol at the time. He claims that he has never assaulted another woman, either before or after this relationship.

Mitigating factors

17.     As appears from the sentencing judgement, there were a number of mitigating factors which strongly influenced the Royal Court in favour of a non-custodial sentence. In summary these were:

(i)        The delay since the offences were committed, coupled with the Respondent's change of lifestyle in the intervening period.

(ii)       The fact that the Respondent has committed no offences in that period

(iii)      The remorse which the Respondent has expressed for his actions, coupled with his acceptance of the accuracy of the Victim's account of the offences.

(iv)     The fact that he pleaded guilty to the offences, and thus spared the Victim the ordeal of a trial.

The sentencing judgment

18.     The Royal Court's reasons for the sentence it imposed are set out in judgment given by the learned Commissioner at the sentencing hearing.

19.     The Commissioner summarised the nature of the offences. He observed, in paragraph 3, that

" the courts wish to send out the strongest message that domestic abuse will not be tolerated."

He then referred to the mitigating circumstances which we have outlined above, which he summarised as follows:

"The most important parts of this are:

(i)        Your acceptance, at the time, that you had to do something to control your own emotions which you did by leaving the Island and thus the Complainant.

(ii)       The fact that you have not committed any similar abuse in your subsequent relationships with your cohabitees, and the references we have seen from them and your own obvious remorse.

(iii)      The length of time since the offending took place which is relevant because it emphasises the lack of any similar abuse in subsequent relationships.  Otherwise it does not hold very much relevance for us.

(iv)     And finally, the very valuable guilty plea, the remorse that we have mentioned and the fact that you are assessed at low risk of reoffending in the future."

20.     The rationale for the sentence imposed appears in paragraphs 11 to 14 of the sentencing judgment:

"11     This case does bring into sharp focus the different rationales for imposing sentence - punishment, deterrence or rehabilitation. We do not think there is any need for your rehabilitation in this case. Your conduct over the last 24 years and, indeed, your own acceptance that you needed to remove yourself from the situation in 2000 shows that. The fact that you did reach that conclusion in 2000 is, we think, very relevant.

12.      Nor are we completely convinced that the deterrence factor is necessarily appropriate - for the same reasons, as far as you personally are concerned, that rehabilitation is unnecessary, and for others because deterrence usually works when there is an opportunity to consider with a cool head what is going to happen in advance. Deterrence tends not to be so important where people act in heightened emotional stress.

13.      The sentence that we are now imposing is imposed for the purposes of retribution or punishment. By a majority this Court thinks that the sentence be met by a severe non-custodial penalty in the unusual circumstances which apply. I say by a majority because two Jurats have been in favour of a custodial sentence. They feel that it is essential to mark your conduct with a prison sentence and because of the unusual constitution of the Court in this respect I want to make clear that this was not a gender specific conclusion and the two Jurats are not the two lady Jurats who are sitting. However, the majority feel that the appropriate custodial sentence that would be imposed in the light of the fact that you have already served a period of imprisonment on remand would be an insufficient penalty and that a non-custodial Community Service Order would in fact amount to a more serious penalty and they think that is important in the context of your offending.

14.      For these reasons you are sentenced on Count 10 of the Indictment to perform 456 hours of community service with a custodial sentence in lieu of 3 years' imprisonment."

The jurisdiction under article 45A

21.     Article 45A applies, inter alia to any offence for which the Respondent is liable to a term of imprisonment of one year or longer, so it is clearly applicable to the present case. Articles 45A(3) and (4) read as follows:

"(3)     If it appears to the Attorney General -�

(a)     that the sentencing of a person in any proceedings in the Royal Court has been unduly lenient; and

(b)     that the case is one to which this Article applies,

the Attorney General may, with the leave of the Court of Appeal, refer the case to the Court of Appeal for it to review the sentencing of that person.

(4)     Without prejudice to the generality of paragraph (3), the condition specified in sub-paragraph (a) of that paragraph may be satisfied if it appears to the Attorney General that the Royal Court -�

(a)     erred in law as to its powers of sentencing; or

(b)     failed to impose a sentence which it was required by law to impose."

22.     In AG v Kittleson [2011] JCA 052 this Court considered what it meant to conclude that a sentence was "unduly lenient". Sir John Nutting JA, giving the judgement of the Court, quoted with approval from three earlier judgments of the Court of Appeal of England and Wales, which dealt with the equivalent legislation in that jurisdiction. The first was Attorney General's Reference (No 4 of 1989) (1990) 90 Cr. App. R. 366, where Lord Lane LCJ said this:

"The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased -- with all the anxiety that this naturally gives rise to -- merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases. However 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 is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature."

23.     In connection with this passage, Sir John Nutting observed (at paragraph 44 of his judgment) that Lord Lane's reference to the trial judge in the penultimate sentence of that passage applies with equal force to the Jurats in this jurisdiction.

24.     The second passage referred to in Kittleson was Attorney General's Reference (No. 132 of 2001) (Bryn Dorian Johnson) [2002] EWCA 1418, where Potter LJ said this:

"... we think it right to add that, despite having found that the sentence imposed was unduly lenient, there is a line to be drawn, and which should be born in mind, between the leniency of a sentence in any given case and a sentence which is "unduly" lenient in the words of the statute .... The purpose of the system of Attorney General's References in particular cases seems to us to be the avoidance of gross error, the allaying of widespread concern at what may appear to be an unduly lenient sentence, and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type."

25.     Finally in Kittleson, reference was made to a short passage from the judgment of Lord Philips of Worth Matravers in Attorney General Reference Nos. 31, 45, 43, 42, 50, and 51 of 2004 [2005] EWCA Crim. 1934 at paragraph 3, where he said:

" ..... this Court will not interfere with a sentence on an Attorney General's reference unless it is manifestly not sufficiently severe."

26.     While the passages quoted above state the issue to be determined in slightly different language, we do not consider that there is any inconsistency, and we find the general thrust of the previously decided cases is clear. Like the Court in Kittleson, we do not find it necessary to reformulate the issue in our own words.

The Crown's case

27.     At the heart of the Crown's case is the simple proposition that having regard to the seriousness of the offending, a significant custodial sentence is the only appropriate response to the conduct admitted by the Respondent. It points to the fact that the Respondent breached the Victim's trust by attacking her in her own home. He used a significant degree of violence which escalated as time went by. The manual strangulation in counts 6 to 8 carried with it a serious risk of death. And the threatening words uttered by the Respondent, including threats to kill the Victim, left her in reasonable fear of her life. The offending carried on over a period of some six years. The Crown also relies on the ongoing psychological harm to the Victim.

28.     The case of Coelho v AG [2020] JRC 216 is cited as showing that even a single serious offence of domestic violence is capable of attracting a significant custodial sentence (in that case two years).  The Crown also prays in aid the current sentencing guidelines on domestic violence published by the Sentencing Council for England and Wales. Although these guidelines are not binding on the Courts in Jersey, they can form a useful cross-check to any sentencing decision in this jurisdiction. The Guidance explains why domestic violence offences are so serious at paragraphs 9 and 10:

"9       The domestic context of the offending behaviour makes the offending more serious because it represents a violation of the trust and security that normally exists between people in an intimate or family relationship. Additionally, there may be a continuing threat to the victim's safety, and in the worst cases a threat to their life or the lives of others around them.

10       Domestic abuse offences are regarded as particularly serious within the criminal justice system. Domestic abuse is likely to become increasingly frequent and more serious the longer it continues, and may result in death. Domestic abuse can inflict lasting trauma on victims and their extended families, especially children and young people who either witness the abuse or are aware of it having occurred. Domestic abuse is rarely a one-off incident and it is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damaging effect on the victims and those around them."

29.     The Guidelines refer to potential mitigating factors of particular relevance in such cases:

(i)        Positive good character - as a general principle of sentencing, a court will take account of an offender's positive good character. However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender's good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour.

(ii)       Evidence of genuine recognition of the need for change, and evidence of obtaining help or treatment to effect that change.

30.     Starting from a position that a significant custodial sentence is required, the Crown then submits that the mitigating factors relied on by the Respondent are insufficient to justify a departure from a custodial sentence. The Respondent's rehabilitation in the years following the offence does not, in the Crown's view, mean that the essential character of the offences becomes less serious. The Crown notes that good character displayed outside the domestic context may count for less in domestic violence cases, as appears from the extract from the Sentencing Guidelines quoted in the previous paragraph. It is submitted that too much weight was accorded to mitigating factors by the Royal Court.

31.     The Crown also criticises three specific aspects of the Royal Court's reasoning in the sentencing judgment. The first is the way they used a community service order in this case. Under article 4 (2)(b) of the Criminal Justice (Community Service Orders) (Jersey) Law 2001 480 hours is the maximum number of hours which can be imposed under a community service order. Courts in Jersey commonly use the "Community Service Tariff", which seeks to equate hours of community service with terms of imprisonment. The purpose of the tariff is to be "a rough guide" to a Court which is minded to impose a period of imprisonment by suggesting an appropriate equivalent number of hours of community service. According to the Tariff, the maximum number of 480 hours should be regarded as equivalent to 38 months imprisonment. The Crown argues that the offences should carry a minimum of 4 years in prison, and so the Royal Court should have concluded that a Community Service Order was not available. The Royal Court imposed a community service order of 456 hours in lieu of three years imprisonment.

32.     Also related to the community service order imposed is an issue around whether what the Royal Court did in imposing such a sentence was tantamount to imposing a sentence of three years' imprisonment, suspended over the period of the community service order. It is not, of course, lawful to suspend a sentence in excess of two years. This was a point adverted to by Montgomery JA when granting leave to appeal in this case, by reference to the case of R v Hartland [2023] EWCA Crim 790. In that case, the sentencing judge imposed a community service order in lieu of a 32 month sentence, but stated that any breach of the order should be brought back to her, and that in that event she would impose the 32 month sentence. The English Court of Appeal was of the view that this was tantamount to an unlawful attempt to suspend a three year sentence (see paragraph 68 of the judgment, referring back to the Solicitor-General's submission recorded at paragraph 55). The Court did not deal with the point in detail because it had already found the sentence unduly lenient on other grounds.

33.     In the present case, the Royal Court did not state that the three year sentence would be activated in the event of breach of the community service order, which we think is a material distinction between the present case and Hartland. There is no inherent objection to imposing a community service order in lieu of a three-year prison term in appropriate circumstances -� there is nothing in Article 4 of the Criminal Justice (Community Service Orders) (Jersey) Law 2001 which prohibits this. In the absence of any linkage in the sentencing judgment between the notional three year term and any breach of the Order, we do not think that the Royal Court's reasoning can be attacked on the basis of the argument deployed in Hartland.

34.     Advocate Sette, who appears for the Attorney General, did not pursue this point in his written submissions.

35.     The second criticism made by the Crown of the Royal Court's reasoning relates to its view that it was "not completely convinced" of the need to consider the deterrent effect of any sentence passed, because -

" deterrence usually works when there is an opportunity to consider with a cool head what is going to happen in advance. Deterrence tends not to be so important where people act in heightened emotional stress."

The Crown submits that this overlooks the fact that sentences can be passed to deter criminality in the community as a whole, not simply on the part of the offender who is being sentenced. It relies, by way of example, on the passage in the judgment of the Deputy Bailiff in Coelho at paragraph 21:

" there is now a greater awareness in the community as a whole of the damaging effects, which may give rise to long term or permanent consequences, of domestic abuse/violence to the victims and the children of victims, a general abhorrence of such conduct and a need to deter offenders and others from similar offending. This has led to penalties for domestic violence increasing."

The Crown submits that the offending in the present case calls for a sentence which operates as a deterrent for others who might be drawn to commit acts of violence against their spouses or partners.

36.     The third specific criticism of the sentencing judgment made by the Crown focusses on the proposition stated in paragraph 14 of the sentencing judgment to the effect that a non-custodial Community Service Order would be a "more serious penalty" than an equivalent period of imprisonment. The Crown submits that this displays flawed logic.

37.     Montgomery JA, when giving leave, referred to the significance of the fact that three of the offences involved non-fatal strangulation. She invited submissions on the significance for sentencing of this aspect of the Respondent's offending, by reference to the article: Non-Fatal Strangulation and Sentencing, Emma Fielding Arch. Rev. 2024, 1, 7-9. This article draws on a study by Dr Jane Monckton Smith at the University of Gloucestershire, which reported on the results of a survey conducted by Stand up to Domestic Abuse into the effects of non-fatal strangulation in June 2020. The study noted:

"[Non-fatal strangulation] is also associated with severe trauma in its victims and is in fact experienced as a real threat to life. Victims of it report not only that it is incredibly painful, it is an experience of potential death. Perpetrators of NFS very often have this as their motivation. It is a particularly traumatic, and because of this an effective, way to exert the ultimate control and leave the victim in no doubt that their life has been threatened. It would be a mistake to think that NFS is a spontaneous and angry assault, it is more likely to be a controlled and determined threat."

38.     Following this study, a specific offence of non-fatal strangulation was enacted in England and Wales by section 70 of the Domestic Abuse Act 2021. It carries a maximum sentence of 5 years. It has no equivalent in Jersey law.

39.     The Fielding article also refers to the English Court of Appeal decision in Cook [2023] EWCA Crim 452. In that case the Court of Appeal gave guidance on sentencing for the new offence. The Court observed:

"In view of the inherent conduct required to establish this offence a custodial sentence will be appropriate, save in exceptional circumstances. We consider that ordinarily that sentence will be one of immediate custody. The starting point will be 18 months' custody."

The Court also adverted to the difficulties posed by the fact that non-fatal strangulation may leave behind little in the way of physical injuries (which is the normal basis for assessing the seriousness of an assault). Sentencing on the basis of physical injuries does not reflect the seriousness of the offence, which resides in the severe mental trauma inflicted on the victim.

40.     The Fielding article concluded by suggesting that the Sentencing Council should issue Guidelines on the sentencing of the offence of non-fatal strangulation. Those Guidelines were published with effect from 1 January 2025 and Advocate Sette drew them to the attention of the Court. These are Guidelines for sentencing an offence which has no equivalent in Jersey law, and they were not published at the time the Royal Court passed sentence. Furthermore, as noted above, the specific offence of non-fatal strangulation carries a maximum sentence of 5 years imprisonment, whereas in the present case, non-fatal strangulation is prosecuted as a component of a charge of grave and criminal assault, where the sentence is at large. With those caveats in mind, we accept that these Guidelines offer one approach to the categorisation of the seriousness of non-fatal strangulation.

41.     The Guidelines categorise offences by reference to culpability and harm. Culpability is graded A to C, with A representing sustained or repeated strangulation or use of a ligature, C representing an offence which is a fleeting incidence, or the result of excessive self-defence or strangulation as a result of mental disorder or learning difficulty, and B as a category intermediate between the other two. Harm is graded 1 or 2, where 1 covers an offence which results in a severe physical injury or psychological condition which has a substantial effect on the victim's ability to carry out their normal day to day activities or on their ability to work. 2 is any other case. The Guidelines have this to say about harm:

"All cases of strangulation involve a very high degree of inherent harm. A victim may experience extreme terror, fear for their life and be deeply traumatised. Harm can include a range of internal and external physical injuries and psychological impacts, immediate and delayed, for which presentation may vary between victims. The harm assessment already provides for the risk of harm inherent in these offences, with the highest category providing for offences where the trauma suffered results in particularly severe impacts."

The Guidelines then construct a matrix of offending, where the most serious is culpability A and harm 1, and the least serious culpability C and harm 2. The guidelines provide a starting point for a sentence in the former category of 3 years and 6 months in custody.

42.     Advocate Sette submitted that this was a culpability A and harm 1 case. Advocate Herold-Howes rightly accepted the strangulation aspect of the Respondent's offending was at the serious end of the scale, although he suggested it might be B1, rather than A1.

43.     As appears from the details of the Respondent's offending, he placed his hands on the Victim's throat on three occasions. On the first of these (count 6) she feared strangulation, but the Respondent did not apply pressure. In the other two (counts 7 and 8) pressure was applied and the Victim's air supply was cut off -� for 30 seconds in the case of count 8. There was therefore repetition and strangulation for a sustained period. Categorising the Respondent's acts of non-fatal strangulation as A1 would therefore appear to be justified.

The Respondent's case

44.     The Respondent supports the decision and the reasoning of the Royal Court. In his written submissions, Advocate Herold-Howes summarises the Respondent's case in the following way in his written submissions:

"In summary the Respondent submits that the sentence was not unduly lenient in that it was not outside the range of sentences which the Court, applying its mind to all the relevant factors, could reasonably consider appropriate, in that -

a. that even in cases where the custody threshold has been passed by some margin a custodial sentence does not automatically follow,

b. that although the court is obliged to have regard to any guidelines and/or case law they are not bound by them,

c. that the unique circumstances of this case, i.e. the extremely long period of time that has passed between the offending and disposal and the behaviour of the Respondent as evidenced by the various witness statements, are so significant as to justify a departure from the undeniable starting point in a case of this nature."

45.     After the Respondent left Jersey in 2000 he committed no more offences of any kind. Not only that, as the statements referred to above make clear, he has turned his life around to a remarkable extent. Mr Herold-Howes stressed that this was not a case where there was any doubt about the offender's commitment to rehabilitation -� rehabilitation had already taken place before sentencing, and the risk of re-offending was accordingly rated as low. While he fairly accepted that had the Respondent been sentenced shortly after offending it would have been difficult to argue against an immediate custodial sentence, he submitted that the lapse of time since the offences, coupled with the complete rehabilitation of the Respondent had now radically changed the situation.

46.     In these unusual circumstances he submitted that it was right that the sentencing court should have available to it the option of a non-custodial sentence. He emphasised that the community service order imposed by the Court was very onerous -� it would require the Respondent to give up time on his weekends for many months to come. He has already completed 100 hours service. While the sentence passed could be regarded as lenient, it was not "unduly lenient" as that expression has been interpreted in the authorities. The sentence, he submitted, did not fall outside the range of sentences reasonably open to the sentencing Court in the circumstances of this case. He reminded the Court of the deference owed to the decisions of the sentencing Court, and referenced the observation of Lord Lane in Attorney General's Reference (No 4 of 1989) that "leniency is not itself a vice". He submitted that it is clear from the sentencing judgment that the Royal Court was well aware of the seriousness of the offences, and clearly had in mind the possibility of a custodial sentence. If having weighed up all of the factors the sentencing Court decided on a lengthy community service order was the appropriate sentence, this Court should respect that decision.

47.     Mr Herold-Howes also stresses the fact that although the Respondent considers that the assaults were not as extreme as the Victim now describes them, he is prepared to accept as correct her version of events. But in view of the fact that the Respondent accepts that his memory of events is impaired by the amount of drugs he was consuming the time, it is not clear that he had any real choice but to make that concession.

48.     The Respondent submits that the Crown's case is tantamount to saying that a sentence of imprisonment is mandatory in cases of domestic violence of this sort, and that there is no warrant for that contention. Granted that a non-custodial community service order must be an option in the present case (because that is what the legislation provides) the Respondent submits that there is no reason to suppose that the facts of the present case are insufficient to justify the Royal Court imposing such a sentence.

49.     The Respondent also refers to the Sentencing Guidelines. He points out that the Guidelines list a series of aggravating factors in paragraph 11, but he submits that none of those factors are present in this case. He also argues that neither of the factors referred to in paragraphs 9 and 10 of the Guidance (quoted in paragraph 28 above) apply in the unusual circumstances of this case.

50.     On the other hand, he submits that the mitigating factors referred to in the Guidance (which have been quoted in paragraph 29 above) are strongly present. In addition to the evidence of a change of life since 2000, Advocate Herold-Howes stresses that the Respondent has accepted full responsibility for his offending, has accepted the veracity of the Victim's account of the offences (even though he has some reservations about whether she may have overstated the severity of the assaults) and he has exhibited genuine remorse for his actions.

51.     He also submits that Respondent's guilty plea should be regarded as of more than usual weight in this case, because he was prepared to plead guilty even though he had limited recollection of the circumstances of the offences in question.

52.     On the issue of non-fatal strangulation, the Respondent submits that the point made in the Fielding article (namely that the absence of physical injury should not be a bar to treating an non-fatal assault as actual bodily harm) does not impact on the present case, because the assaults with which the Respondent was charged carried a level of sentencing commensurate with that recommended for non-fatal strangulation. The Royal Court sentenced on the basis of all of the serious nature of all of the offending, including non-fatal strangulation.

Conclusions on undue leniency

53.     In reaching our decision we have paid careful attention to the reasoning of the Royal Court, and we have borne in mind Lord Lane's injunction (in Attorney General's Reference (No 4 of 1989)) that -

"the trial judge [or jurats in our case] is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice.

We have also had regard to the dicta cited above about the need to find a sentence "manifestly lenient" or outside the range of sentences which a judge (or jurats) could reasonably impose.

54.     We of course approach any decision of the Royal Court, and Superior Number in particular, with care because the Royal Court sitting as a sentencing court represents a wider range of opinion than does a first instance criminal court in England and Wales. That said, although not determinative of our decision, we note that the Royal Court in this case was not purporting to set any sentencing policy and had not been addressed on matters of policy and the Jurats were divided in their view of the correct outcome. 

55.     Having borne all those factors in mind we nonetheless have no hesitation in concluding that the sentence in the present case was unduly lenient.

56.     We start with the extreme severity of the Respondent's offences. Their aggravating features include:

(i)        The fact that the assaults were committed on the Victim in the matrimonial home where she was entitled to feel safe, and in the context of a relationship in which the Victim was entitled to trust the Respondent not to engage in acts or threats of violence of any kind

(ii)       The high level of violence on the part of the Respondent, including punching, kicking stamping grabbing by the throat and manual strangulation

(iii)      The severity of physical injuries which the Respondent inflicted on the Victim, and the permanent scarring which they have left behind.

(iv)     The repetition of the assaults, with the Respondent inflicting 10 assaults on the Victim over a period of some 6 years.

(v)      The use of violent language by the Respondent in the course of the assaults, including the wish that the Victim should die.

(vi)     The fact that the level of violence, combined with the Respondent's threats, left the Victim on more than one occasion in (quite reasonable) fear of her life.

(vii)     The serious and long-lasting psychological damage inflicted on the Respondent, which continues to blight her life to this day.

57.     We have referred above to the material we have seen on non-fatal strangulation, and we have concluded that the Respondent's acts of non-fatal strangulation are at the serious end of the scale. These are clearly significant aggravating aspects of the Respondent's offending, although non-fatal strangulation is only one aspect of wider range of serious assaults in this case.

58.     Turning to the reasons which the Royal Court gave for its sentence, we do not agree with a view expressed in paragraph 12 of the sentencing judgment that this was not a case where deterrence was an important factor in sentencing. In recent years domestic violence has become recognised as a serious, and unhappily prevalent, crime. It is important that those with a propensity to commit crimes in this category are aware that their wrongdoing will be met with severe punishment. It is also highly important that those who may be victims of this form of crime can trust law enforcement authorities to take this form of offending seriously.  It is important for the public to know that the vulnerable will be protected, if necessary, by the imposition of immediate prison sentences. To put the matter another way, it would send entirely the wrong signal to say that the perpetrator of a sequence of domestic assaults of this severity can escape prison, even though he may have reformed his life since the offences. We note Potter LJ's comment in the passage from Attorney General's Reference (No. 132 of 2001) quoted in paragraph 22 above that one of the purposes of the reference jurisdiction is to ensure the maintenance of public confidence in sentencing "where a judge appears to have departed to a substantial extent from the norms of sentencing generally applied by the courts in cases of a particular type".

59.     We do not think that the Crown's argument based on the Community Service Tariff (see paragraph 31 above) takes its case any further.  The Tariff has no statutory force, and describes itself as a "rough guide". We do not think the Tariff can be used as the basis for setting hard and fast limits on the length of sentence which might be replaced by a Community Service Order.

60.     We agree with the Crown's criticism of the approach set out in paragraph 13 of the sentencing judgment, where it is stated:

" the majority [of the jurats] feel that the appropriate custodial sentence that would be imposed in the light of the fact that you have already served a period of imprisonment on remand would be an insufficient penalty and that a non-custodial Community Service Order would in fact amount to a more serious penalty and they think that is important in the context of your offending."

There is no reasoned basis given for the conclusion that the imposition of a community service order was "a more serious penalty" than the corresponding period of imprisonment. While not downplaying the seriousness of a community service order, we think few people would consider it more severe that an immediate prison sentence of several years duration. As the English Court of Appeal observed in Hartland at paragraph 67, when finding that a community service order was an unduly lenient sentence for offences amounting to "prolonged violent domestic abuse":

"The restriction of the Respondent's liberty by the sentence passed by the judge [ie a community service order] was minimal and not commensurate with the seriousness of the Respondent's conduct by a large margin."

The Court in that case clearly regarded a community service order as a less severe form of punishment than imprisonment.

61.     Turning to the Respondent's submissions, we do not accept the Respondent's characterisation of the Crown's case as being tantamount to a submission that offences of domestic violence "of this sort" must always carry a custodial sentence. Each offence and must be sentenced on its merits. In principle a community service order is always available if the statutory pre-conditions are met. But there will inevitably be some convictions where the offending is of such a serious nature that to impose anything other than a custodial sentence would be wholly inappropriate. That may, in practice, be true of many domestic violence cases, and, the Crown submits, it is certainly true of this case. We agree.

62.     We accept that paragraph 9 of the sentencing guidance is not applicable to the Respondent's case, insofar as there is a low risk of re-offending, as there appears to be no continuing risk to the Victim (although we note that that is not her perception). But paragraph 10 is clearly in point, as it refers to the lasting trauma inflicted by domestic violence as a reason why such offences are regarded as particularly serious. While the aggravating factors listed in the Guidance are largely absent (we consider that the first -� abuse of trust is a factor in this case) the severity of the assaults in the present case, and their number, are a very significant factor in themselves.

63.     In conclusion, we have considered carefully the submissions made on behalf of the Respondent, and we fully understand the reasons why the Royal Court reached the decision it did. However, we have concluded that, on the facts of this particular case, it was not reasonably open to the Court to impose any sentence other than an immediate custodial sentence. This was demanded by the serious levels of violence inflicted on the Victim, which included instances of manual strangulation, and the severe and lasting psychological trauma which the Victim continues to suffer, years after the event. The lapse of time since the offences (which was occasioned by the Respondent's decision to absent himself from the jurisdiction) is not of itself a reason for imposing a more lenient sentence. The Respondent's rehabilitation, and his remorse for what he has done, while commendable, cannot outweigh the need to visit upon his offences the most severe form of punishment available to the Court. We consider that the need to maintain public confidence in the sentencing of domestic violence offences demands no less.

64.     Because the only sentencing option reasonably available to the Royal Court on the facts of this case was an immediate custodial sentence, it follows that the sentence actually imposed was unduly lenient.

The sentence to be imposed by this Court

65.     Having set aside the sentence imposed by the Royal Court, it now falls to this Court to determine what an appropriate sentence ought to be. The details of the offences and the available mitigation have been set out above. In addition to those matters this Court has the benefit of a Psychological Report on the Victim compiled by Dr Jamie Conner in January of this year. We have not placed any reliance on this report when reaching our conclusion on undue leniency, because this was not a report which was available when the Royal Court passed sentence. It is, however, open to us to take it into account when setting what we consider to be an appropriate sentence. This report provides independent professional confirmation of the Victim's account of her mental trauma in the victim impact statement, referred to above. It therefore reinforces our view that the lasting effect of the offences on the Victim is a significant aspect of the seriousness of the Respondent's offending.

66.     In the light of the serious nature of the offences in this case, we consider that the starting point for the sentence for the offences taken as a whole should be six years. From that we have deducted the usual one-third to reflect the Respondent's guilty plea. From the resulting four year sentence we make a further deduction to reflect the following mitigating factors:

(i)        The Respondent's rehabilitation and his remorse for his actions

(ii)       The fact that the Respondent has completed 100 hours of his 456 hours of community service.

(iii)      The fact that the Respondent has previously been sentenced to a non-custodial sentence, and is now being returned to prison, contrary to the expectation he would have had following his sentencing hearing.

We have made a further deduction from the sentence of one year to reflect all of these factors. We have therefore fixed on a sentence of 3 years imprisonment. Time spent on remand before the sentencing hearing will of course count towards, and be deducted from, that sentence.

67.     We sentence the Respondent to a term of three years imprisonment on Count 10, with no separate penalty being imposed for the other nine counts.

68.     The restraining order imposed by the Royal Court should remain in place on the same terms as ordered.

Authorities

Court of Appeal (Jersey) Law 1961. 

AG v Tremarco [2024] JCA 256. 

AG v Tremarco [2024] JRC 182. 

AG v Kittleson [2011] JCA 052. 

Attorney General's Reference (No 4 of 1989) (1990) 90 Cr. App. R. 366. 

Attorney General's Reference (No. 132 of 2001) (Bryn Dorian Johnson) [2002] EWCA 1418. 

Attorney General Reference Nos. 31, 45, 43, 42, 50, and 51 of 2004 [2005] EWCA Crim 1934. 

Coelho v AG [2020] JRC 216. 

Criminal Justice (Community Service Orders) (Jersey) Law 2001. 

R v Hartland [2023] EWCA Crim 790. 

Non-Fatal Strangulation and Sentencing, Emma Fielding Arch. Rev. 2024, 1, 7-9

Cook [2023] EWCA Crim 452.