Court of Appeal Reduces Sentence in R v Gary Cushen Due to Double Counting and Proportionality

Citation: [2024] EWCA Crim 38
Judgment on

Introduction

This article presents an analysis of the case R v Gary Cushen [2024] EWCA Crim 38, heard in the Court of Appeal, Criminal Division. The judgment provides insights into the principles applied by the court in considering the appropriateness of a sentence for the breach of a restraining order, considering both the specifics of the breach and the defendant’s historical conduct.

Key Facts

The appellant, Gary Cushen, was sentenced to three years’ imprisonment for breaching a restraining order. The key facts leading to the appeal involve a history of domestic violence and harassment against Ms. Mance, including previous convictions for battery, harassment, and breaches of a non-molestation order. The specific breach in question involved Facebook messages exchanged between Cushen and Ms. Mance after Cushen was released from prison on licence.

In assessing the appeal, several legal principles were applied:

  1. Proportionality of Sentencing: A cornerstone principle in sentencing is proportionality—that the sentence must be commensurate with the seriousness of the offence and the offender’s culpability.

  2. Taking Account of Aggravating Features: The previous history of offending is an aggravating feature that can move an offence into a higher category (Category 1A in this case), hence increasing the severity of the sentence within the Sentencing Council Guideline.

  3. Double Counting: The principle which prohibits using the same factor for both categorization and additional aggravation to increase a sentence beyond the identified category range.

  4. Sentencing Guidelines Adherence: The importance of staying within the prescribed range as outlined by the Sentencing Council unless specific and substantial reasons are present.

  5. Plea Consideration: The sentencing should reflect a reduction based on the defendant’s guilty plea, applying the principle of providing some incentive for early admission of guilt.

Outcomes

Upon review, the Court of Appeal found that the initial sentencing by the Recorder elevated the offence to a Category 1A and further increased the sentence on the same basis of previous history, resulting in what was deemed as double counting. The Court of Appeal also noted that Cushen’s actions, while breaching the restraining order, did not involve threats or use of violence and were partly initiated by Ms. Mance. The initial sentence was reduced from three years to 20 months, applying the principle of proportionality and avoiding double counting.

Conclusion

The Court of Appeal’s judgment in R v Gary Cushen highlighted the importance of proper application of the Sentencing Council Guidelines, ensuring that sentences reflect the gravity of the offence without being excessively punitive. It also clarified the necessity of avoiding double counting when considering aggravating features and the need to account for plea reductions. This case serves as a guiding precedent for legal professionals to approach similar matters with a nuanced understanding of the principles behind sentencing decisions, ensuring a balanced approach to justice.