R v Michael Bussey

MR JUSTICE SOOLE: On 2 June 2025 in the Crown Court at Durham, the appellant, then aged 39, was sentenced for two offences: assault occasioning actual bodily harm, contrary to s.47 Offences Against the Person Act 1861; and breach of a non-molestation order, contrary to s.42A Family Law Act 1996. He had previously been found guilty of the s.47 assault by a jury and had pleaded guilty to the s.42A offence. The trial judge sentenced him to 14 months' imprisonment for the assault and 3 months' imprisonment consecutive for breach of the non-molestation order, namely a total of 17 months' imprisonment. With the leave of the single judge, the appellant contends that in each case the sentences were wrong in principle and/or manifestly excessive.

At the time of these offences, the appellant and the complainant Gemma Bussey had been married for about three years and lived together in Newton Aycliffe. They had no children together. Living with them was the complainant's 8-year-old daughter from a previous relationship. The appellant's two children from previous relationships lived with their respective mothers.

On 12 March 2024, at about 4.15 p.m., the appellant, the complainant and her daughter were at home. An argument broke out between the appellant and the complainant. On the complainant's account, the appellant came towards her with his fist. She told him to leave her alone. He hit her with his right hand to the back of her head and then jumped onto her back, putting her into what she described as a choke hold with one of his hands covering her mouth and nose. She lost consciousness. When she came round they were both on the floor and she was able to get back to her feet. She told him to leave. He did so, but then came back in and took hold of her in the same way again. She lost consciousness. When she woke up she was lying on her back on the floor. She had an injury to her vagina which was bleeding and described it as "the worst pain I've ever felt in my life". While she was on the ground, he continuously kicked and punched her to the face and head and stamped on her legs. Her daughter could hear the disturbance and was screaming. The complainant left with her daughter and went to a friend's house.

Two days later, on 14 March 2024, the complainant sought and obtained from the Family Court at Darlington a non-molestation order against the appellant pursuant to s.42(2) Family Law Act 1996. The order included a prohibition against communication with the complainant.

Between 1 May and 14 May 2024 the appellant, in breach of the order and without reasonable excuse, communicated with the complainant by phone and text. The Crown accepted that these communications were not of a threatening or abusive nature. On 25 July 2024 the appellant pleaded guilty to this offence.

On a separate indictment the appellant was charged both with the s.47 offence and with an offence of intentional suffocation, contrary to s.75A Serious Crime Act 2015. He pleaded not guilty to both counts. Following a trial, on 22 April 2025 the jury convicted the appellant of assault occasioning actual bodily harm but acquitted him of the offence of intentional suffocation. Sentence on the two indictments was adjourned for a Pre-sentence Report.

In respect of breach of the non-molestation order, that Report recorded the appellant's account that he had sent the messages in the hope of restoring his relationship with his wife; and stated that the messages "would not appear to be offensive or threatening in nature but were persistent and sustained".

As to the assault, the Report recorded injuries to the complainant's jaw, back, throat and vagina; medical treatment which included the involvement of the gynaecology department at Darlington Memorial Hospital; and exacerbation of her poor emotional health which included an underlying bipolar disorder. The incident had been in the hearing of the complainant's young daughter and caused her to become distraught.

The Report stated that the appellant was both polite and co-operative in interview, but recorded that he continued to maintain that the assault had not occurred. In all the circumstances, including what the report described as his poor conflict resolution skills and lack of victim awareness, the Probation Service concluded that he posed a high risk of harm to the complainant and a medium risk of harm to the public. This included emotional and psychological harm to children who might witness domestic violence behaviour or incidents.

As to his personal circumstances, the Report noted that he was self-employed full-time as a contractual trainer for security staff; and had had a positive work ethic for the majority of his life. The appellant was of poor physical health due to previous strokes and seizures; and of poor mental health, suffering from anxiety and depression. He was being assessed for autism. As to mental health, this is supported by letters dated 6 December 2024 and 30 May 2025 from his assigned Community Mental Health Nurse.

Whilst noting that the Court might consider the custody threshold to have been crossed, the Report proposed a Community Order of 18 months duration, with a Rehabilitation Activity Requirement of 30 days and a requirement to perform 120 hours of unpaid work. In the event that a custodial sentence was considered necessary, it stated that there were factors present which might make it appropriate to suspend the sentence upon terms of such Requirements.

The appellant submitted a letter to the judge in which he asked account to be taken of his conduct, history and character. As to his employment, he referred to his work in the security industry for many years and gave an example of his ability to defuse situations in that capacity. He stated that 'the allegation' against him had limited the work that he was able to do; and referred to the effect of the 12 March incident on his life, including the loss of his belongings and the effect on his mental health. There was no reference to the effect on the complainant. As to breach of the non-molestation order, he pointed to the screenshot which showed that the first communication between them had been made by the complainant on 8 April 2024. He stated that she had repeatedly harassed him with calls until he answered and that "Over time she convinced me that speaking wasn't a problem as she was dropping all charges and we would be returning to our family life". He concluded that he wished to reassure the Court that he had now learned "that the order of the court is to be upheld regardless of pressure or reassurance from any other source to the contrary".

A character reference from a close friend of 20 years standing spoke to experience of the appellant's qualities in dealing with conflict rationally, but noted that he had a stubborn character and was "still unable to process reasoning or understanding as to why he is in this situation".

The appellant's previous convictions were for offences of non-dwelling burglary, possession of a Taser and resisting or obstructing a constable, all committed on 20 September 2006 and for which fines were imposed.

The Crown's sentencing note contended that the assault fell within category 2A of the relevant sentencing guideline. As to culpability, this was A (high) because of the features of a prolonged/persistent assault and of the vulnerability of the victim in circumstances where she was unconscious at the outset of the attack. As to harm, this was category 2, because falling between categories 1 and 3. This produced a starting point of 1 year 6 months' imprisonment and a category range of 36 weeks to 2 years 6 months' imprisonment. As to breach of the non-molestation order, this was a deliberate breach falling within culpability category B of the relevant guideline; but harm category 3 as causing 'little or no harm or distress'. This produced a starting point of a high level community order and a category range of a low level community order to 26 weeks' custody.

The judge's sentencing remarks first summarised the complainant's account of the assault, including that she had lost consciousness. He then referred to an email from her to the police, it seems dated 14 May 2024, in which she stated that she did not wish to proceed with the allegations; and two witness statements in September 2024 in which she withdrew that retraction and described the appellant's very controlling and manipulative behaviour which had brought it about. The final statement concluded that the appellant "... made me feel guilty and made me feel like I was responsible for the whole incident on 12 March 2024". The Judge then noted from the Pre-sentence Report that the appellant did not accept the verdict of the jury and that the events either did not happen or did not happen in the way the complainant contended. The Judge observed that the Court, and everybody else, must respect the verdict.

The Judge concluded that this was a serious assault falling within category 2A, in terms which reflected the Crown's sentencing note. This produced a starting point of 18 months. The aggravating factors were that the offence was committed in a domestic context and that a child was present in the home. As to mitigating factors, the Judge took account of the absence of relevant previous convictions or any record for violence; his good work record; and his state of health, albeit not impeding his ability to work.

The judge rejected the submission, founded on the Pre-sentence Report, that a non-custodial sentence might be appropriate. Having weighed the aggravating and mitigating factors against the category 2A starting point of 18 months, he imposed a sentence of 14 months' imprisonment.

The judge then considered the further submission that this should be suspended. Noting both the nature of the offence and the absence of remorse, he concluded that only an immediate custodial sentence was appropriate.

As to the breach of the non-molestation order, the Judge accepted that the communications involved no threats but concluded that the breach was "entirely calculated and deliberate" and that its manipulative and sole purpose was to try and persuade the complainant not to give evidence against him. The Judge did not identify the category in the relevant sentencing guideline but concluded that the appropriate sentence before credit for plea was 4 months' consecutive, resulting in a sentence of 3 months' imprisonment consecutive. The Judge also imposed a Restraining Order to prevent the appellant contacting the complainant for a period of 5 years.

On behalf of the appellant, Mr Wootten advances three grounds of appeal. We will deal with all three which are set out in his written submissions. However, he sensibly and rightly focused his submissions on the third ground of appeal.

The first submission was that it was wrong in principle for the Judge to conclude that the complainant was unconscious at either of the two points in the assault which she alleged. Such conclusion was inconsistent with the verdict of the jury which acquitted the appellant of intentional suffocation. The complainant had made clear that it was this alleged method of assault which had caused her to become unconscious. There was no suggestion that she had become unconscious through punches or kicks.

Secondly, the Judge was wrong to conclude that the communications and breach of the non-molestation order were sinister and indicative of control and manipulation by the appellant. His messages in breach of the order were affectionate, as were the responses of the complainant; and at times were instigated by communications from her. There was no basis to go beyond the Crown's acceptance that the messages were innocuous and the harm within category 3, nor to impose a sentence of imprisonment.

Thirdly, that the Judge was wrong not to have suspended the sentence of imprisonment. Mr Wootten submits that the Judge did not give the necessary consideration to the factors identified for this purpose in the Sentencing Council Definitive Guideline for the Imposition of Community and Custodial Sentences and in particular the factors of "Realistic prospect of rehabilitation" and "Strong personal mitigation".

As to the realistic prospect of rehabilitation, the appellant was a person of effective previous good character. Mr Wootten then in his written submissions pointed to the passage in the Pre-sentence Report which by reference to scores in the Offender Group Reconviction Scale ("OGRS") and Risk of Serious Recidivism ("RSR") produced a statistical indicator of a low risk of both general and serious reoffending over two years. As to the Report's conclusion of a medium risk to the general public, this could be managed through the imposition of a Rehabilitation Activity Requirement as recommended in the report. As to the risk to the complainant, she was protected by the Restraining Order which the Court had imposed.

As to strong personal mitigation, Mr Wootten pointed to the evidence of the appellant's poor physical and mental health; together with the loss of his employment, valuable to himself and to those he trained, if sent to prison.

On the other side of the balance, the guideline factors of "Offender presents a risk/danger to the public" and "History of poor compliance with court orders" were not present. That left only the factor of "Appropriate punishment can only be achieved by immediate custody". The Judge should have concluded that this was firmly outweighed by the suspensory factors of rehabilitation and personal mitigation.

Carefully presented and argued as they were, we are not persuaded by any of these grounds of appeal.

As to the first ground, we do not accept that the Judge fell into error in accepting the complainant's evidence that she lost consciousness; nor therefore erred in his conclusion that one of the guideline factors of high culpability, i.e. vulnerability of the victim, was established. We do not accept that acquittal of the offence of intentional suffocation is inconsistent with the finding that the complainant in fact lost consciousness. The Judge was entitled to make that finding. In any event, the point in no way assists in the appeal. On any view, this particularly vicious and sustained assault fell within category 2A of the sentencing guideline. The Judge then identified the significant aggravating factors that the assault took place in the complainant's home and at a time when her young daughter was in the property. He took due account of the mitigating factors as to the appellant's previous character and current state of health. Set against the starting point and the category range, the sentence of 14 months is unimpeachable.

As to the second ground, the Judge was fully entitled to reach his conclusion as to the appellant's motivation for breaching the non-molestation order. It is supported by the coincidence of the messaging period (1-14 May 2024) and the complainant's initial retraction (14 May 2024) and by the complainant's accounts in her witness statements of September 2024. As trial judge in respect of the assault, the Judge had the further advantage of assessing the true nature of the relationship between the appellant and the complainant. He was not bound by the categorisation suggested by the Crown and would have been entitled to conclude that the harm was in category 2. In any event, there is overlap between B2 and B3, the latter having a category range which extends to 26 weeks' imprisonment.

One further point should be noted: the sentencing guideline for this offence observes in respect of category 3 harm that 'where a breach is committed in the context of a background of domestic abuse, the sentencer should take care not to underestimate the harm which may be present in a breach'.

All in all, we consider that the sentence of 3 months' imprisonment consecutive was entirely justified.

As to the third ground, we do not accept that the Judge failed to have full and proper regard to the sentencing guideline in respect of the suspension of custodial terms. Further, the Judge was right not to suspend the sentence of imprisonment.

As to reliance on the guideline factor of 'Realistic prospect of rehabilitation', this is fatally undermined by the evidence which shows an absence not only of remorse but of any insight into his offending or empathy with the victim. This is demonstrated by the Pre-sentence Report, his own letter to the Court and by the reference to which we have referred. This leaves only the personal mitigation.

On the other side of the balance, we do not accept that the factor of risk/danger to the public can be dismissed in the way suggested. Set against the conclusions of the Probation Service on actual risk in respect of this appellant, the purely statistical assessment is of distinctly limited weight. In any event, the Judge was fully entitled to give full weight to his effective conclusion that appropriate punishment could only be achieved by immediate custody. All in all, the factors in favour of that course plainly predominated.

For all these reasons the appeal must be dismissed.