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Criminal Law Update


R v Borsodi [2023] EWCA Crim 899

The last 18 months have seen significant change in the law around intentional strangulation. It started with the introduction of the new offence under section 75A of the Serious Crime Act 2015 which was an important step in recognising the seriousness of this kind of violence where visible physical injury can often be very minor[1]. Statistics show that sadly it remains a pervasive form of violence in a domestic context with 8375 incidents of non-fatal strangulation/suffocation reported in the 6 months following s.75A of the 2015 Act coming into force – approximately 41% of which were alleged to have been committed by an intimate partner or family member of the complainant[2].

There remains no offence specific sentencing guideline for this offence, and so the judgement in the case of R v Cook [2023] EWCA Crim 452 will have been gratefully received with it giving guidance on the approach to be taken for sentence. Most significantly it made clear at [16] that “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.  The starting point will be 18 months’ custody”.

Now this most recent case, R v Borsodi has provided clarification that is likely to have a not insignificant impact on sentencing those convicted of this offence.


In June 2022, the Applicant (“A”) and the Complainant (“C”), his partner, attended a birthday celebration for a family member during which A became uncharacteristically intoxicated. A neighbour heard shouting with A becoming increasingly aggressive and C sounding more distressed.

The neighbour went into her garden, looking over the fence to see into the kitchen, and saw A with his hand gripping C’s throat for approximately 30 seconds whilst C had her baby in her arms.  A released C after the neighbour shouted at him, and C was able to escape from her property with her children to the neighbours.

C was described as being very distressed, crying, had reddening to her neck and had blood around her mouth. The police were subsequently called to the property and A was arrested. When brought before Chester Magistrates’ Court on the 18th of May 2023 A pleaded guilty to one offence under s.75A of the 2015 Act and was committed to Chester Crown Court where he received a 10-month immediate custodial sentence following application of the guidance in Cook by the Learned Judge.

On appeal the case centred around what was said to be a misinterpretation of the first two sentences of [16] in Cook by the Learned Judge such that he had concluded that in a case of this nature appropriate punishment could only be achieved, save in exceptional circumstances, by the imposition of a sentence of immediate custody. The submission on A’s behalf was that were it not for this error, on application of factors identified in the Sentencing Guideline on the Imposition of Community and Custodial Penalties the sentence should have been suspended, and thus the sentence was manifestly excessive.


The Court of Appeal were clear, the approach taken by the Learned Judge was indeed a misinterpretation of Cook – the words “ordinarily the sentence will be one of immediate custody” in the second sentence of [16] were not to be conflated with “save in exceptional circumstances” in the first sentence. Further, the Court of Appeal agreed that had this distinction been made by the Learned Judge then on consideration of the specific aggravating/mitigating factors and application of all relevant guidelines a suspended sentence would have been imposed.  


Although the appeal was ultimately dismissed owing to A’s being in the process of being voluntarily deported, it is nonetheless an important distinction to have been made on a point of principle that should provide clarity.

This is a decision that is not likely to be well received by domestic abuse campaigners some of whom already suggest that abusers are “getting off lightly”[3]. But now that the case of R v Borsodi has made clear that determining the appropriate sentence in strangulation cases requires a discrete two-stage approach (Firstly, are there exceptional circumstances that justify not imposing a custodial sentence and secondly can that custodial sentence be suspended) it will be interesting to see if there is a change to the proportion of defendants convicted of intentional strangulation/suffocation receiving immediate custodial sentences.  

Cooper & Ors, R. v [2023] EWCA Crim 945

This appeal concerns three cases R v Cooper, R v Park, and R v Fletcher. These three cases are not linked save for the fact that their appeals all concern the correct approach to totality when sentencing a defendant for an offence contrary to the Proceeds of Crime Act 2002 (“the 2002 Act”) in respect of a criminal benefit from offences for which the defendant also falls to be sentenced.

All three appeals were dismissed. The Court of Appeal has been clear that their judgment does not ‘say anything which changes or develops the law’ but it makes broader observations about the use of consecutive sentences and may serve as additional guidance to that already set out in the 2002 Act and The Sentencing Council guideline on totality.

The court dealt with each case in turn.

R v Cooper


On 4 November 2022 at Woolwich Crown Court the appellant pleaded guilty to 10 counts of possession of a controlled drug with intent to supply. He also pleaded guilty to an offence of possession of criminal property contrary to section 329(1)(c) of the 2002 Act. He was sentenced on the same day by HHJ Mann KC to 4 years and 6 months’ imprisonment in respect of the drugs offence and a consecutive 6-month term in respect of the 2002 Act offence. The total sentence was therefore 5 years’ imprisonment.

HHJ Mann KC found that the appellant had performed a significant role. The appelent held an operational or management function within the chain, he had an expectation of significant financial or other advantage, and he had some awareness and understanding of the scale of the operation. He was a street dealer, and so each offence fell within harm category 3. HHJ Mann KC imposed concurrent sentences in respect of each of the drug offences. In respect of the 2002 Act offence, HHJ Mann KC  stated that he would have imposed an 8-month sentence following trial, which he reduced to 6 months’ imprisonment in the light of the appellant’s guilty plea.

On appeal it was submitted that the HHJ Mann KC erred in his approach to totality in imposing a consecutive sentence for the offence of possession of criminal property.


The Court of Appeal stated that the 2002 Act offence related to the cash that was found. That cash was not the proceeds of the drugs offences which resulted in the sentence of 4 years and 6 months’ imprisonment. Those drugs had not been sold. The cash related to the proceeds of the supply of other drugs. It therefore amounted to additional offending beyond that which was marked by the sentence of the drugs offences. The judge was therefore right separately to penalise that offending, and to do so by way of a consecutive sentence.

R v Park


On 17 October 2022 the appellant was sentenced by HHJ Campbell to a total of 6 years’ imprisonment for two offences of cheating the Revenue, and an offence contrary to section 327 of the 2002 Act.

The appellant was a director of a company that provided school runs for children with special education needs. It provided these services to two local authorities. The company was registered for VAT. The company invoiced and was paid by the local authorities for work done, charging VAT on the amounts charged. The company, however, did not submit any VAT returns. From 2011, the appellant used staged payments received by the company to purchase a property called Holdfast Hall, for the total price of £3,770,000. Around three quarters of the funds for the purchase price came from the company.

HHJ Campbell imposed a sentence of 4 years and 6 months’ imprisonment to reflect the totality of the fraud offences. In respect of the 2002 Act offence she said that she would have imposed a consecutive sentence of 4 years’ imprisonment but, bearing in mind the principle of totality, she reduced that to 18 months’ imprisonment. It followed that the total sentence was 6 years’ imprisonment.


The Court of Appeal considered that the 2002 Act offence did involve additional culpability due to the calculated purchase of a substantial property using the proceeds of the long running cheat on the Revenue. The property was then used to continue to run the business, continuing the cheat and made it more difficult for the Revenue to recover the funds that were owing.

R v Fletcher


On 19 May 2023 the appellant was sentenced to a total of 13 years and 4 months’ imprisonment for four offences to which the appellant had pleaded guilty. The sentence comprised:

(1)  A sentence of 7 years and 4 months for count 1, an offence of making or supplying articles for use in fraud, contrary to section 7(1) Fraud Act 2006,

(2)  A concurrent sentence of 7 years and 4 months for count 2, an offence of encouraging or assisting the commission of an offence of fraud, believing that it would be committed, contrary to section 45 of the Serious Crime Act 2007,

(3)  A concurrent sentence of 4 years and 11 months for count 3, an offence of possessing criminal property, contrary to section 329(1)(c) of the 2002 Act,

(4)  A consecutive sentence of 6 years for count 4, an offence of transferring criminal property, contrary to section 327(1)(d) of the 2002 Act.

The appellant was the lead administrator of a website, iSpoof, which sold a number of ‘tools’ enabling its subscribers to commit fraud. The value of these frauds exceeded £43 million. The global loss was estimated to be about £100 million.

Count 3 reflected the payments made by subscribers to the iSpoof website. These payments were made by cryptocurrency into cryptocurrency wallets owned by the website. These payments had a total value in excess of £3 million. Count 4 related to the transfer of those subscriptions into cryptocurrency wallets controlled by the appellant, to reflect his share of the proceeds of the offending. This amounted to between £1.7 and £1.9 million.

On appeal, it was submitted that count 3 and count 4 simply represented the transfer of funds which were part and parcel of the offending encompassed within counts 1 and 2. Any additional criminality involved in those counts was therefore minimal and the additional sentence of 6 years was disproportionate.


The Court of Appeal concluded that count 3 and count 4 involved additional culpability beyond the offending reflected in counts 1 and 2 as the offences involved in counts 1 and 2 did not necessarily involve the acquisition of criminal property. The court stated that counts 3 and 4 reflect the additional criminality that is involved in not only making an article to be used in fraud, and encouraging or assisting the commission of an offence of fraud, but also then acquiring part of the benefit of a very large number of individual substantive offences of fraud. The court went on to say that one way of illustrating this concept on the facts of this case is to note that it would be possible for an offender to be involved in committing one of these offences but not the other.


The analysis of these three cases confirm that the key issue in determining the whether a concurrent or consecutive sentence should be imposed for 2002 Act offences is additional culpability and harm. Although this principle is well established, the Court of Appeal has provided additional guidance to both Judges and practitioners setting out examples which may suggest additional culpability and harm is present within a case. Examples of cases include those where the 2002 Act offence:

  • takes place over a different period from the primary offending;
  • involves additional or different criminal property, beyond the proceeds of the primary offending;
  • makes it more difficult to detect the primary offending;
  • involves dealing with the proceeds of the primary offending in a way which increases the risk that victims will not recover their losses, or that confiscation proceedings will be frustrated;
  • creates additional victims;
  • involves additional planning or sophistication, extending the culpability that might otherwise attach to the primary offending;

(7)  assists in the continuation of offending.

The additional guidance will be useful to Judges when passing sentence and practitioners when advising their clients.




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