R v Luke Pollard

Luke Anthony Pollard was born on 15 February 1992. He is now 33 years old. This is an application by His Majesty's Solicitor General, under section 36 of the Criminal Justice Act 1988, for leave to refer sentences imposed on the offender on the ground that they were unduly lenient and that they should be increased by this Court. We give leave.

The offender pleaded guilty on the day of trial, which was 7 April 2025, to count 1 on an indictment which alleged an offence of controlling and coercive behaviour consisting of physical and verbal abuse against his then partner (Ms Keats) during a 4-year relationship and to count 5 on the same indictment which alleged a specific incident of violence at the end of that 4-year period when he threw her across the room in their home, fracturing her arm. That offence was charged as an offence of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. As we shall explain that second offence occurred during an incident which brought the 4-year period of criminality to an end.

Having pleaded guilty on 7 April 2025, the offender appeared before the same judge (Mr Recorder Sprawson) on 13 June 2025 for sentencing. The Recorder had directed that there should be a pre-sentence report and some further material which we shall come to shortly was made available to him for the purposes of this sentencing hearing.

Having heard the facts opened by prosecution counsel and having heard some mitigation from Ms Sarah Phelan, who appears before us in responding to this application and who appeared for the offender at the point when he entered his guilty pleas, the judge imposed concurrent terms of 2 years' imprisonment suspended for 2 years on both count 1 and count 5 on the indictment. Attached to those suspended sentence orders were requirements requiring the offender to engage in 25 RAR days, 26 accredited programme days and to do 100 hours of unpaid work. A restraining order to protect the victim of the offending was imposed for 10 years.

The Solicitor General submits that this sentence was unduly lenient because the appropriate sentence, that is to say the least sentence that could be passed having regard to the criminality with which the court was required to deal, was 3 years' imprisonment less only a 10 per cent discount for the very late plea resulting after an element of rounding down in a term of 32 months. That is a term which cannot lawfully be suspended and the consequence of the acceptance of that submission would be that an immediate term of imprisonment was required and that we should impose such a term now.

It is necessary to set out the facts of the offending and also of the procedural history in this case with some care and in some detail. As we have said, the victim of these two offences was Olivia Keats. She is now 28 years old. During the period when she was subject to these offences she was between 21 and 25 years old. That 4-year period came to an end just a few days before her 26th birthday. She presented herself to the Accident & Emergency Department of a hospital on the morning of Saturday 22 October 2022. She was initially reluctant to tell the medical staff what had caused the injuries which required attention but she did then disclose the fact that she had sustained injuries in the course of a domestic assault at the hands of her partner, the offender. She had a fractured lower arm and multiple bruising to various parts of her body including her face and a wound to her left eye socket. The nature and distribution of those injuries confirmed her account which was that she had been subjected to a series of physical assaults over the course of a period of a day and night, which had culminated in an episode when her arm was broken. This was not unprecedented in the course of her relationship with the offender, but on this occasion, for the first time, she concluded that she needed medical help when she woke up the next morning in severe pain because of her fractured arm. The medical staff called the police who attended. Again, after a period of reluctance Ms Keats ultimately told them what had happened to her on the night of the 21/22 October. She explained that she had been in a relationship with the offender for about 5 years, and that they had two children together. She said that the first year of the relationship was good but then the offender became abusive and continued to be so throughout the succeeding 4 years culminating in the final assault we have described. She said that she had been assaulted by him frequently sustaining bruising. This was the first report she had made of any of this behaviour either to any hospital or to the police. She had felt that she was unable to make any earlier complaint. She described how her behaviour was controlled by the offender, who constantly belittled her, and sent her abusive manipulative messages, discouraging her from seeing her friends whom he abused and discouraging her also from seeing her mother. He had a list of rules that she was required to follow if she wanted to remain in the relationship including not speaking to him in public. Some of this behaviour had been witnessed by the two small children of the family. She identified one particular occasion when that had happened as being a time when the offender had thrown a plate at a wall in the course of an argument.

She gave a detailed description of what had happened on 21/22 October 2022. Events began to go wrong during the course of the afternoon of 21 October. There was an argument during which the offender grabbed Ms Keats by the scruff of her neck, pressing his hand against her ear and telling her that he hated her. He threw her across the room and then left the house. She felt sore but did not have any injury at that point which necessitated medical care.

In the early hours of the morning on the following day the offender came home drunk. Another argument occurred. He threw a phone charger at her head and a second phone charger, causing its plug to injure her eye. He pushed and punched her. He picked her up and threw her across the room. It is likely that she fractured her arm when she landed hard, with her arm on the upturned plug of one of the chargers. One of the children began to cry and, injured as she was, she went to comfort the child. She then went back to the bedroom where the offender was and he assaulted her again. He threw her to the floor of the bedroom and kicked her. After this, she was bleeding, she had a shower and went to bed. She was in a great deal of pain and took a taxi to the hospital where the events which we have already described transpired. The intervention of the police resulted in the offender's arrest at home later that day. He initially made no reply on arrest but later, when interviewed, said that the victim had accused him of spending the evening with another woman when he came home in the early hours of 22 October. She then, he said, began to hit herself and pull her own hair out. She hit him and he pushed her off but not forcefully. He said that she had swung her arms at the door and must have caused her own injuries. He told the police that she had suffered from postnatal depression and from other mental health problems. He denied any responsibility on his part for any wrongdoing on 21 or 22 October.

That, in essence, is the factual basis on which the judge was required to sentence. We shall come shortly to the events which resulted in guilty pleas being entered and sentence imposed. But before we do that, we should say something about the offender himself and about the impact of his conduct on the victim and the children of the family. It is, in our judgment, of importance that the offender had, prior to his guilty pleas being entered in this case, one previous conviction. It was dated 24 November 2016. He had pleaded guilty to assault by beating against his former partner, Jessica Back. That offence occurred on 6 September 2016. During an argument he had taken Ms Back's mobile phone and ran upstairs to examine it. It is right to say that the coercive and controlling behaviour involving Ms Keats also involved behaviour concerning the way she was allowed to use her phone. A desire to control the use of phones and to use them to search for evidence of suggested misconduct is a characteristic feature of many offences of this kind. It featured in his previous conviction and it has featured in the facts of the present offences as well. He took this phone upstairs. Ms Back went after him and asked him to give her her phone back. He pushed her away, grabbing her wrists causing cuts and grazes. He was fined and made subject to a restraining order in that case. Ms Back made a witness statement for the purposes of the present prosecution in 2023. In it she described how badly the offender had behaved towards her on many occasions. She described him as "nasty". We shall refer to a later statement which she made for the sentencing hearing below.

At the time of sentencing the judge had a victim personal statement from Ms Keats in which she described the very serious impact on her and on, in particular, their daughter of the prolonged period of abusive behaviour for which this offender was responsible. She said that he had conditioned her to believe that she was the problem and that it was her fault when she was hurt by him. She described him as a narcissist and a bully. She said:

At the point when this victim personal statement was made she was undergoing counselling. She was attending a programme for survivors of domestic violence and taking antidepressants and Beta blockers to help with panic attacks. She finds it difficult to trust anybody. She suffers from low self-esteem and feels worthless. She was particularly upset that the offender, since his arrest, had shown no interest in the two children that they had had together, although his bail conditions prevented him from approaching her, or going into the town where they lived and required him to live elsewhere, he had been given the opportunity to see his children but had refused to undergo the Social Services’ assessment that would have been required before that could happen.

The victim personal statement also explains that the incident witnessed by the child on the night of 21/22 October 2022 had left deep psychological scars on her. The child has night terrors and is now prone to sleepwalking. She reports bad dreams about "Daddy hurting Mummy". She is being helped with therapy as well.

This was all supported by an important document created by a community mental health nurse who had worked with the victim over a long period of time. She described the profound and lasting impact which the abuse had had on Ms Keats’s mental health. She described the ongoing psychological symptoms including flashbacks and nightmares, and confirmed the explanation of her condition which the victim had given in the victim personal statement. She concluded:

The offender was charged initially with three offences of violence which were alleged to have been committed over the night of 21/22 October. The broken arm offence was at that stage charged as an offence of causing GBH with intent contrary to section 18 of the 1861 Act. In addition, there were initially two charges of intentional strangulation relating to incidents during that series of assaults which we have described contrary to section 75A (1) (a) and (5) of the Serious Crime Act 2015. The offender appeared before the Magistrates' Court on 24 October 2022 and was sent for trial on bail with conditions which we have described already.

A plea and trial preparation hearing occurred on 22 November 2022, when not guilty pleas were entered to three counts on the indictment reflecting those three initial charges. The case was then put in a Warned List beginning 24 July 2023, in the hope that it might be possible to hold a trial that week.

On 9 February 2023, the offender served a Defence Statement setting out his defence to these three charges as they then stood. In a nutshell, he said again what he had said to the police in interview. He explained how everything that had gone wrong was the victim's fault and that he himself bore no responsibility whatever for anything.

The indictment was subsequently amended by the addition of what became count 1, controlling and coercive behaviour, and what became count 5, an offence contrary to section 20 of the Offences Against the Person Act in relation to the broken arm. Those two new counts were the two counts to which guilty pleas were later entered in circumstances we are about to describe. Sadly the trial did not take place in the period for which it was warned in July 1993. The case was taken out of that Warned List and put in another beginning on 8 April 2024. On 9 April 2024, the trial was again moved out of the Warned List and put into another one, this time beginning on 7 April 2025. As we have already explained, that became the trial date. This was therefore the first trial date when a date had actually been fixed for this trial and that did not occur until 2½ years had passed since the sending of the case for trial.

So the parties attended on 7 April 2025 expecting that a trial would take place. The victim, Ms Keats, was present and expecting to give evidence and the offender was present, no doubt expecting to in due course give his evidence explaining why he had done nothing wrong. That did not happen because Ms Phelan, then appearing on his behalf, informed the Recorder that she had written instructions to seek from him an indication of sentence in the event that a guilty plea was entered on that day. That is a form of indication always known as a Goodyear indication after the decision of this Court in 2005 when such indications became lawful.

The Criminal Procedure Rules and the Criminal Practice Direction between them prescribed the way in which matters are supposed to proceed when such an indication is sought. Critical to that process is the requirement for a written application which includes a statement of the facts on which the indication is sought. Those facts are supposed to be agreed by both sides, so that a judge who is being invited to give such an indication is on firm ground knowing the factual basis of the offending for which the sentence is to be passed.

In this case that was not done. The facts were explained to the judge orally. The explanation that was given amounts to this: the prosecution did not seek in the event that pleas were tendered to counts 1 and 5 to prove the counts of intentional strangulation. Those incidents were therefore not part of the factual basis on which an indication of sentence was sought. Otherwise the allegations which Ms Keats made and which we have summarised were accepted as being the facts in the case.

There was some discussion before the Recorder between him and counsel about the appropriate categorisation of these two offences for the purposes of the relevant offence specific guidelines. Defence counsel submitted that the offence of inflicting grievous bodily harm was a category B2 offence with a starting point of 2 years' custody. She said that in relation to the controlling and coercive behaviour offence, counsel had discussed whether it fell within category 1B but no agreement to that effect was ever communicated to the court. She added that she submitted that there were some factors present in the case which suggested a lower categorisation in 2B might be appropriate. The judge did not announce any formal decision about that and did observe that the domestic abuse guidance applied, the principal significance of which in this context is that it makes the point that offending within a domestic context may be more serious than similar offending in other contexts. The domestic environment in which the offences occurred is not to be regarded as lessening their seriousness and may usually increase their seriousness. The judge had that well in mind.

The judge asked for information about the impact of the offending on the victim and prosecuting counsel answered orally indicating that emotional issues were ongoing which she was working through. She had attended with the community psychiatric nurse and there had been issues in the past in relation to anxiety and depression. The critically important material at [10]-[13] above was not before the court. There was discussion of the relevance of delay and the judge indicated his view that the delay was explained by the fact that the offender had not previously offered any guilty pleas which would be acceptable to the prosecution. There had been a suggestion at one stage in the past that he might be willing to plead guilty to count 5 but that would not have been acceptable. The first indication of any willingness to consider pleading guilty to coercive and controlling behaviour came on 7 April. In those circumstances the judge felt that the delay was of little significance in his favour. The judge was aware that at the time of the final assault on 21/22 October the two children were in the house, and that at least one of them had been directly impacted by that assault and he knew also that when matters concluded in the early hours of the morning the offender was drunk.

At the conclusion of that hearing the judge said, without going into detail as to how he arrived at this conclusion, that although a sentence of 3 years' imprisonment in total before mitigation and credit for a plea would be appropriate, in the circumstances of this case if a guilty plea were entered that day, the sentence would not be more than 2 years. He said that he would order a pre-sentence report and did not at any stage indicate that he would suspend that term of imprisonment. Accordingly, the expectation created in the offender's mind, as a result of that hearing, was that if he pleaded guilty he might receive a sentence as long as but no longer than 2 years' imprisonment and that it might be immediate but could be suspended. He was given no promises in that last regard.

The prosecution did not express any support for or approval of that sentence level. There was no mention in the course of the hearing of the possibility that if such a sentence were imposed the law officers might seek to refer it to this Court as they subsequently have. It is nevertheless part of the process, as confirmed in the Practice Direction, that the defence counsel, when seeking an indication of this kind, is required to make it clear to the offender that such a reference is possible in all cases and that the giving of an indication of sentence does not therefore involve a guarantee that that will be the final sentence imposed at the conclusion of all possible proceedings. We have no reason to suppose that Ms Phelan failed in her obligation in that respect and she has not suggested that she did. Accordingly, the offender was aware of the risk that what has occurred might occur when, as he did thereafter, he entered his guilty pleas.

The Practice Direction requires that the judge should be supplied with everything that is required in order to reach a decision about the maximum sentence which the facts of the case require (CrimPD 9.4.7). The judge is not required, indeed is enjoined not to hear any mitigation. Accordingly, the indication that is given is of a sentence which may be further reduced at the sentencing hearing should mitigation make that appropriate. The judge's indication departed from that approach, not only, as we have said, in that there was no written factual basis on which he could work, but also in that he did not have material which was relevant to the assessment of the relevant maximum sentence. By the time of the sentencing hearing he had a victim personal statement, the contents of which we have summarised, and the letter from the community psychiatric nurse which we have also referred to. The victim personal statement gave information about the impact of the offending on the child. Those highly significant documents were not before the court at the time when the indication as to sentence was given. All that the court had was the brief submissions of prosecuting counsel which we have summarised. The judge also did not in giving his indication say what relevance he felt the previous conviction from 2016 had to the assessment of the sentence. In fact he said nothing about it except to receive a submission from Ms Phelan that it had all happened a long time ago.

On examination, the facts of that conviction were highly relevant, as our summary of them makes clear. It is also the case that it was not, at least in context, an old offence. It occurred in 2016. The offending against Ms Keats began 2 years later and continued thereafter for 4 years. He moved from one abusive relationship to another without much delay in between them. That was highly relevant, in our judgment, to the appropriate sentence and it is unfortunate that the judge did not deal with it in terms when explaining how he had arrived at an indication as to the sentencing level which enabled, should he later choose to do so, the sentence to be suspended. It is also the case that in addition to missing information, the judge took into account some information which is not normally factored into a Goodyear indication. We refer here to the presence of some mitigating factors which arose principally as a result of the conduct of the offender since 22 October 2022, when he has established a new relationship which is not an abusive relationship and which has produced a child to whom he is, it would appear, a good father. The judge knew something about that. We have already referred to the practice in relation to giving such indications which is that mitigation is taken into account not at the point when the maximum sentence is indicated but when sentence is actually passed and mitigation has been heard in court and can be properly evaluated.

That then led to the adjournment of the case so that a pre-sentence report could be prepared. A pre-sentence report was prepared dated 11 June 2025. It recorded that the offender was by now accepting partial responsibility for the offences. In fact though, when comparing his account given to the author of the pre-sentence report to the factual basis on which he was to be sentenced, it is clear that he was still minimising his use of violence against Ms Keats and was also blaming her and his previous victim, Ms Back, for the events which led to his offending against both of them. It appears from reading the report that, like many controlling and abusive men, he sets firm boundaries for the behaviour of his partners but allows himself the freedom to do whatever he wants whenever he wants to do it. It is questionable whether the account given to the author of the pre-sentence report represents any realistic acknowledgement of the true nature and extent of the offending for which he was in due course to be punished.

The sentencing hearing then took place. The prosecution had by now provided a Sentencing Note which did set out a summary of the facts and some submissions in detail about categorisation. In this note the prosecution submitted that the controlling and coercive offence was a category 1A offence because of the prolonged period of time over which it lasted and the serious harm which it caused. Category 1A has a starting point of 2 years and 6 months with a range of 1 to 4 years, 1B which was the category mentioned in passing at the Goodyear hearing by the defence counsel has a starting point of 1 year and a range of 26 weeks up to 2½ years. The prosecution submitted that the grievous bodily harm offence involved category 3 harm and culpability C, because it was a spontaneous act which caused it. That was a change from the position as understood by the judge at the previous hearing.

The defence now advanced the further mitigation to which we have referred in passing. There was a new statement from Jessica Back which confirmed how important the offender is in the lives of the two children which he and Ms Back had had together during their relationship. They were now aged 11 and 10. He was providing some financial support for them and playing a full part in co-parenting them, as she described it. She expressed a fear that if he were to be imprisoned, she would suffer financially because she would have to reduce her hours of work and she would of course no longer be able to enjoy the benefit of support from him for the children. The children would, she thought, be upset by his absence.

The offender's new partner, Holly Bramley, also made a statement. They met in November 2022, just a few weeks after the offender had assaulted Ms Keats, and now have a baby together. She said he is a good father to this baby and to his children by Jessica Back. She has a child from an earlier relationship and she describes how the offender is devoted also to that child. She is concerned about the financial consequences for her family if he is imprisoned and about the impact of his absence on those children. There was also a statement from her cousin confirming some of this, and from the offender's employers speaking highly of him.

The judge passed the sentences we have already described above. Unfortunately the recording machinery at the hearing failed to operate properly so we do not have a transcript but we are extremely grateful to counsel for both sides and to the judge for creating a reliable note on the basis of which we can see how the judge proceeded. He clearly appreciated that he was dealing with a very serious offence. He described the offender as a dominant bully, and how his offending had had a deep-seated effect on the victim and referred to the contents of the victim personal statement and a community psychiatric nurse's letter. These offences therefore crossed the custodial threshold and the judge said 2 years was appropriate. He had indicated that at the previous hearing and could see nothing to change his mind. He then moved to consider the imposition guideline in deciding whether or not that 2-year term should be suspended. He identified from the pre-sentence report that there was a realistic prospect of rehabilitation and strong mitigation because of the passage of time during which there had been no further offending. Further, there was evidence that the offender was no longer drinking alcohol to such an extent that it affected his behaviour as it had in the past. The judge saw positive signs in all the material that had been placed before him. He said of the previous conviction against Ms Back that he had "only one previous conviction which was old and he was fined". The judge said in conclusion that he was "just persuaded" that he could suspend the sentence and did so.

The Solicitor General submits that that approach in sentencing was flawed in a number of respects. We were invited to consider the decision of this Court in R v Timpson [2023] EWCA Crim 453, where at [22] and [23] the Court made some observations about the relevance of delay in cases where the principal cause of it is the fact that the person concerned did not plead guilty until very late in the day. As a mitigating factor on its own in those circumstances, it is of very little significance for reasons explained by the court in their judgment. Without a transcript it is not entirely clear precisely what significance the Recorder attached to the passage of time in arriving at the sentence that he did but it does appear that he thought it was a factor of some importance.

The Solicitor General submits that the approach taken by the judge of imposing a sentence on controlling or coercive behaviour as the lead offence to comprehend all the criminality in the case, accompanied by a concurrent term in relation to count 5, was appropriate. But it is submitted that the proper classification of this offence was a category A1 offence, and that the judge may have been persuaded otherwise by the reference to category 1B which occurred during the Goodyear hearing and nothing occurred at the sentencing hearing to suggest that he had corrected that in his own mind if he did. His sentencing remarks do not deal with the categorisation for guideline purposes of either of these offences, apparently because the judge took the view that he had already dealt with that at the previous hearing. Therefore, says the Solicitor General, 2½ years as a starting point was appropriate for that. In relation to the offence in count 5 the Solicitor General takes a different approach to categorisation from any that has previously been taken. It is submitted that the proper categorisation was 3B. By the time of the sentencing hearing harm category 3 was common ground because the broken arm would not be permanent or irreversible and it would be likely to recover quite quickly. The Solicitor General however says that for the purposes of culpability the spontaneity of the action which caused the broken arm should not have been regarded as a factor taking it into the lowest category. That is because this assault occurred during a prolonged period of violence and there was, in truth, nothing spontaneous about it at all.

This is a difficult case to deal with on a Reference of this kind. The classification of the offences for guideline purposes was not arrived at by the judge either at the Goodyear hearing or at the sentencing hearing with precision or certainty. There were some procedural errors in relation to the giving of the Goodyear indication. The most significant of those, in the circumstances of this case, was the decision to give the indication in the absence of any victim impact material which was likely to be relevant and necessary to decide the category for both culpability and harm. In the absence of such material, where it is necessary, it is unwise for judges to be drawn into giving indications of this kind.

We do, of course, understand that the judge appreciated that it might be that an appropriate resolution of this case could be arrived at on the day when it was listed for trial. We have no doubt that that is why he went out of his way to attempt to assist the parties by giving the indication that he did. We do not criticise his desire to assist in arriving at a satisfactory resolution. However, the flaws in the process which we have identified were significant. It would have been better if he had not given this Goodyear indication on the ground that it was not safe to do so until the harm to the victim and child had been properly investigated.

So far as the proper sentence, leaving the Goodyear indication aside, for this offending, having regard to all the circumstances which we have described, we accept the submission of the Solicitor General. We consider that for the reasons we have summarised, a sentence of 32 months or thereabouts would have been the appropriate result given that a guilty plea was entered to those two counts on the day of trial. The logic of the way in which the guideline classification has now been approached and the balancing of the aggravating and mitigating features is impeccable and the result one which we are content to endorse as representing the least sentence which should have been passed. It does not however follow in our judgment that we should simply move to increasing the sentence to that level and imposing it.

In the particular circumstances of this case, we do not feel it right to ignore the Goodyear indication that was given. We of course understand that the offender was aware that if he pleaded guilty in reliance upon it, he might find, in the fullness of time, that a different and more severe sentence was substituted for it by this Court. He knew of this risk and we also emphasise he was not promised that he would not be facing a prison sentence. The only indication that was given was that the sentence would not be longer than 2 years.

In circumstances where a Goodyear indication ought not to have been given and where the process which resulted in it was less than perfect, we would be entitled simply to pay no regard to it at all. We consider that we should, in the circumstances of this case, in the interests of fairness, take what is an unusual course and have some regard to what the judge said. It follows from what we have already said that the judge's sentence of 2 years suspended, as a suspended sentence order, was unduly lenient. The judge ought to have imposed a sentence that was longer than 2 years and thus an immediate term.

Having regard however to the circumstances we have already described and to the fact that the offender has performed some of the hours of unpaid work which he was required to do, and that his response to the suspended sentence order has been very good as confirmed by the author of a pre-appeal report, we consider that we should give limited effect to the Goodyear indication. We will limit our sentence to this extent: the sentence imposed by the judge on counts 1 and 5 will be quashed, and will be replaced by a sentence of 2 years' imprisonment concurrently on each and that sentence will not be suspended: it will be an immediate term of imprisonment. That is a sentence which is less than we consider that the judge ought to properly have imposed but we consider that this is a fair approach to take in the present circumstances. The suspended sentence order requirements of course fall away in those circumstances, but the restraining order that the judge imposed will stand. Any other orders such as surcharge and the like are also unaffected.

MS PRZYBYLSKA: My Lords, the offender is not on the link. It will be necessary for my learned friend to convey to those who instruct her, to convey to him, that he will need to surrender. I understand the nearest police station to his known address is Ripley. Is that right, Ms Phelan?

MS PHELAN: That is correct, yes.

THE VICE-PRESIDENT: Thank you. He must surrender to Ripley Police Station by 4 o'clock this afternoon. He will be aware of serious consequences for him if he fails to do so.