R v David John Smith [2026] EWCA Crim 915
[1]The victim of these offences is entitled to anonymity, pursuant to the Sexual Offences (Amendment) Act 1992. During her lifetime no matter relating to her may be included in any publication if it is likely to lead members of the public to identify her as the victim of this offending. We do not propose to name her in the course of this judgment.[2]This is a renewed application for leave to appeal against sentence, following refusal by the single judge.[3]On 12 August 2024, following re-arraignment on the day of trial in the Crown Court at Newcastle Upon Tyne, the applicant changed his plea to guilty of one offence of assault by penetration, contrary to section 2 of the Sexual Offences Act 2003, and one offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences against the Person Act 1861. These offences were charged on indictment I0U55053323.[4]On 7 May 2025, again on the morning of trial at the same court, the applicant on re-arraignment changed his plea to guilty of one offence of criminal damage, contrary to section 1(1) of the Criminal Damage Act 1971, and one offence of having an article with a blade or point, contrary to section 139(1) of the Criminal Justice Act 1988. These offences were charged on indictment 10U50003223.[5]On 21 July 2025, the applicant was sentenced by Her Honour Judge Clemitson on the assault by penetration to an extended sentence of seven years, comprising a custodial term of four years and an extended licence period of three years. Concurrent terms of imprisonment were imposed of eight months for the assault occasioning actual bodily harm, one month for the criminal damage, and 16 months lor having a bladed article. Additionally, the applicant was made subject to a restraining order for six years.[6]The victim and the applicant were in a relationship from 2018 until December 2022, during which he was controlling and jealous. She tried many times to end the relationship but could not, due to how controlling he was. She correctly suspected that he was in another relationship.[7]The offences on indictment 10U55053323 occurred on the evening of 7 May 2022. The victim and the applicant had earlier argued when she saw a message from another woman on his phone. That evening the applicant came to her house, where they ate pizza. A further argument took place when she saw another message from the same woman on the applicant's phone. She asked to see it. The applicant lost his tempter and threw his phone against the wall. He was shouting. He threw pizza at the walls of the victim's house, at her television, and at her blinds. He spat the pizza he was chewing into and smeared it onto her face.[8]The victim shouted at the applicant to leave several times. He went up to her and forcefully put his left hand around her neck to hold her against the wall. He squeezed her neck with such force that she thought she was going to pass out. He put his right hand down her underwear and inserted his fingers into her vagina. The victim feared that he was going to kill her. She pushed him to get him to stop, which he then did. As he left, he threw her children's schoolbags out of the front door.[9]The applicant was arrested and interviewed. He denied spitting pizza. He could not say if there had been a sexual encounter, but averred that had they done so, it would have been consensual. He was released on bail.[10]The second set of offences occurred in January 2023, by which time the victim and applicant had separated. At around 1.50 am on 3 January, the victim was at home with her children when she was awoken by an external sound. She heard further bangs which sounded like an impact with a solid object. Although scared, she went downstairs in order to protect her children. She found that her kitchen window had been smashed. The police were called. A knife was found in her back garden.[11]The applicant told another woman with whom he had been in a relationship that he had ridden his bicycle to the victim's house and had gone through the back garden as he knew that there was a Ring doorbell at the front. He put socks over his shoes to prevent footprints. He had a knife. He said that he did not know what he was going to do with the knife, or if he was going to hurt the victim. He tried to gain access via the kitchen window, but it smashed and he left the knife behind. He went home and changed and washed his clothes.[12]The applicant was arrested. He denied involvement in both offences in a prepared statement at interview.[13]The applicant tendered an acceptable basis of plea for the sexual assault in which he said that he had lost his temper with his partner, had briefly held her against the wall by her neck for a few seconds, and had inserted his fingers into her vagina. In a further basis of plea he said that he had the knife only to assist in opening the window.[14]In an impact statement, the victim spoke of the applicant leaving a trail of devastation to her and to her two children, in consequence of which she suffers with anxiety and depression. Her 13 year old daughter suffers badly with anxiety and intrusive thoughts, and has needed months of therapy.[15]The applicant was aged 40 years at the time of sentence. He had 15 convictions for 24 offences between 1998 and 2023. In February 2023 he received a conditional discharge for an offence of stalking. In November of that year, in the Crown Court at Durham, he was sentenced to 32 months' imprisonment for controlling and coercive behaviour and to a consecutive term of 28 months' imprisonment for perverting the course of justice. These latter offences were committed against the woman whom the applicant was seeing at the same time as the victim. The index offences occurred within the same time period. The applicant's release date for the earlier sentence was to be 11 May 2025, but he remained in custody awaiting sentence for the offences the subject of this appeal. His sentence and licence expiry date for the Durham offences is 4 February 2028.[16]The author of the pre-sentence report recognised that the applicant had undergone courses in custody and had engaged well. It was to be hoped that this will have enabled him to develop skills to sustain a healthy relationship in the future. However, she remained of the view that the applicant presented a high risk of causing serious harm to the victim, the other woman with whom he had been in a relationship, his ex-wife and any future partner. He would need to demonstrate a period of stability within the community before risk could safely be reduced.[17]In her careful and detailed sentencing remarks, the judge recognised that the offences involving the assault by penetration were short-lived, but observed that it takes only a second for a woman held by the throat by an enraged man to begin to fear for her life. It does not take a great deal longer than that for her life to be in real danger. The applicant had been drinking, was out of control and desperate to regain control of his relationship, which made him highly dangerous in that moment. She acknowledged the work and effort that the applicant had made in custody.[18]The judge placed the assault by penetration into category 2B of the relevant sentencing guideline. It fell within category 2 harm, as violence was used which was beyond that inherent in the offence. That afforded a starting point of six years' imprisonment, and a range of four to nine years. She found that the offence was aggravated by the fact that it took place within a domestic relationship, in the victim's own home, and whilst the applicant was in drink. There was some, albeit limited, degrading treatment beforehand.[19]The judge found mitigation in the applicant's difficult background and in the steps that he had taken to address his offending in custody. She specifically accepted the basis of plea, for which she made some limited reduction. She said that it was to be limited because the seriousness of the offence was in the violation itself, rather than how long it lasted.[20]The judge placed the offence of assault occasioning actual bodily harm within category 3A of the relevant guideline, which affords a starting point of 36 weeks' imprisonment, and a range of a community order up to 18 months' imprisonment. The offence was aggravated by the applicant's previous convictions, the domestic context and the fact that the applicant was in drink. The judge made a downward adjustment by reason of the short-lived nature of the assault.[21]The judge placed the offence of having a bladed article within category 1A of the relevant guideline. There were young children in the house, and, had he been discovered, the applicant risked causing serious alarm or distress. This afforded a starting point of 18 months' imprisonment, and a range of one to two and a half years. It was aggravated as it was committed at night and at the home of a previous partner he had abused.[22]In mitigation, the judge said that the children were likely asleep at the time and did not see the applicant.[23]Viewed alone, the judge considered that the offence of criminal damage would not cross the custody threshold.[24]The judge afforded ten per cent credit for the applicant's guilty plea to all offences. She further had regard to the principle of totality. She recognised that the applicant had been in custody since February 2023, when he was remanded in custody for the Durham offences. Had he been sentenced for those and the index offences together, she accepted that there would have been an appropriate reduction for totality. For that reason she ordered the sentences for the bladed article and criminal damage offences to run concurrently, where otherwise she would have ordered them to run consecutively to the other term imposed.[25]The judge found the applicant to be dangerous. She observed that, whilst he had done a great deal of work in custody, it had yet to be seen how effective that was when put to the test in the community in the context of disharmony in an intimate relationship. She concluded that the limited licence period for the index offences provided too little protection in the event that the applicant is unable to put into practice what he had learned in custody, and a further modest period of extended licence was therefore warranted and necessary.[26]The applicant renews his application for leave to appeal on three grounds. First, it is said that the judge adopted too high a notional sentence after trial for the sexual assault. Relying on the brevity of the time that the applicant held the victim by the neck, Miss Hall submits that the violence was not beyond that inherent in the offence, and that the appropriate category was therefore 3B, with a starting point of two years' imprisonment, and a range of a high level community order to four years' imprisonment. She submits that if the offence did fall within category 2B, there should have been a significant and further reduction in recognition of the basis of plea, the delay in the matter coming to trial, and the mitigation, which she submits is strong, in the applicant's significant work in custody to address his problems, which has gone beyond what was expected of him.[27]Secondly, it is said that the judge did not sufficiently apply the principle of totality. Miss Hall submits that the effective reduction of 16 months was insufficient in all the circumstances of the case, and particularly in light of the custodial term previously imposed.[28]Thirdly, it is submitted that the judge was wrong to find the applicant dangerous and to impose an extended sentence. Miss Hall submits that the fact that an alternative to custody was proposed showed that the applicant could be managed in the community; the test was therefore not met. Even if it were met, she submits that there were good reasons not to impose an extended sentence.[29]We have reflected on these submissions, but find ourselves unable to accept them. The judge was not only entitled, but was right, in our view, to place the sexual assault within category 2B. The violence in squeezing the victim's neck, albeit for a short time, was beyond that inherent in the offence. Even if the offence fell within category 3B, the assault would have taken the appropriate sentence to the top of the sentencing range. The judge made a significant reduction to account for the short-lived nature of the assault and for the applicant's mitigation. We are unpersuaded that the custodial term of four years' imprisonment was manifestly excessive.[30]We also consider it unarguable that the judge erred in finding the applicant dangerous. His offending against various partners clearly showed that he was. It is to his credit that he has worked hard to address his issues in custody, but the judge was, in our view, right to observe that it is not yet known whether the applicant is able to put what he has learned into practice. An extended sentence is not arguably manifestly excessive or wrong in principle.[31]We are also unpersuaded that the judge arguably took insufficient account of totality. She recognised that the appellant had been in custody on the other matters and that allowance had to be made. By making the sentences for the latter offences concurrent, when they otherwise would properly be consecutive, she made in our judgment sufficient allowance for totality in the way that she set out.[32]It follows that we are unpersuaded that the total sentence imposed on the applicant was arguably manifestly excessive.[33]Accordingly the renewed application for leave to appeal against sentence is refused. ________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________