R v Aaron Miah

THE RECORDER: This is an appeal against sentence brought with leave of the single judge. On 11 September 2024 the appellant was sentenced to nine months' detention in a young offender institution for the offence of intentional non-fatal strangulation, contrary to section 75A(1)(a) and (5) of the Serious Crime Act 2015, two months' detention concurrent for assault by beating, contrary to section 39 of the Criminal Justice Act 1988, and one month's detention concurrent for the offence of criminal damage, contrary to section 1(1) of the Criminal Damage Act 1971.

The appellant was in a relationship with the victim, Florence Luff. At the time of the offences she was aged 18 and the appellant aged 17. Towards the end of December 2022 the relationship had soured. At the time they were living together at the victim's family's address.

On New Year's Eve, 31 December 2022, they had an argument. The appellant became angry towards the victim and she locked herself in the bathroom. The appellant banged on the bathroom door and made a number of threats towards her. She was concerned at his behaviour and recorded it on her phone. The door had wooden panels and the appellant kicked through one of the panels (count 4) and crawled through the hole into the bathroom. They ended up in the hallway at the top of the stairs. The appellant kicked her to the thigh resulting in bruising (count 3). During the assault the appellant throttled the victim, placing his hands around her neck for at least five or six seconds (count 2). She stated that it was with full force with both hands. She found it difficult to breathe. The appellant eventually released his grip and the victim escaped. He subsequently apologised. The victim notified her parents and the emergency services.

The appellant was arrested and gave a no comment interview. He was later prosecuted, indicated not guilty pleas in the Magistrates' Court and was sent to the Crown Court for trial on unconditional bail. At the plea and trial preparation hearing on 29 August 2023 conditions were imposed on his bail and the trial was fixed for 25 March 2024. In due course he pleaded not guilty to a further charge of assault by beating on 27 December 2022 (count 1), the non-fatal strangulation (count 2) and assault by beating (count 3), but pleaded guilty to the criminal damage charge (count 4).

On 26 March 2024 the appellant changed his pleas on counts 2 and 3 to guilty. Count 1 was ordered to lie on the file against him in the usual terms. On 11 September 2024 he was sentenced.

The judge had the benefit of a pre-sentence report, a liaison and diversion report, two psychology reports from Katherine Goodsell and a psychiatric report from Dr Pankaj Agarwal. Both professionals diagnosed the appellant as suffering from PTSD which arose out of the unusually traumatic nature of his childhood. His father was physically abusive towards his mother, as well as to the appellant when he tried to intervene to protect his mother. Then his father killed his mother while the appellant was asleep in the next room. The appellant was just nine years of age. He had to give evidence at the father's trial for murder of which he was convicted. Then the appellant's father died in custody in 2022 before the appellant saw him again, he having taken the decision that he would wait until he was 18 before doing so. He had struggled to come to terms with that loss as well. The appellant suffered from low mood and anxiety associated with panic attacks. He suffered from a lack of motivation, hypervigilance, emotional numbing, flashbacks, nightmares and had difficulty sleeping. He avoided situations that reminded him of all the trauma, including stressful situations in which he felt under threat. When these occurred he struggled to manage his emotional distress and consequently his behaviour.

The sentencing exercise took place before the sentencing guideline on non-fatal strangulation was adopted and the judge had regard to the principles established in the case of Cook [2023] EWCA Crim 452. The judge adopted the starting point of 18 months identified in paragraph 16. He referred to the aggravating factors: it was a domestic incident which took place in the victim's own home, the appellant had consumed alcohol and he took her phone so she was unable to call the police. In addition the judge was sentencing for two other offences. He said he would reflect the totality of the offending and pass concurrent sentences.

The judge went on to refer to the mitigation. The appellant had no previous convictions and had mental health difficulties arising out of his tragic childhood marked by abuse of him and his mother by his father, which culminated in her murder and then his death in custody. The judge had no doubt the appellant had had a traumatic time, had been significantly adversely affected and suffered from PTSD.

Taking into account the aggravating and mitigating factors, the sentence for an adult would have been 15 months. The judge then said this:

The judge therefore reduced the sentence by one-third to 10 months and by a further 10 per cent to reflect the appellant's late guilty plea. The judge went on to explain the effect of the sentence, saying that on the appellant's release he would be subject to post sentence supervision for one year and that the appellant would have served the custodial part of the sentence and would be released that day or soon thereafter. However he added that that had played no part in setting the length of the custodial period.

In the grounds of appeal, counsel for the appellant who appeared below took five points which have been further distilled by Mr David Emanuel KC who appears on the appellant's behalf today. He submitted that a sentence of detention was wrong in principle because the judge failed to adopt the correct approach to sentencing the appellant who was 17 at the time of the offences. Although the judge said that the proper approach was to consider what sentence would have been passed if the appellant had been sentenced at the time he committed the offences, in practice he had not followed that approach. He submitted that the judge had failed to refer to and follow the sentencing guideline on sentencing children and young people, paragraph 6.1 to 6.3, he had failed to have regard to the applicable principles when sentencing children, including a requirement to have regard to the principal aim of the youth justice system which is to prevent offending and to the welfare of the child. He also failed to take into account that young people are still developing up to the age of 25 and that immaturity affects their ability to appreciate the consequences of their actions as reiterated recently by the Lady Chief Justice in Khan [2024] EWCA Crim 401 at paragraph 23.

As a result he submitted that the judge wrongly started with the sentence which would have been imposed on an adult following Cook and failed to have regard to the appellant's personal circumstances and his powerful mitigation. Further, to pass a custodial sentence because the appellant had already been held on remand was an incorrect approach.

He submitted that the judge also demonstrably erred in making assumptions as to the effect of the sentence on the appellant who had been subject to stringent licence conditions for four-and-a-half months because time on remand does not count towards the post release period of the sentence. He submitted the judge also erred because he thought a community penalty would be unenforceable.

In those circumstances, although the proper approach for the judge to take was to impose a community order, in the light of the fact that the appellant has spent four-and-a-half months on licence on conditions and five months subject to post licence supervision, Mr Emanuel submitted that the fairest approach now would be to impose a conditional discharge.

Secondly, Mr Emanuel submitted in the alternative that if detention was justified then the length of the term was manifestly excessive. The starting point of 18 months which the judge took from Cook is not appropriate in every case and in this case the appropriate starting point should have been one of 12 months. That would take into account that the period of strangulation was brief, five seconds, that the appellant voluntarily desisted and there was no severe harm. The judge also failed to take into account the exceptional mitigation and there is no good reason to limit the reduction to reflect the appellant's age to one-third.

We can deal shortly with one point taken in the original grounds of appeal, although not pressed by Mr Emanuel. The judge nowhere says that a community order would have been unenforceable and there is no evidence he took this view.

The offence of non-fatal strangulation is a serious one, as the court said in Cook at paragraph 4:

The victim's victim personal statement reflects this. As the judge found, although it was a single incident it was wholly unprovoked and sufficiently lengthy to have left marks on the victim's neck. She said she thought she was going to die. Moreover, the judge was sentencing for three offences. The appellant, who had drunk five shots along with coke and vodka, was angry such that the victim took refuge by locking herself in the bathroom. The appellant was shouting at her, repeatedly banging on the bathroom door and said: "I want to kill you." He broke one of the door panels and went through the hole into the bathroom. He grabbed the victim's hair and dragged her towards the hole he had made and she ended up on the floor of the landing where he kicked her hard in the upper right thigh, while continuing to shout at her throughout. He then got down on his knees and put both hands around her throat and strangled her. She was not sure for how long, may be five seconds, but long enough to restrict her breathing and leave a red mark. She said, "he looked so angry, I was so frightened".

Against that background, we do not detect any error of principle in the judge concluding that the offending was so serious that a sentence of detention was appropriate. The judge specifically said he must have regard to the overarching guidelines for sentencing children and young people. In our view he can be taken to have done so without quoting the general principles set out in them. Further, he had specific regard to paragraphs 6.1 to 6.3 of the guidelines because he said that the starting point was the sentence which would have been imposed if the appellant had been sentenced as a 17-year-old. He was 17 years and seven months of age at the date of the offences. In that context the judge expressly considered whether to impose a community penalty. He had already referred to the appellant's mitigation and his mental health difficulties. There is no evidence the judge failed to take these into account when deciding if the sentence of detention was necessary.

Contrary to the grounds of appeal, if the appellant had been sentenced as a youth, referral to the Youth Court would not have been mandatory. Under section 25 of the Sentencing Act 2020 the Crown Court must remit a youth "unless satisfied that it would be undesirable to do so". Plainly it would be undesirable to remit if, as here, the court concluded that the offending was so serious that a sentence of detention was necessary.

Further, in our judgment the length of the sentence was not, in principle, manifestly excessive. The judge faithfully applied the guidance at the time in Cook. Given the aggravating features he identified, it is clear he made a very considerable reduction in sentence to reflect the mitigation when he arrived at the figure of 15 months. He then made a further reduction of one-third in accordance with paragraph 6.46 of the children and young persons sentencing guideline to reflect the appellant's age at the date of the offence.

That said, standing back and looking at the sentence against the unusual background of this case, we are troubled by the effect of it. This was a difficult sentencing exercise and we have every sympathy with the judge who was faced with the fact that the appellant had already been in custody from 11 November 2023 (when he was arrested for breaching his bail conditions) to 11 September 2024 (when he was sentenced) a period of 10 months. There is no evidence the judge received the assistance he needed from counsel as to the effect of his proposed sentence.

The judge believed that the sentence he was imposing would result in the appellant's more or less immediate release and with no more than post sentence supervision. He plainly thought it would be unfair to impose significant community requirements on the appellant which is one reason why he did not impose a community order. It is not clear whether, if he had known the effect of the legislation and the nature of the licence conditions that have been imposed on the appellant, both as part of his sentence and as part of the post sentence supervision, he would have imposed the same sentence.

The appellant was in fact in custody for 10 months, the equivalent of a 20 month sentence. Despite the sentence imposed being one of 10 months' detention, he spent a further four-and-a-half months on licence as part of his sentence and is now subject to post sentence supervision for a further five months. We are satisfied that in the unusual circumstances of this case it would not serve any of the purposes of sentencing, whether for a child or an adult, for the appellant to be subject to any further period subject to post sentence conditions.

Mr Emanuel's invitation is that we should instead a impose a conditional discharge. We agree. Pursuant to section 8(4) of the Sentencing Act 2020, the court may make an order for conditional discharge if it is of the opinion that it is inexpedient to inflict punishment having regard to the circumstances, including the nature of the offence and the character of the offender.

In Dawes [2019] EWCA Crim 848 the judge made a suspended sentence order for six weeks for breach of a non-molestation order where the appellant had served 83 days, the equivalent of a 24 week sentence. The court said this at paragraph 15:

In our judgment the seriousness of the appellant's offending has already been reflected in the time spent on remand, on licence and on post sentence supervision. The just course is therefore to impose a conditional discharge.

For these reasons we allow the appeal, quash the sentences of detention and substitute concurrent conditional discharges of two years on each count. We also make a consequent alteration to the surcharge order which is now £20.