About this case:

• Citation:
  [2025] NICA 10
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lord Justice Treacy

Delivering judgment for the Court of Appeal, Lord Justice Seamus Treacy remarked that “it is the duty of sentencing judges in Northern Ireland to give effect to the legislative intent of our own local Assembly which brought in this legislation. It has applied a maximum penalty of 14 years to the offence of NFS in an effort to improve protection for victims of attacks like this. It has done so to reflect public concern that domestic violence has become such a pervasive scourge on society in this jurisdiction.”

Ian Turkington KC with Joseph McCann appeared for the appellant, instructed by Patrick Fahy & Co. Solicitors. Bobbie-Leigh Herdman appeared for the Crown, instructed by the Public Prosecution Service.

Background

The appellant pleaded guilty to four charges including one count of non-fatal strangulation contrary to s.28 of the Justice (Sexual Offences and Trafficking Victims) Act (NI) 2022 arising from incidents of domestic violence in August 2023.

The offences to which he pleaded guilty were aggravated by reason of their involving domestic abuse contrary to s.15 of the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021, i.e. the ‘domestic abuse aggravator’.

Sentencing

The sentencing judge noted that there were no local guideline cases involving sentencing for non-fatal strangulation and that the English case of R v Cook [2023] EWCA Crim 452 relied upon by the appellant was of limited assistance where the English offence carried a maximum sentence of five years’ imprisonment whereas the Northern Ireland equivalent offence carried a maximum penalty of 14 years’ imprisonment.

The judge considered non-fatal strangulation as the lead offence in the case and found the starting point to be 36 months’ imprisonment, increased by the ‘domestic abuse aggravator’ to 48 months and reduced by the maximum one-third plea reduction to 32 months.

The appellant appealed his sentence, on grounds inter alia that the starting point for his sentence was too high and that the application of the domestic abuse aggravator resulted in an excessive uplift and double-counting of aggravating features.

The appellant was granted leave to appeal on grounds that there were no sentencing guidelines for the offence of non-fatal strangulation in Northern Ireland and that guidance was required on the appropriate methodology to be adopted when applying the domestic abuse aggravator.

The Court of Appeal

As to the starting point of the appellant’s sentence, Lord Justice Treacy noted that although the appellant sought to rely on the guidance in respect of the offence of non-fatal strangulation in other jurisdictions, the maximum sentences in England and Wales and New Zealand were much lower and so were not comparable with the offence in Northern Ireland.

Furthermore, the court considered: “One way to protect vulnerable people from abusive behaviours is to have available high sentences designed to deter offenders from engaging in abuse. NFS is a particularly risky behaviour where it is just too easy for perpetrators to cause catastrophic damage to victims. We have no doubt that the Assembly intended to deter such behaviour by giving the option of imposing a deterrent sentence on those who engage in it.”

The Court of Appeal rejected the appellant’s claim that the starting point of his sentence was too high where the injured party “did not lose consciousness or suffer any other distressing sequalae of strangulation such as loss of bladder or bowel control”, finding that those factors were not prerequisites for a “finding of high harm” in cases of non-fatal strangulation in light of inter alia the potentially severe and lasting psychological harm caused by strangulation.

The Lord Justice explained that “prior to recognition of NFS as a separate offence, it was difficult to bring incidents of this nature under other offences such as assault, due to the non-observable nature of the injuries” and that non-fatal strangulation previously came “under common assault charges with limited sentencing options, failing to recognise the gravity of the offence and its disproportionate impact on women”.

The court was satisfied that out of a maximum penalty of 14 years’ imprisonment, a starting point of 36 months for harm which was assessed as ‘medium’ was appropriate in all the circumstances. 

The court also rejected the appellant’s contention that the trial judge wrongly considered as an aggravating factor that there were repeated instances of strangulation in the case, where during plea discussions it was agreed that two of three instances where “hands were laid on the neck of the IP” would instead be treated as part of the assault occasioning actual bodily harm charge.

Lord Justice Treacy pointed out: “The unchallenged evidence in the case is that on these three occasions hands were laid on the neck of the victim and sufficient force was used to ‘pin her’ into positions of the appellant’s choosing. The judge is both entitled and obliged to have regard to these facts when assessing the sentence due for the charges in play.”

The appellant also alleged that the sentencing judge ‘double-counted’ aggravating features of his case, listing as separate factors that he had a relevant record and had completed probation courses previously, despite all persons previously convicted having received a sentence of some kind.

The Court of Appeal explained that there was no double-counting and that both matters were relevant to sentencing where it is “self-evident that an appellant’s previous record may be relevant when assessing his culpability for any new offence with which he is charged” and where the appellant had the benefit of courses on alcohol abuse and domestic violence but “has shown himself unable or unwilling to make the change that is always possible for him”.

Failing to find a legal error in the sentencing judge’s treatment of the appellant’s mitigating factors or in the reduction applied for his guilty plea, the Court of Appeal moved to consider the application of the domestic abuse aggravator.

The Court of Appeal considered that the proper method was firstly to identify the lead offence, secondly to calculate the starting point having regard to all aggravating and mitigating factors except for the statutory aggravator and plea, thirdly to apply the plea reduction, and then finally to calculate an uplift and to apply that to reach the final sentence.

Lord Justice Treacy identified that if those steps had been followed in that order by the sentencing judge, the final sentence would properly have been 36 months instead of 32 months. The court considered that it would be unfair to now change the sentence imposed given that the sentence was passed in the absence of relevant guidance. 

As to sentencing guidance, the Court of Appeal confirmed that “a starting point of 36 months is appropriate for NFS cases where the harm is assessed as ‘medium’. Where harm is assessed to be ‘high’, the starting point will likely exceed 36 months as is necessary and justified by the level of harm actually inflicted in the case. We do not set a precise figure for this because the research evidence shows that the harms caused by NFS are multiple and highly variable.”

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

The King v Darryl Haughey [2025] NICA 10