Salih v Sharif [2004] EWCA Civ 1673

Case No B1/2004/2249[2004] EWCA Civ 1673
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE COPLEY)
Venue Royal Courts of JusticeDate Wednesday, 10 November 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE WALL
MRS JUSTICE BLACK
Between
SHWANY SALIHAppellantv-
Between
SHAHLA SHARIFRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Applicant appeared in person for in personMS CATHERINE PISKOLTI (instructed by Gillian Radford & Co Solicitors, London W10 4RG) appeared for Respondent
J U D G M E N TWednesday, 10 November 2004

LORD JUSTICE THORPE:

Lord Justice Wall will give the first judgment.

LORD JUSTICE WALL: This is an appeal by Mr Shwany Salih against an order made by His Honour Judge Copley on 22 September 2004 in committal proceedings in which the judge sentenced Mr Salih to a total of 18 months' imprisonment for four breaches of an order made on 9 June 2004 by Her Honour Judge Dangor sitting in the Willesden County Court. Mr Salih brings an appeal against sentence only.

[3]The case has a number of extremely unsatisfactory features. First, although relatively minor, the documentation is in a substantial muddle and it is not easy to be clear as to the essential facts. Secondly and more significantly, Mr Salih appears before us today acting in person, his public funding certificate having been withdrawn after the appellant's notice had been filed and at very short notice. This is unsatisfactory for a large number of reasons, not least of which, in my view, is the fact that there is on argument for Mr Salih on the question of proportionality and sentence and, in my judgment, it was most unfortunate that the Legal Services Commission refused to grant funding to him on the basis that his application was without merit. In those circumstances we have not had the advantage of argument put forward by counsel on Mr Salih's behalf. We have helpfully heard from Miss Piskolti on behalf of the respondent to the appeal, Mr Salih's wife. We have put to her the points which were of concern and she has helpfully assisted us on them.[4]Against that background, I turn to deal with the essential facts. Mr Salih and Miss Sharif are husband and wife and I shall henceforth call them that. They originate from Iraq, although the husband has been living here since 1989. They married in 2002, although they have a daughter born from their relationship, R, who was born in December 1996. The wife's case on the documentation is that the husband was violent to her throughout their relationship.[5]The parties separated on 15 March 2004 when the wife left the matrimonial home taking R with her. Her case is that she was effectively thereafter locked out of the house, could not get back in and that the husband changed the locks. She also recounted an incident on 26 February 2004 in which she alleges that she was assaulted by the husband. Her case is that thereafter he continued to harass and threaten her, including threats to take R to Iraq. He went to the school where R attended and he followed Miss Sharif about. As a consequence, on 21 April she applied to the Willesden County Court for conventional occupation and non-molestation orders under Part IV of the Family Law Act 1996. She also obtained a prohibited steps order preventing the husband from removing R from her care or from the jurisdiction. Those orders were continued. In due course a power of arrest was attached. It is difficult to follow the chronology of hearings, but it may not particularly matter.[6]On 29 April 2004 the husband made a statement in answer to the wife's allegations. He made an allegation against her of infidelity, and he denied being violent. The theme that she was being unfaithful appears to dominate much of his evidence, and indeed featured in what he said to us today. On 8 June 2004 he took proceedings under the Children Act 1989 seeking either residence of R or contact with her, and asserting that he had been R's main carer until the separation because the wife had gone out to work to earn money and he had not. The final return date for the Part 4 orders was 9 June.[7]The proceedings on that day were contested, and we have a note of Judge Dangor's judgment. She clearly preferred the evidence of the wife. She made the relevant orders against molestation and in favour of occupation. She gave directions in the residence proceedings and made an order which appears I think to be by consent, certainly not resisted, that the husband should have contact with R every Saturday from 12 June 2004, that is three days after the hearing. She also ordered the husband to vacate the matrimonial home, and attached a power of arrest to the orders.[8]The first occasion of contact was 12 June 2004, and a disgraceful incident occurred on that day in relation to contact about which versions no doubt differ and which are now the subject of proceedings in the crown court. Once again the wife's case is that the husband assaulted her; kicked her when she was on the ground, and made threats to her. He, I think, accepts that he used an element of violence on that day but denies the extent of it. As I say, he was, in relation to that incident, arrested, charged and will in due course come before the crown court in relation to it.[9]On 3 August 2004 the wife made a statement in which she asserted that the husband had threatened to kill her, R, and himself. On 23 August 2004 the husband was arrested under the power of arrest in Judge Dangor's order, brought before the circuit judge at Willesden and remanded in custody until 31 August 2004. He remained in custody until the hearing before Judge Copley on 22 September 2004.[10]Helpfully, a schedule of allegations dated 10 September 2004 was produced. There were four. The first was that on 5 August 2004 the husband had telephoned the wife on her mobile telephone a number of times and during one or more of these calls he made a threat to kill her and to kill himself. Secondly, on 6 August 2004 at approximately 12.55 pm it was alleged that he telephoned her on her work telephone number and made the following threat:
"I will do worse to you than I've already done, you will see."
He then telephoned her on her work telephone number on two more occasions that day. The third allegation on 7 August was that at about 1.00 pm he telephoned the wife on her work telephone number a further three times, and finally, a week later on 14 August 2004 at about 6.45 pm, he attended her place of work and came to the counter where the appellant was working. He said. "I will kill you if you do not let me see R." It is right to right to say that, consequent upon that incident, the wife felt unable to continue with her employment and was obliged to resign. Effectively she lost her job as a consequence of it.[11]We do not have a transcript of Judge Copley's judgment. Because of the unfortunate state of the representation, what we have is counsel's note upon which someone else - I do not know whether it is Miss Piskolti or not - has written amendments. It makes it therefore slightly difficult to read, but nonetheless the thrust of the judge's judgment is pretty clear. He recites the history. He goes back to the judgment of Judge Dangor; how Judge Dangor had heard evidence and listened carefully, and concluded that the wife was a more impressive and truthful witnesses. He reminded himself that was not binding on him, but nonetheless he had, having heard the evidence, come to the same conclusion. He said:
"I am in no doubt at all that the evidence the wife has given to me, regarding these various incidents, that there were threats to kill (which were matters in dispute) is true. I fully accept that the [husband], in his desire to have contact, made those threats to his wife; and am equally satisfied that as far as she is concerned, she believed he would carry them out. She said she was very frightened because, he had said to her on 12/06, 3 days after HHJ Dangor's Order, 'there was no-one who could help her - the Court or her brothers'. She also told me that he said it did not matter what the Court said nor if he went to prison. I'm in no doubt at all that she believed he would carry out his threats and now lives in fear of him doing so. Out of that fear she has given up her work ... and is living in temporary bed and breakfast accommodation... I am in no doubt at all of her fear of further molestation, and her fear of threats and violence from him."
The judge then goes on to point out that the husband accepted the use of violence on 12 June 2004, although not to the full extent, and described him as giving an indication of the "entirely cavalier attitude the husband has for orders of the court." The judge goes on:
"Not only has he by his own admission committed a breach of the Order, 3 days after it was made, but by his further admission he has been guilty of further breaches of the Order by harassing and intimidating on the telephone and attending her place of work."
He goes on in similar vein. At paragraph 10 of the judgment he said:
"I am quite satisfied that on 5, 6, 7 and 14 August Mr Salih was in breach of the Order. On 05/08 I am satisfied that he threatened violence, threatened to kill in breach of #3. Again I accept that the next day on 06/08 he threatened to 'do worse than he had already done' in brief of #3; on 14/08 in breach of #3 he threatened that he would kill her and on 07/08 he was in breach, on his own admission, of #4. I have to determine what sentence is appropriate for those breaches. It seems as indicated already that the [husband's] regard for Court Orders is cavalier in the extreme. In respect of aspects of if he says he respected the Court orders in the past. It is clear that he has not. No notice was taken of his exclusion from Harrods. Any threat to kill is a serious matter, and in criminal Courts carries a substantial period of imprisonment, particularly where it is not one isolated threat ... but repeated. It's clear that HHJ Dangor found he threatened to kill her on 15 March 2004. I find that he repeated his threat on 05/08 by implication, and on 14/08. I am satisfied that the Applicant believed him and was and is very frightened that such a threat will be carried out. I have listened very carefully to all that has been said on his behalf by Counsel, without a great deal of straw to build her bricks. When I consider all aspects of this matter the proper sentence is one of immediate imprisonment. For the 05/08 breach he will serve 6 months in prison; for 06/08 6 months consecutive; for 07/08 3 months concurrent; for 14/08 6 months consecutive. That is eighteen months in total."
[12]An appellant's notice was filed in which the main ground of appeal was that the sentence was manifestly excessive, in that findings not of actual violence but of threatening and abusive conduct gave rise to the order of 9 June 2004. There was one physical assault on 12 June 2004, which is not the subject of breach proceedings but awaiting trial and sentence in the crown court, thereafter no physical violence took place. Given that the sentence relating to the breaches was in respect of threats only that sentence, it was submitted, was disproportionate.[13]The second point taken was that the length of sentence overall was disproportionate, bearing in mind the maximum available to the court is two years. The third point was insufficient regard was had both to the fact that the applicant was motived by the denial of contact with his only daughter and to what effect imprisonment would have on her right to contact with him.[14]There is also a suggestion in the initial skeleton put forward on the appellant's behalf that the sentence could or should have been suspended. As to this last point, I am in no doubt at all that the conduct of the husband on the occasions of which he was found to be in contempt undoubtedly warranted an immediate custodial sentence. Equally, I am entirely, speaking for myself, unimpressed by the argument that his motivation was a denial of contact with his daughter. Violence committed by one parent to another in the presence or hearing of their children or threats of violence are wholly unacceptable conduct and, in my judgment, this is an aggravating rather than a mitigating factor.[15]The question, therefore, is whether or not the sentences were proportionate, given the two-year maximum; and secondly, given that the incidents themselves took place over a relatively short period of time, whether or not the judge was right in all the circumstances to sentence separately and consecutively for allegations 1, 2, and 4.[16]Had the respondent been represented today I, speaking for myself, can see a quite powerful argument in relation to proportionality. Given that sentences for domestic violence and harassment have historically been, in my judgment, extremely lenient, a substantial sentence of imprisonment here was clearly warranted. Whether the sentence was, as it were, 75 per cent of the maximum two years is perhaps arguable. In my judgment the strongest justification for that sentence is that this was a series of breaches by the husband who had previously breached orders whilst he had been on bail, and indeed had breached bail conditions. The cumulative effect cannot be ignored. However in my judgment perhaps the most powerful argument for a reduction in sentence is the fact that there was a gap of a week between the series of incidents and that it would have been appropriate for the judge to have treated items 1, 2 and 3 as one group of offences, and item 4 a weak later as a separate offence, with the consequence that 1, 2 and 3 could be sentenced together, and item 4 could be sentenced separately. I see nothing, in principle, incorrect in the judge's sentence of six months' imprisonment for items 1 and 2. Equally I see no point of principle in his sentence of three months for paragraph 3. However, speaking for myself, the proper course would have been for the judge to have imposed concurrent sentences in relation to items 1, 2 and 3, which took place on 5-7 August; and then a consecutive sentence in relation to paragraph 4. And since I see nothing wrong in principle in the sentence of six months in each case I would alter the judge's sentence and allow the appeal to the extent of substituting six months' imprisonment, on paragraphs 1 and 2 concurrent, with three months also concurrent, and six months on paragraph 4 consecutive, making a total of 12 months' imprisonment.[17]In those circumstance I would allow the appeal to that extent. I add simply this. The appellant is out of time in filing the notice, if only by a few days. Rightly, in my judgment, Miss Piskolti did not press the argument that we should refuse to entertain this appeal because it was out of time. This is a man who is in person and who may well have been to that extent in terms of finding documentation disadvantaged by being in person. I am however quite satisfied today that by hearing the appeal in the way that we have with the benefit of Miss Piskolti's argument, and by reducing the sentence in the way that we have, we have nonetheless been able to do justice.[18]I would therefore allow the appeal to the extent I have indicated.

MRS JUSTICE BLACK: I agree.

LORD JUSTICE THORPE: I also agree. (Application granted; no order for costs).