R v Brian Lungley [2025] EWCA Crim 428

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 428Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Tuesday 18 March 2025
Before
LORD JUSTICE JEREMY BAKERMR JUSTICE GOOSEMRS JUSTICE THORNTON
Between
REXCrownV
Between
BRIAN LUNGLEY__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MS C LARTON appeared for Appellant._________JUDGMENT

Introduction

[1]The appellant, Brian Lungley, is aged 50. On 23 December 2024, he was convicted, after summary trial before the Preston Magistrates’ Court, for the offence of Intentional Strangulation, contrary to section 75A(1)(a) and subsection (5) of the Serious Crime Act 2015. He was committed to the Crown Court for sentence, pursuant to section 14 of the Sentencing Act 2020. On 3 February 2025, in the Crown Court at Preston before HHJ Preston, the appellant was sentenced to 18 months’ imprisonment. He appeals that sentence with leave from the single judge. The Offence[2]The appellant and his wife (“the complainant”) were in a long-term relationship for over 10 years and were married for 7 years by the time of the offence. They had a 4-year-old child. Although the marriage had its difficulties, there had been no previous incidents of violence. The appellant is a former soldier who, after a number of years’ service, was discharged on medical grounds. The complainant believed that her husband suffered from Post Traumatic Stress Disorder relating to his service. The appellant did not accept it was a problem. Although he had undertaken some counselling and treatment, he did not continue with it. The complainant’s view was that the appellant’s behaviour became more difficult when he had consumed alcohol.[3]On 11 March 2024, the complainant returned home from work at about 5.15 pm and observed empty bottles of wine which caused her concern. As they were sitting together with their son between them, she asked the appellant why he had drunk so much. This caused him quickly to become aggressive. He shouted at the complainant and accused her of making things up, denying that he had been drinking too much. He told her it was his house and that she must leave. He held her by the jumper and tried to throw her out of the room. He grabbed her by the throat, pinning her against the wall and squeezing her throat to the extent that she was coughing and struggling to breathe. The complainant next remembered being in the hallway when the appellant grabbed her by the throat again and threw her out of the house. Their young son was present throughout the attack and was distressed by what he saw, crying and shouting at his father to stop.[4]The complainant called the appellant’s father, who came to the scene but was unable to calm him down. Once the father left, the complainant called the police. After his arrest he was interviewed and said he had acted in self-defence. Marks, including reddening and later bruising to the complainant’s throat, were visible and recorded photographically for the purposes of the proceedings.[5]The appellant’s antecedent history revealed a single conviction for driving whilst over the prescribed limit for alcohol, a conviction in 2021. He had no other conviction recorded against him.[6]In a pre-sentence report prepared for the sentence hearing, the author proposed an alternative to immediate custody, whilst recognising the seriousness of the offence. It was observed, significantly, that the appellant continued to deny that he had unlawfully strangled the complainant and maintained that he had been acting in self-defence. The Sentencing[7]The judge concluded that the offence fell within Category 2B of the relevant guideline, which was agreed on behalf of both the prosecution and the appellant and is not challenged in this appeal. That provided a Starting Point for sentence of 18 months’ imprisonment and a range of 1 to 3 years. The aggravating factors of seriousness included that the appellant was intoxicated at the time of the offence, it occurred in a domestic context in the home of the complainant, and it was in the presence of a very young child. In mitigation, the judge accepted that the appellant had no significant previous convictions. There was no suggestion of any previous violence within the relationship. He was a former soldier and there were aspects of personal mitigation relating to the death of his mother. Also, it was recognised that the appellant had started to seek help in relation to his drinking.[8]Whilst the aggravating factors of seriousness would have increased the sentence from the starting point, the significant mitigating factors reduced it back to 18 months’ imprisonment.[9]In considering the decision as to whether that sentence should have been suspended and having regard to the Imposition Guideline,

the judge stated:

“I am urged in all the circumstances to suspend the inevitable sentence of imprisonment that must follow, given your lack of previous convictions, the mitigation available to you, in particular that you are seeking some help now. I don’t believe, however, that you are a proper candidate for rehabilitation whilst you continue to deny the allegations, you continue to blame your victim and you still play down any issues that you have and that need to be addressed. In any event, the offence is too serious for anything other than an immediate custodial sentence. I have considered the imposition guidelines and there is nothing that persuades me that anything from the usual course should be imposed in this case.”
The judge imposed an immediate sentence of imprisonment of 18 months. Ground of Appeal[10]The appellant raises a single ground that the decision to impose immediate custody instead of a suspended sentence made the sentence excessive. On behalf of the appellant, Ms Larton, for whose succinct, focused, and well-argued submissions we are grateful, argues that there was sufficient factors in mitigation of sentence to cause the court to suspend the sentence. In failure to do so was unreasonable, and caused the excessive sentence to be imposed. Discussion and Conclusion[11]In our judgment, this offence of intentional strangulation was a serious one for the reasons identified by the judge. The custodial term of 18 months’ imprisonment was entirely correct and is not challenged in this appeal by the appellant. The issue that we must consider is whether the refusal to suspend that sentence was wrong or created an excessive sentence. It is clear to us that the judge addressed appropriately each of the issues required in the decision to be made upon whether the sentence should be suspended, he addressed expressly the Imposition Guideline and the need to balance those factors indicating an immediate and those indicating a suspended sentence. It was a significant feature of this case that the appellant was convicted after trial in the Magistrates’ Court and had maintained his denial of offending to the author of the pre-sentence report. Having taken into account all of the relevant features of the offence and the offender, we are satisfied that the decision made was well within the reasonable judicial discretion available to the judge. Whilst it could be said that some judges might have been persuaded to suspend the sentence, others would not. We are not persuaded therefore that the judge’s decision to refuse to suspend the sentence was either wrong or led to an excessive sentence.[12]For this reason, the appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 13. Email: rcj@epiqglobal.co.uk