Legge v Legge [2006] EWCA Civ 1484

Case No B4/2006/1713[2006] EWCA Civ 1484
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE WALFORD)
Venue Royal Courts of JusticeDate Thursday, 19 th October 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE KEENE
Between
LEGGEAppellant- v -
Between
LEGGERespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MISS K DODDS (instructed by Messrs Watson Woodhouse) appeared for Appellant.MR H MURRAY (instructed by Messrs Close Thornton) appeared for Respondent.
J U D G M E N T

LORD JUSTICE KEENE:

This

[1]is an appeal against the decision of HHJ Walford at Middlesbrough County Court on 11 July 2006. By that decision, this appellant was committed for contempt for a period of nine months, suspended until 7 April 2008 so long as he complied with the terms of a non-molestation order dated 7 April 2006.[2]The appeal in essence challenges the length of the custodial term imposed by that order. There is a certain amount of history to this. The applicant who obtained the non-molestation order was and is the appellant’s mother. She had first obtained such an order in March 2003 against her son, who suffers from a long-standing problem with alcohol. He is now aged 24.[3]That first order was breached by the appellant on several occasions soon after it had been made. He was threatening and abusive towards his mother and had visited her house. As a result on 15 May 2003, he was given a three-month prison sentence for contempt of court but the sentence was suspended, so long as he complied with the terms of the March order until its expiry on 15 November 2003. He did so comply for the whole of that remaining period of six months. However, after the non-molestation order had expired similar problems arose as had occurred in the past. On 4 February 2005, a further and similar non-molestation order was made against him. Within five days, the appellant broke the terms of that order by going to his mother’s house. Consequently on 9 February 2005, he was sentenced to 28 days imprisonment, again suspended so long as he complied with the original order during its remaining time in force, that being until 28 February 2006.[4]I observe that that was a period of over 12 months from the passing of the suspended prison sentence. Again, that sanction proved to be effective. There was no further breach during that remaining 12-month period ending on 28 February 2006.[5]Once it had expired however, matters then reverted regrettably to their previous state, leading to a third non-molestation order being made on 7 April 2006. This is the one leading to these proceedings under this appeal.[6]Initially, the order seems to have been complied with but it was breached on 15 and 16 May 2006. The appellant tried to gain access to his mother’s house. He caused damage to a door and a garden ornament and he fought there with his brother. On 19 May, he was given a sentence of six weeks immediate custody for contempt of court. He was released from that sentence on 9 June 2006. About four weeks later, on 5 July, he went to his mother’s house again during the daytime, banged on a window and tried the door handle while searching for his brother. As a result, he subsequently admitted breach of the non-molestation order of 7 April.[7]In dealing with this contempt HHJ Walford rightly noted that a suspended committal order had proved successful in the past. Indeed, the appellant’s mother shared that view.

The judge went on to say this:

“I make no bones about it. I’m actually going to make it a longer term than the strict facts of the case themselves justify because this has been going back such a long time. And it seems to me admittedly this … since you wrote this unattractive letter you’ve appeared before the Court and been given a community sentence and you’ve served a period in prison. So you may, I hope have learnt your lesson. But if in fact you continue to feel what … what you express in this letter then, that’s a matter of real concern. And what I’m going to do for this breach being the umpteenth breach of various orders there’s going to be a 9 month sentence.”
That, as I have indicated earlier, was then suspended so long as the original non-molestation order was observed.[8]A number of points are taken on behalf of the appellant. In the written arguments submitted to this court, it is said that the judge failed to give separate consideration to the length of the sentence and to the issue of suspension of it or not. Miss Dodds, who appears for the appellant, also draws attention in her argument to the judge’s comment that he was going to make the term longer than the strict facts of the case justified. But the main thrust of the appellant’s case, as I indicated at the outset, is that the nine months’ custodial term was in the circumstances manifestly excessive.[9]In her oral submissions this morning, Miss Dodds has accepted that the appellant has been a nuisance but she contends that the custodial term need not have been as long as the nine months imposed and that shorter sentences had been shown to be very successful when suspended in the past.[10]On behalf of the respondent, Mr Murray says that the judge here had a discretion which he exercised properly. He did not go wrong and this court should not interfere. He emphasises the bad behaviour on the part of the appellant in the past and the element which has to be taken into account in dealing with contempt to show the court’s disapproval of the conduct of the contemnor, such conduct requiring some appropriate marking in terms of the sentence imposed. Even so, Mr Murray accepts that short suspended sentences have been successful in the past with this young man.[11]The principles generally applicable in cases such as this were spelt out by this court in Hale v Tanner [2000] 1 WLR 2377. It is unnecessary in this judgment to quote them extensively, but it is right to acknowledge that at page 2381(b) in the judgment of Hale LJ, the point was made that the length of any prison term should be decided without reference to whether or not it is to be suspended. The same principle operates in criminal sentences, I would add.[12]I can see that there is some force in the first point made by Miss Dodds. The judge does seem to have run together those two matters in his remarks, the length of the term and the suspension of it. The ultimate test is whether a nine-month custodial term was merited on the facts.[13]I am less impressed by the submission about the judge’s comment about making the term longer than the strict facts justified. Read in context, it seems to me the judge was doing no more than saying that if this breach was seen in isolation, the term he had in mind would not be justified, but he then went back to the lengthy history of breaches, which is a legitimate part of the context with which he had to deal.[14]The real issue is whether nine months was manifestly excessive. I note that the deterrent element required in such cases seems to have been achieved in the past through significantly shorter terms of custody. I can seen no reason why that should not remain the case. Furthermore, while one takes account of the history of breaches of orders by this appellant, the sentence must bear some reasonable relationship to the seriousness of the actual breach. In the instant case, there was no violence to or threat to any person on the occasion in question.[15]When I take those matters into account, I for my part conclude that the nine months’ term was manifestly excessive. One does of course have to take into account the point Mr Murray has been emphasising about expressing the court’s disapproval of the flouting of a court order and that does affect the length of sentence that I would substitute for the nine months.[16]Taking all those factors on board I would reduce the custodial term here to one of five months imprisonment, which is long enough to act as an adequate deterrent to this young man. It would remain suspended on the same basis as the original order and to that extent, although only to that extent, I would allow this appeal.

LORD JUSTICE THORPE: I agree.

Order

Appeal allowed.

Cited in 1 later judgment