Loughran v Pandya [2005] EWCA Civ 1720

Case No B4/2005/1031[2005] EWCA Civ 1720
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EDMONTON COUNTY COURT
(SITTING AT SNARESBROOK CROWN COURT)
(HHJ ZEIDMAN QC)
Venue Royal Courts of JusticeDate Wednesday, 7th December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
SIR MARTIN NOURSE
Between
HELENA LOUGHRANRespondent-v-
Between
MEHAS PANDYAAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS J OKINE (instructed by Messrs Yva) appeared for AppellantMS A COURTNEY (instructed by Messrs Shepherd Harris & Co) appeared for Respondent
J U D G M E N TWednesday, 7th December 2005

LORD JUSTICE SCOTT BAKER:

[1]This is an appeal against a decision of Judge Zeidman QC in the Edmonton County Court sitting at Snaresbrook on 23rd December of last year when he sentenced the appellant to 2 years' imprisonment suspended for two years for contempt of court.[2]There were a number of orders of the court injuncting the appellant. On 13th February 2004 he was forbidden to use or threaten violence against the respondent to this appeal and restrained from instructing, encouraging, or in any way suggesting that any other person should do so. He was also forbidden from intimidating, harassing or pestering the respondent and was not to instruct, encourage, or in any way suggest that any other person should do so. He was precluded from entering the Tudor Park Estate in London where the respondent lived.[3]On 23rd April 2004 the original order was extended to prohibit the appellant from communicating with the respondent directly, by telephone or in any other way, except through her solicitors. That was following his arrest and discharge from custody by Judge Riddle.[4]On 29th April 2004 the order of 23rd April was effectively repeated and ordered to run until 13th August of last year. It was later extended to run until further order.[5]On 23rd December of last year Judge Zeidman considered some 20 allegations of breaches of the court's orders. He found 9 of the allegations proved and 11 of the allegations not proved. It is apparent from reading the learned judge's judgment that he went into each of the allegations with extreme care and was scrupulously fair in ensuring that he did not find proved anything against the appellant if the evidence did not fully warrant it.[6]The first three allegations relate to 8th and 10th April last year. On 8th April the respondent saw the appellant approaching her back garden from an alleyway alongside her home. That was the first of the breaches. The second breach was that the respondent saw the appellant at her front door. That was likewise on 8th April.[7]The next breach was the fourth allegation. That was on 10th April when the respondent saw the appellant going into his car from the rear of her property at about half past nine in the evening.[8]Then there was allegation number five, on the following day, 11th April. On this occasion the respondent saw the appellant at the hospital where she was visiting her mother. The appellant crouched behind the car in the car park. The judge accepted that he was visiting the hospital for his own purposes and not for the purpose of harassing the respondent, but when he saw the respondent he then began to behave badly.[9]The respondent made it very clear that she did not wish to speak to him. The appellant followed her and must have realised, said the judge, that this would cause her fear. She reminded him of the injunction. A few minutes later, despite the warnings and the requests by the respondent for him to go away, he still persisted. The respondent became hysterical with fear and called the police. She pathetically said, said the judge, "He was laughing at my distress... I was very angry that he had breached the injunction in broad daylight, he was crouching down by the cars, he followed me into the hospital and I ran." He also pulled on the blanket that was covering the baby who is the son of the two of them. The respondent feared that he was going to take the baby away.[10]The appellant's response was that he accepted that he had met the respondent coming out of the car park and that she spoke to him. He said that she said he was never going to see his son. With that he was annoyed and followed her. He thought that she was going into the hospital for something to do with the little boy and he wanted to know about it.[11]As to the first three allegations to which I have referred, his defence was that he was never in the vicinity at the time at all.[12]The next allegation found proved was number 9. This occurred on 9th June. In this instance the respondent saw the appellant get into a Volkswagen and saw him standing by the corner calling her name. The respondent said that she was in such a state that she could not find her phone and so went to the police station. She said she got into the car and came back and the appellant was walking towards her and his hands were out. He was waving his arms. She said she felt "not again" and he was walking towards her. He was within feet of her car. He was gesticulating and did the same thing again about half an hour later. He was gesturing to try to get her to talk to him which she did not want to do.[13]The appellant's account is that he saw her in the high street, she ran into the building society, and he never approached her.[14]Allegation number 10 involved an incident on 13th July 2004. The appellant approached the respondent in High Barnet on foot and then blocked the respondent's car at the traffic lights and approached her car window in an intimidating and threatening manner. The appellant accepts that he breached the injunction by speaking to the respondent in a shop, but says that it was only a technical breach.[15]The judge said that the issue was whether this went further and amounted to harassment. He said that even on the appellant's own account it seemed to him that it was clear that it would be sufficient to amount to harassment and that this was a clear and serious breach.[16]Allegation 13 occurred on 25th September. Here the respondent saw the appellant on the Tudor Estate very close to her property at about 8 o'clock in the evening. The appellant ran into the nearby bushes and the respondent then saw him, again, five minutes later in the same road, again on the estate.[17]Allegation 18 again occurred on the estate, this time on 31st October in his silver Volvo Estate.[18]Finally, allegation 20 was an admitted breach of the injunction. The appellant admitted that he went on to the estate, but said that his sole purpose was because he had been told by a friend that the respondent was there and he wanted to see the little boy. He went down the footpath and the respondent was standing exactly where he had been told by the third party that she would be. He wanted to see his son, said the judge, but he knew jolly well that he should not have been there. It was a case of his taking the law into his own hands and doing things in his own way whatever misery it caused to others.[19]The judge was, in my view, plainly right in describing the conduct of the appellant as "a pattern of behaviour over a long period of time". There were no previous occasions when the appellant had been dealt with for contempt of court and suffered a prison sentence. He had, however, previously served a 2-year prison sentence for a criminal offence in relation to running a brothel. He had served a period of 15 days on remand in custody prior to the judge imposing the suspended sentence that he imposed on this occasion.[20]Miss Okine, who appears before us for the appellant, submits that a sentence of 2 years' imprisonment is manifestly excessive for these offences, notwithstanding that there are nine of them. She makes the point that no violence was involved in any of them, although, as is apparent from the judge's remarks in passing sentence, the effect of this behaviour on the respondent was very grave indeed; she has a little boy who is under two years old and is a seriously ill child with a digestive disorder. She regularly attends Great Ormond Street, and she, the respondent, is the little boy's 24-hour carer and is plainly very upset at the harassment and pestering behaviour of the appellant in breach of the injunction.[21]In considering Miss Okine's submission we have been referred to the case of Hale v Tanner [2002] 2 FLR 879 in which this court observed that there was a dearth of guidance in sentencing for contempt of court. The court could not give guidance on the length of sentences appropriate to particular types of breach, but there were, however, a number of general considerations to be applied. We refer in particular to a number of them:
"(c) If imprisonment was appropriate the length of the committal should be decided without reference to whether or not it was to be suspended. (d) The seriousness of the contempt had to be judged not only for its intrinsic gravity but also in the light of the court's objectives both to mark its disapproval of the disobedience to the order and to secure compliance in the future. (e) The length of the committal should relate to the maximum available, ie 2 years. (f) Suspension was possible in a wider range of circumstances than in criminal cases, and was usually the first way of attempting to secure compliance with the order. (g) The court had to consider whether the context was mitigating or aggravating, in particular where there was a breach of an intimate relationship and/or children were involved."
[22]I refer in particular to paragraph 38 of Hale LJ's judgment where she said this about the length of sentence:
"It is rare, when one looks at the reported cases, to find sentences of 6 months' imprisonment in the context of much more serious breaches than took place in this case. One tends to find, even in cases of violence causing quite significant injury, a shorter sentence. As I say, I do not wish to say anything more about that, but it is an indication that there is merit in the suggestion that the sentence was manifestly excessive in this case."
[23]The other authority to which we have been referred is Robinson v Murray reported in The Times newspaper on 19th August of this year. In that case Lord Woolf, then Lord Chief Justice, said that the approach to sentencing for contempt for non-compliance with a court order should take into account the approach to sentencing in the Court of Appeal, Criminal Division. In particular, in that case, repentance and remorse was a matter of some significance. One way that that could be achieved in contempt cases was by the contemnor admitting his responsibility.[24]That was not done by this appellant. He made, it is true, a very limited admission, but his admission that he was in breach of the order was no more than that he had been in breach on one or perhaps two occasions in an entirely technical manner. He was very far from admitting the whole of the facts as found by the learned judge. That, in my submission, is a significant factor going to the appropriate length of sentence in this case.[25]I should mention that since the decision of the judge the appellant has been found to be in contempt on two further occasions, 27th and 31st August, that finding taking place on 20th September. There are two further allegations relating to breaches on 6th and 11th October and that matter is due to come back before Judge Zeidman on Monday of next week; first, to make a finding as to whether there have been the further breaches in October, and, second, to decide on the appropriate penalty for the breaches on 27th and 31st August.[26]We are told that the appellant is presently in the United States of America where his girlfriend is expecting his child in the very near future. But we are told that it is anticipated that the appellant will return for the hearing before Judge Zeidman next week. We have, however, to consider the judge's order in the light of the circumstances as they were when he made it in December of last year.[27]It is submitted, on the part of Ms Courtney for the respondent, that this is not a case that falls into the usual category. This is an unusual case where the appellant has been, in effect, stalking the respondent with a course of conduct running over a substantial period of time. She submits that it is plain from the judge's judgment that he had a very clear overview of the case and that he decided that, in the circumstances, he would give the appellant one last chance.[28]Ms Courtney submits that if this court comes to the conclusion that the judge was in error in imposing the maximum period of imprisonment of 2 years, albeit by way of suspended sentence, that it should be replaced with a shorter term but with one that is an immediate custodial sentence.[29]I do not think that it would be right in principle to impose a sentence on the appellant which was more serious than the one imposed by the judge; in other words, to replace a suspended sentence with an immediate custodial sentence.[30]I return, therefore, to the question of the appropriate length of imprisonment. I revert to the general considerations referred to by Hale LJ in Hale v Tanner, that the first question is to consider the length of the committal before giving any consideration to whether or not the term should be suspended. For my part I think that the judge was wrong to impose a period of 2 years for these offences. These were serious offences, there were nine of them, they involved a course of conduct, but it is difficult to say that they are the most serious contempts of court that one could envisage. In my view an appropriate sentence would have been one of 8 months' imprisonment. As to the period of suspension of 2 years, that seems to me to be entirely in order and I would not interfere with that.[31]There is one small adjustment which it seems to me ought to be made to the order of the judge. He made the non-molestation order to run for a fixed period until 23rd December 2006, but all the other provisions of the order were to run until further order. In my judgment it would be appropriate to adjust paragraph 3 of the order so that the non-molestation order likewise runs until further order.[32]I would make it clear that in allowing this appeal to the extent indicated, I would in no way wish to give the impression of tying the hands of Judge Zeidman when he comes to consider the fresh breaches of the order when he has to deal with the appellant next week. Those put the appellant, even on the breaches that have so far been found, in further breach of the order and therefore liable to have the suspended sentence implemented, quite apart from any penalty that is imposed for the fresh breaches. Plainly the appellant finds himself in a serious position.[33]I would, however, allow the appeal to the extent indicated.

SIR MARTIN NOURSE: I agree and cannot usefully add anything of my own.

ORDER

appeal allowed; detailed assessment of costs for both parties.