Goldsmith v Goldsmith [2006] EWCA Civ 1670

Case No B4/2006/1727[2006] EWCA Civ 1670
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(HIS HONOUR JUDGE MCDOWELL)
Venue Royal Courts of JusticeDate Tuesday, 31 st October 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE WALL
LORD JUSTICE LLOYD
Between
GOLDSMITHAppellant- v -
Between
GOLDSMITHRespondent
(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)
MS C ELLIS (instructed by Messrs Rawal & Co) appeared for Appellant.MR M SCOTT (instructed by Messrs Williams & Co) appeared for Respondent.
J U D G M E N T

LORD JUSTICE WALL:

Mr

[1]Robert Terence Goldsmith appeals against a sentences totalling 12 months imprisonment imposed upon him by HHJ McDowell sitting in the Willesden County Court on 19 July 2006, in proceedings for contempt of court brought by Mr Goldsmith’s former wife, Deborah Janet Goldsmith. The order in relation to which Mr Goldsmith was found to be in breach was a Non-Molestation Order made by Judge Copley under part 4 of the Family Law Act 1996. In her very helpful skeleton argument, Miss Ellis, who appears for Mr Goldsmith, gives us a chronology both in relation to the parties and the proceedings.[2]The parties were married in June 1996. They separated finally in October 2003 and it appears that their marriage was dissolved in 2005. Shortly after the separation it appears that Mr Goldsmith pleaded guilty to a charge of threats to kill against the respondent. He spent some four weeks in custody and was then given a Probation Order for two years.[3]At that point Mrs Goldsmith obtained a Non-Molestation Order against him, with a power of arrest. That was originally on 27 November 2003, but the order was renewed in December 2004 and on 5 January 2005, when it was extended to protect the two children of the family. They are respectively aged now 14 and 10 and they are in the custody, as I understand it, of their mother. Committal proceedings were commenced on 22 September 2005, although there were delays in the matter coming to court and the schedule of breaches was not served, we are told, until 8 November 2005.[4]No point is taken by Miss Ellis on the findings made by the judge, although she makes a sound point on the judge’s procedural conduct, which I shall come to in just a moment.[5]The first group of breaches, which I have intellectually numbered one to seven, relate very largely to attendances by Mr Goldsmith at or near the children’s school. The one of the most seriousness is 23 February, when Mr Goldsmith and his son, by a previous relationship, I think, were seen standing in the vicinity of the school. In any event, the respondent, Mr Goldsmith, walked up to Mrs Goldsmith and spoke to her “in her face”, with these words:
“I am going to make you suffer. First, I am going to do your mum and John [that was her mother’s partner] then your brother. Then I am going to take the kids to finish you off.”
That was plainly an extremely unpleasant statement and at the time was a plain breach of an order restraining Mr Goldsmith from intimidating, harassing or pestering the applicant or encouraging, instructing or any way suggesting any other person should do so.[6]The next breach found by the judge was in June 2005, when he found that Mr Goldsmith had slashed Mrs Goldsmith’s mother’s car tyres. The judge was satisfied on the evidence that that had occurred, although Mr Goldsmith denied it.[7]The next breach, what I will call the third breach, took place on 22 September 2005. Mrs Goldsmith did not think at that stage that her former husband knew where she was living but her case was, and accepted by the judge, that he came to the door of her new accommodation and pushed a piece of paper underneath it, that piece of paper containing an extremely unpleasant and threatening message.[8]Finally, on 9 July 2006, there was an altercation resulting in violence between Mrs Deborah Goldsmith and the lady who is now Mr Goldsmith’s wife, Louisa Goldsmith, when it is said that the latter attacked the former, an incident at which the respondent, Mr Goldsmith, was present. It is said that he stood by encouraging his wife in the attack and standing in front of Mrs Deborah Goldsmith’s car to prevent her getting away.[9]It is I think worth pointing out that Mr Goldsmith is a man of mature years. We are told he is aged 52. He has a number of children by previous marriages or relationships and he is plainly not in the first flush of youth or inexperienced in the ways of the world. The judge in my view was thus entitled to treat what I have called the four serious breaches as being indeed serious breaches of the injunction made against him.[10]Most unfortunately, the judge committed a serious procedural error in the hearing on 19 July, because having made his findings he then proceeded immediately to sentence without giving Miss Ellis the opportunity to mitigate on Mr Goldsmith’s behalf. Ms Ellis properly and courageously pointed out to the judge that he had been in serous procedural error and that judge then allowed her to mitigate. But that factor weighs with me, because what the judge had done was to impose sentences of three months’ imprisonment in relation firstly to the first group of six attendances at the school, then a second period of three months in relation to the threat made at the school, then three months in relation to the slashing of the mothers car tyres, three months in relation to pushing the note under the door and a further three months in relation to the fight involving the second wife, all of which were made consecutive; so the total was 15 months. That was on any view manifestly excessive and, as I say, Miss Ellis courageously addressed the judge on the basis that it was excessive; that he had not allowed her to mitigate; that he had not considered the question of suspension and that his sentencing was manifestly, in those circumstances, inappropriate. She also invited the judge to hear mitigating circumstances in relation to Mr Goldsmith’s situation but does not appear to have persuaded the judge to hear her, certainly in relation to the issue of suspension.[11]The result however, was that the judge did draw back. He reduced the overall period of 15 months to a period of 12 months. In so doing, he commentated in paragraphs 24 to 26 of his judgment in these terms:
“Miss Ellis rises rightly in one sense to rebuke me for not having heard mitigating factors before announcing sentence. My reason for doing that I can only pray in aid. Also there has been denial of any wrongdoing and it is a little difficult to see what could be said on his behalf. “Miss Ellis has now rightly done her duty, reminding me of the considerations set out in a case of Hale v Tanner. I do consider that in the circumstances of the case the factors that she has raised, I may have made the sentence longer than it strictly should have been and I propose to deal with that by saying that the sentences in relation to the school attendance and the final harassment should be all concurrent, in other words three months, reducing the total sentence to one of 12 months imprisonment. “The reason why it seems to me it has to be imprisonment is that these are in no sense isolated incidents or happening in the first white heat of separation. They are matters that are taking place over a period and seem to me to have been calculated to an extent and also have been continued when it was perfectly well known that there were proceedings pending. That means that there are both factors coming into play, namely punishment for disobeying the Court Order, as well as dealing with the appropriate sentence for causing the amount of distress and upset which, in my view, has undoubtedly been caused to the applicant. The court is not confined to saying what one of the other applies. This is a plainly in my view a case where both considerations apply. “To the extent that I was in error by not having taken matters of mitigation first, I will set that correction. I do feel that Miss Ellis is justified in persuading me to reduce the overall sentence of [to] 12 months, but I do not feel the sentence can properly be suspended in view of what seems to me on the findings that I have made to be a campaign. So, accordingly, that will be the sentence of the court, 12 months, subject of course for a right to apply to purge contempt.”
[12]Miss Ellis makes a number of points in support of her submission that the sentence of 12 months remains too high in the overall context of the case. She does not put it quite in these terms, but whereas 15 months out of a maximum of 24 is plainly excessive it is, to my mind, highly arguable that 12 months out of 24 as a maximum sentence is likewise arguably excessive.[13]I will deal first with the question of suspension. In my judgment, the judge was entitled in the circumstances of this case to impose immediate sentences of imprisonment. The four breaches were all different in quality; and by the four breaches; I mean essentially the unpleasant threat made at the school, the slashing of the car tyres, the passing of the note under door and the encouragement to Louisa Goldsmith’s assault on Deborah Goldsmith. For this purpose I leave, if not on one side, at least out of the equation, the first six attendances at the school, which were very closely connected in time and which are not of the most serious kind, although they plainly should not have occurred.[14]In my judgment, the actions of the appellant, given his age, the experience of the world and his particular circumstances were sufficiently serious, clearly to warrant immediate sentences of imprisonment. He knew precisely what he was doing. He was plainly making a number of threats both direct and indirect to his former wife and, as I say, those instances to my mind are sufficiently similar to warrant an immediate term.[15]Miss Ellis, of course, refers us to the well-known case of Hale v Tanner in this court and in particular the judgment of Hale LJ, as she then was. She helpfully laid down a number of guidelines to be followed by judges in cases of this nature to assist them in what is invariably a difficult sentencing exercise. Miss Ellis is the first to recognise that all the cases, and she has put several before us, are on different facts and involve different considerations and, in some cases, the parties involved, as in Hale v Tanner, were very young and inexperienced. In other cases the matters found proven were of a different quality and nature, and in one case where six months was imposed for a very unpleasant rape, the court made it plain that this was not a criminal sentence but a sentence to be punished in relation to contempt. Miss Ellis, it seems to me, is entitled to make the point that Hale LJ herself refers to the rareness of committal sentences exceeding six months, albeit that in the more recent case of H v O, this court took the view that perhaps previous sentencing for contempt had been at the lower rather than the higher end of the scale and did not take into account all the circumstances which the modern public take into account when dealing with domestic violence.[16]In relation to the judge’s sentencing remarks in paragraph 26, Miss Ellis argues that this was plainly in breach, or took no proper account of the force of Hale LJ’s principles in Hale v Tanner, because the objectives of the court were invariably to mark disapproval and secure compliance. There is no suggestion anywhere in the judge’s thinking that he had taken account of the second factor.[17]I do not in these circumstances propose to go through the factors in Hale v Tanner, helpful as they are. What strikes me in this particular case is that there was a series of serious breaches over an extended period of time. I am unimpressed by the argument that it took Mrs Deborah Goldsmith a long time to get proceedings underway. That, to my mind, in no way diminishes the seriousness of what Mr Goldsmith was doing, and it is of course particularly noticeable that he was arrested for one of the breaches and that the final one, certainly amongst the most serious, took place after the proceedings had been commenced.[18]Having said all that, I am nonetheless left with a sense of unease at the overall length of the sentence imposed by the judge, a sentence which amounts to half the maximum in circumstances such as these when the breaches, although serious, warranting a custodial sentence, are not at the top end of the scale.[19]In my judgment looking at the principle of totality, a totality of sentence less than 12 months was in my judgment called for in this case. How one reaches it is often a matter of art rather than science when it comes to sentencing, because sentencing is not a science. But it seems to me that the bracket here, the appropriate bracket about which Mr Goldsmith could not possibly complain, would be somewhere in the region of six to nine months and, in my judgment, the appropriate sentence would have been eight months; that is two months consecutive on each of the four serious breaches. That would have clearly marked the court’s very serious disproval of the action which Mr Goldsmith was taking and in my view would have helped fulfil the second objective, that the court was looking to compliance with its order. Eight months is approximately one third of the maximum. These were breaches over a substantial period of time; they were serious; they warranted a sentence of imprisonment. But in my judgment, the totality that the judge imposed was, in all the circumstances, excessive and I am minded to think that had he heard Miss Ellis’s mitigation, as he should have done, prior to passing sentence, he would not have passed a sentence of 12 months, but would have reduced it to the figure of 8 or thereabouts which I have indicated.[20]In my judgment, therefore, this appeal should be allowed to the extent to substitute for period of 12 months actual imprisonment a period of 8 months imprisonment, and that is the sentence that I would impose.

LORD JUSTICE LLOYD: I agree. The only point I would wish to add is this. As the judge mentions at the end of paragraph 23 of his judgment, he had raised with Mr Goldsmith at the outset of the hearing the question of purging contempt, of contrition, or apology, or admission, or anything of that kind. It seems that Mr Goldsmith was resolute in not taking up that suggestion or invitation or, as it might have been thought to be, advice. There has, as I understand it, been no apology, no expression of remorse as yet. Mr Goldsmith during the hearing remained obdurate and insistent that he had not been in breach. He was found to be in breach and, in my judgment, it is appropriate that he should have been sentenced to a period of eight months imprisonment by way of committal for the contempts that he had committed. I agree with my Lord, Lord Justice Wall, that the judge was wrong not only in the way he went about it but also in the result that he reached. But I also agree that it would not be appropriate to have suspended the sentence of eight months and, accordingly, I agree that the appeal should be allowed only to the extent of reducing the period of 12 months’ to 8 months’ imprisonment. As a matter of fact, I suspect that that results in Mr Goldsmith facing some three weeks or so more in prison.

Order

Appeal allowed.

Cited in 3 later judgments