A new offence of strangling/suffocation came into force on 7 June 2022, and we have previously written about the case of Cook [2023] EWCA Crim 452, which sets out comprehensive sentencing principles for judges.
In Cook, the Court of Appeal commented:
“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.”
These two sentences have caused difficulties, which the Court of Appeal addressed in a recent ruling.
The danger for judges is conflating the first two sentences of the comment above with the result that it is understood that it was being suggested that appropriate punishment could only be obtained in a case of this nature, save in exceptional circumstances, with the imposition of an immediate sentence of imprisonment.
The Court of Appeal has now made clear that the suspension of any custodial sentence must be considered separately (Borsodi [2023] EWCA Crim 899).
The Court held:
“The first sentence makes clear that in view of the inherent conduct required to establish this offence a custodial sentence will be appropriate, save in exceptional circumstances, and such a custodial sentence may be immediate or, in appropriate cases, may be suspended.
The second sentence makes clear that:
“Ordinarily the sentence will be one of immediate custody”.
But crucially:
“Ordinarily” is not to be equated with “exceptional circumstances”.
This ruling is a significant sentencing development and to be significantly welcomed when prison conditions are very challenging, and punishment can be achieved without resorting to hugely disruptive and relatively short terms of imprisonment.