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The Court of Appeal has declined to increase the sentence of a man jailed for four years and eight months after choking his lover to death during consensual sex.
Sam Pybus, 32, pleaded guilty to the manslaughter of Sophie Moss after he applied pressure to her neck at her home in Darlington in the early hours of February 7.
Pybus was originally charged with murder, but a Home Office pathologist found that the amount of pressure applied to the vulnerable mother-of-two’s neck was towards the lower end of cases which resulted in death.
The sentencing judge accepted the married defendant did not intend to kill and his remorse was genuine, giving him a sentence of four years and eight months in prison in September.
The Attorney General’s Office challenged the sentence as being “unduly lenient”.
But after a hearing on Friday, the Court of Appeal declined to change the sentence.
Pybus appeared via video link from Holme House prison for the approximately two-hour hearing, wearing a grey long-sleeved shirt.
Attorney General Suella Braverman QC told the Court of Appeal that the mother-of-two could not consent to any act after she became unconscious, and that the risk should have been “obvious” to Pybus.
The Attorney General said: “Sophie Moss could not, and did not, consent to being strangled beyond the point of unconsciousness.”
She argued that any consent the 33-year-old gave was “limited” to the restriction of her breathing to increase her pleasure during sex.
“Indeed, once unconscious, she was no longer capable of consenting to anything at all,” Ms Braverman said.
She continued: “In order for Sophie Moss to have died at the hands of the offender, it was necessary for him to strangle her to the point of unconsciousness and beyond.
We are not persuaded that the judge was wrong in categorisation, was wrong in the uplift he applied... or was wrong in the element of discount that he gave for mitigation and then for his plea of guilty
Lady Justice Macur
“To compress her neck for long enough that injury was caused and to leave her in a state in which she was unable to do or say anything to prevent further harm from coming to her.”
The Attorney General continued: “It may well have been seconds, it may well have been minutes, but it was still strong enough to kill her.
“She would no longer have been an active participant in the act the offender claims she was enjoying.”
Sam Green QC, for Pybus, said there was no evidence about how long he had strangled Ms Moss, calling the Attorney General’s argument “speculation”.
He said: “There must have been some point between unconsciousness and death. What we don’t know, on the evidence, was whether the manual pressure to the neck continued after unconsciousness.
“We don’t know if it even occurred up to the point of unconsciousness, we don’t know when unconsciousness occurred.”
Lady Justice Macur, sitting with Lady Justice Carr and Mr Justice Murray declined the Attorney General’s request to refer the sentence.
“We find on the basis of the facts in this case, on the evidence and not speculation… that there was no error of law which can be identified in terms of the assessment of the judge as being irrational or perverse,” Lady Justice Macur said.
“We do not accept the submission of Madam Attorney General that the judge fell into error by considering the starting point in this case to be identified… as one of six years,” she continued.
Lady Justice Macur agreed with the sentencing judge that “the nature of the evidence was such that it would not be possible to expect a jury to convict this offender of murder” and there was no evidence capable of proving that Pybus intended to kill or cause really serious harm to Ms Moss.
The judge also added that the evidence suggested Ms Moss had consented to the practice of erotic asphyxiation.
“The evidence before the court, and that is independent of the offender, suggests that her participation in that practice was consensual and also initiated by her,” Lady Justice Macur said, adding that her consent was not enough to be a defence to manslaughter.
Lady Justice Macur said Ms Moss’s death “has left a great loss to those who loved her”.
The judge concluded: “Bearing all the circumstances of this case in mind, we are not persuaded that the judge was wrong in categorisation, was wrong in the uplift he applied… or was wrong in the element of discount that he gave for mitigation and then for his plea of guilty.”
After the ruling, Ms Braverman said: “There cannot be any guarantees with how a court will decide any matter, and I referred the sentence to the Court of Appeal because I considered it to be too low.
“The Court of Appeal decided otherwise, I’m disappointed with the outcome but I respect the judgment and I’m grateful to the courts for considering the matter in some detail.
“It’s undeniable that this was a tragic case, a disturbing sequence of events in which Sophie Moss lost her life at the hands of the offender.
“This government is committed to supporting women and girls through the criminal justice system and preventing them from suffering in broader criminal matters.
“We’re here to support victims and that’s our priority.”