Nicholls v Nicholls [2008] EWCA Civ 121

Case No B4/2007/2626[2008] EWCA Civ 121
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MIDDLESBROUGH COUNTY COURT
(HIS HONOUR JUDGE BRIGGS)
(LOWER COURT No: DL07F00357)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 30 th January 2008
Before
LORD JUSTICE WILSONMRS JUSTICE BLACK DBE
Between
DAWN SHEILA NICHOLLSAppellantKEVIN NICHOLLSRespondent
(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)
Mrs Y Taylor (instructed by Messrs Hewitts) appeared for Appellant, “the mother”.Mr H Murray (instructed by Messrs Clark Willis) appeared for Respondent, “the father”.
Judgment
[1]On 6 November 2007 HHJ Briggs sentenced Dawn Nicholls, the appellant, to a total of 12 months’ imprisonment for a number of breaches of a non-molestation order and an order that prevented her from going within a certain distance of her former matrimonial home. Those orders were for the protection of her husband and children. HHJ Briggs also activated a suspended sentence of 28 days’ imprisonment, which he ordered was to run concurrently with the imprisonment that he imposed for the breaches with which he was dealing.[2]The appellant and her husband the respondent were married; I am not sure whether that marriage still endures. They have four children, ranging in age from two years old to 13. They separated in April 2007. The respondent and the children remained living in the former matrimonial home.[3]The appellant is an alcoholic. She caused problems for the respondent and the children after the separation, attending at the house at unsociable hours and banging on the doors. The respondent sought an injunction against her. On 14 June 2007 he obtained, without notice, an interim occupation order and a non-molestation order. The appellant was forbidden from attending within 100 metres of the former matrimonial home and from intimidating, harassing or pestering the respondent or any of the children. The appellant was served with the injunction on 15 June 2007. She immediately went round to the house and banged on the door repeatedly, shouting and swearing and intimidating the children and the respondent who were inside. She was arrested and bailed to appear at court on 21 June 2007. On that day she failed to appear and the judge sentenced her to three weeks’ immediate imprisonment. This, then, was the first breach of the injunction.[4]Following her release from prison, the appellant breached the injunction for a second time. She attended at the property on 10 August 2007. She tried to get in but was stopped by the respondent leaning against the door. The police were called. She was arrested and, next day, she admitted the breach of court and was given a 28-day custodial sentence, this time suspended for the duration of the injunction which would be until 14 June 2008.[5]Less than two weeks later, she breached the injunction again. In the space of a week there were three breaches, bringing the total number of breaches of the injunction to five. The final hearing in relation to the last three breaches (which I will call “the late August breaches”) was to have been on 4 September 2007 but the appellant was in such a state of intoxication that day in court that it had to be adjourned to 20 September when HHJ Briggs made the following findings of fact in the face of the appellant’s denial that she had breached the order.[6]Firstly, he found that on 22 August she was, as the judge put it, “well under the influence of drink”. She came across to the children in the town centre, started to talk to them and would not leave them alone. She was upset and over-emotional and (as the judge found) because of the influence of drink, behaved in a way that upset the children. The second finding that the judge made was that on 24 August the appellant came upon the children in the town again and again they were upset by their contact with her. She was again drunk. She attempted to press money on the children and eventually succeeded in doing so. She attempted also to embrace the children. The third finding that the judge made was that on 28 August the appellant came closer to the house than the 100 metres that was permitted by the injunction. The respondent said that she had come to the garden gate and, whilst the judge did not spell out his finding as to where precisely she was within the 100-metre zone, he indicated that he preferred the respondent’s evidence to that given by the appellant and her witness, both of whom denied any breach of the injunction at all. The judge found that the appellant had bought some heelies for the children (that is, a sort of shoe with rollers underneath) and that she was very anxious to deliver them to them, which is what led her to the house on that day.[7]The appellant does not appeal against the factual findings made by the judge, only against the sentence that HHJ Briggs imposed which was 12 months’ imprisonment on each of the three breaches to be served concurrently and, as I have already said, the activation of the earlier suspended sentence, again to be served concurrently.[8]In making his findings of fact about the late August breaches, the judge identified the heart of the problem as being the unfortunate alcohol addiction of the appellant. He said of her conduct generally, at paragraph 4 of his judgment:
“However, what is at the heart of this is clearly the provision that when under the influence of drink the Respondent Mrs N acts in such a way in relation to the children in this sense and over bearing is hardly the right word really, over affectionate, over demonstrative and over anxious and possibly over assertive. She acts in that way it is said in relation to the children and they, not surprisingly, find that upsetting. “5. The fact that that situation exists does not mean that she does not love the children; that is not the position at all. It is perfectly plain that on occasions, certainly in relation to matters that I am concerned with, the children have voluntarily approached her. The real trouble is that when they get close they are then within range of over effusive affection she is minded to show towards them and, although they may start willingly, it does not surprise me at all to hear suggestions that the incidents finish in an upsetting way as far as the children are concerned.”
[9]The judge recorded on that day also that the father was having to deal with a very stressful situation, looking after the children in the context of the mother’s behaviour. It put pressure on him and caused him stress and the judge accepted that it was bound to affect the children.[10]The judge did not sentence the appellant on the day he made the findings but adjourned for a few weeks. This appears to have been for a number of sound reasons. In part the judge needed information: the mother was awaiting trial at the time for robbery, and I say in parenthesis that she has just pleaded guilty with regard to that matter and awaits sentence. The judge at the time hoped that if he adjourned he would know what the outcome of that robbery charge would be.[11]She was also already the subject of a community order that was imposed by the criminal courts and was being supervised by a probation officer, and the judge wanted to have information before he sentenced the appellant about her progress from the probation officer. He was also prepared to recognise that there was a degree of improvement in the situation -- although the mother’s alcohol addiction was of such long standing that it would require a great deal of attention, the judge was satisfied that the appellant was making some attempt to address it. He also noted that nearly a month had passed by 20 September since the last breach and that, by the standards of this particular case, that was an improvement.[12]The judge fixed a hearing for sentencing on 6 November 2007 and extended the injunction so that it would last for 12 months from 20 September.[13]When the appellant returned to be sentenced on 6 November, she admitted that she had been drinking that morning due to the stress of the hearing. The information about her community sentence and how that had been going was not particularly favourable either. The appellant was attending appointments but was doing so the worse for drink and had had to be warned about disruptive behaviour. No remedial courses with regard to her alcohol had been embarked upon on what was described as “any meaningful basis”. The judge recorded these facts in his sentencing remarks, along with a number of other factors that he took into account. He identified again that alcohol was the root of the problem. He acknowledged that the breaches of the injunction from which the appellant had to be sentenced did not involve violent behaviour or behaviour which was threatening in the ordinary sense, but he considered them to be disruptive and upsetting for the children and the respondent, all of whom he found to have been caused what he described as “very considerable upset”. He took into account the need for the respondent and the children to be protected from the appellant’s behaviour. He took the view that the appellant did not seem able to “stay away”. He said of this:
“That is perhaps understandable and her appreciation of the situation is no doubt affected by the fact that she was addicted to drink.”
He took the view that further breaches were likely. He took into account that one custodial sentence had already been imposed for breach of the injunction and the three late August breaches found proved in September were in breach of the suspended committal order imposed when that first short term in prison was unsuccessful as a deterrent.[14]The judge plainly felt a reluctance to pass the sentence that he did which he described as “a deeply unhappy alternative” but he took the view that custody was inevitable. It seemed from the first skeleton argument filed on behalf of the appellant in this appeal that she made no complaint about this immediate imprisonment and complained only of the length of the term of imprisonment. However an addendum skeleton argument dated 27 January 2008 argues in the alternative that the sentence should be suspended. It has been explained to us today that the genesis of that argument was in an earlier hearing before this court when enquiries were made which have led to production of new material about how the appellant has been doing in prison, which, it was felt, may assist in an argument that the sentence should now be suspended.[15]The grounds of appeal, which I am paraphrasing and I hope I will be excused for that, are that the sentence was manifestly excessive and that firstly, it did not bear a proper relationship to the maximum sentence of two years available to the judge for a civil contempt; secondly, it did not take into account sufficiently that there was no violence or threat of violence involved and was not commensurate with the seriousness of the offence; thirdly, it did not take sufficient account of the context of the breaches; and fourthly, a shorter custodial sentence would have marked the court’s disapproval and secured compliance in future to those grounds must now be added that it would have been appropriate for the sentence to be suspended.[16]The appellant relies on the authorities of Hale v Tanner [2000] 2 FLR 879and Legge v Legge [2006] EWCA Civ 1484.[17]The Court of Appeal in Hale v Tanner expressly declined to give guidance as to the length of sentence that should be imposed for particular types of breach in relation to Family Law Act injunctions, but it did set out authoritatively the sort of considerations that should be in the mind of the sentencing judge. It cannot be said that those considerations were absent from HHJ Briggs’s consideration. He was plainly right in determining that he really had little option but to impose a custodial sentence on the appellant. He had to bear in mind that there had been repeated breaches of the order and that there had been earlier custodial terms, both actual and suspended, which had not halted the appellant’s course of conduct. Furthermore, whilst there had been no more breaches of the injunction in the space of getting on for a month between the findings of fact in relation to the August breaches and the sentencing hearing, the appellant had returned to court on the day she was to be sentenced the worse for drink and with an unhelpful report from her probation officer.[18]Subject to the new material to which I shall come in a moment, the first question for this appeal and the only really live question is whether the judge gave the Hale v Tanner considerations sufficient weight in arriving at the sentence of 12 months, which would mean, as he articulated in the course of his sentencing, that she would serve eight months. He also referred, however, to the possibility that she could during the currency of that immediate prison sentence return to court on an application to purge her contempt and attempt to persuade the court that she had dealt sufficiently with her difficulty to enable the court to allow her her freedom.[19]The appellant has, as I have already said, provided a certain amount of information to this court about her progress since she was imprisoned. The information is now relied upon in seeking to reduce both the length of the sentence and to obtain an order substituting a suspension of it. I should perhaps indicate that the information provided is not wholly consistent but one can piece together from it that the appellant has recognised her difficulties with drink and has been attempting to do something about it whilst she has been imprisoned. I can perhaps start with the letter that she has sent to this court directly, which has been brought today by her counsel, in which she indicates that she has done some “full detox” counselling, as she describes it, with a Miss Gizelda Lindsay and that she has been doing courses on alcohol awareness. She has also been doing other constructive courses whilst she has been in prison and she is expressing a willingness to address her problem now and in the future. Alongside that, we have seen from letters that have been provided, including a letter from the Lifeline project, that the appellant has indicated her willingness to do further work. She has apparently been referred for bereavement counselling, which is due to start imminently, and structured one-to-one work is intended at a time nearer to her release.[20]All of that is thoroughly to the appellant’s credit. She has the difficulty at the moment that having pleaded guilty to the robbery charge that has been hanging over her head for such a long time, she now awaits sentence with regard to that matter. A pre-sentence report has been requested and clearly there is the distinct possibility that a custodial sentence might be imposed for that matter. There is uncertainty about that until, I think the date is, 18 February, when she will in fact be sentenced.[21]I have thought very carefully about the implications of the new material that has been placed before this court with regard to the progress that the appellant has made in prison. It seems to me, however, that these are the sort of matters that really can and in a case like this maybe should be, deployed in the course of an application by the appellant to the trial judge to purge her contempt, rather than advanced in support of an argument that the trial judge was wrong to have imposed the sentence that he did.[22]No doubt the judge may feel, depending on the position as it is when he actually sees the new material and any developments that there have been by then, that the new information carries considerable weight. He will also know, as we have been told, that the children are now finding it distressing to hear from their mother in prison and seem to have developed a degree of anxiety about her wellbeing in the prison community. He will also hear that the father is anxious to remain protected against any excesses on the part of the mother, just as he was at the time when HHJ Briggs originally considered this matter. Those will all be matters that can be put before the trial judge to consider whether the appellant should be allowed to purge her contempt and therefore be released. They are not, however, matters that carry weight on the appeal now advanced against the original sentence. I turn therefore to look at that specifically.[23]The role of this court is not to substitute its own view of the appropriate sentence for that of the judge at the time. The judge had a wide discretion as to how to deal with the appellant and his decision should only be overturned if it strayed outside the range of appropriate sentences in this set of circumstances. A custodial sentence of the length that was imposed on the appellant might not readily be expected where there has been no violence or threat of violence. However, the situation facing the judge was apparently intractable at that time. There had been five separate breaches. A short term of actual custody and a suspended term had been tried and failed. The alcohol addiction that was at the root of the appellant’s problems had not been addressed and she had been drinking even on the morning of the hearing. The respondent was suffering from her behaviour and the children were being harmed. As Hale LJ said in Hale v Tanner the judge had to mark the court’s disapproval of the disobedience to its order and also attempt to secure compliance in future. In my judgment in these circumstances 12 months’ imprisonment cannot be said to be a wrong sentence. I would dismiss the appeal.[24]I agree. Mrs Taylor has said everything that could reasonably be said on behalf of the appellant to us today. I agree with my Lady that there is no principled reason for concluding that the length of the sentence passed by the judge upon the appellant was wrong. Furthermore, although Mrs Taylor has frankly explained that her revised attempt to persuade this court that, while the length of sentence might remain as the judge specified nevertheless the sentence should be suspended is a line of argument which was, in effect, suggested to her as a possibility by our predecessors who adjourned this matter in December, I cannot myself subscribe to the view that, in circumstances in which the judge was, apart from anything else, addressing breaches of a previously suspended sentence passed upon the appellant, he was in principle wrong not to favour further suspension.[25]As my Lady has indicated, these entire proceedings may prove to be academic. The appellant has pleaded guilty on 23 January to an offence of robbery, which, whatever its mark on the scale of seriousness of robberies, is always serious. Thus, without in any way seeking to second-guess the result in the Crown Court on 18 February, it may be that the appellant is then given a sentence which will require her continued incarceration beyond the date when, under HHJ Briggs’ order and allowing for one-third remission, and thus probably being a date in July 2008, she would be subject to release in respect of his sentence.[26]Assuming, however, that the sentence passed on 18 February does not render academic this entire inquiry into the appropriateness of the sentence of HHJ Briggs, then, as my Lady has foreshadowed, there are, again without any intention on my part to pre-empt the decision of the circuit judge, grounds for thinking that the appellant might be able to mount a significant and very arguable case for the purging of her contempt. My Lady has referred to some of the more recent material which has been pressed upon us by Mrs Taylor. In particular, my Lady has identified in the letter to us from the appellant, recently written, the achievements that she says she has managed to achieve in prison in the spheres of detox counselling, alcohol awareness and enhanced thinking skills; and no doubt her advocate, Mrs Taylor, would, on any application by the appellant after 18 February to the judge purge her contempt, wish that those alleged achievements be independently verified by those who have been conducting the courses to which the appellant refers. Equally the appellant would on any such application be able to advert to the revised change of position that the father now adopts. As my Lady has indicated, he now says that he considers that the children are suffering from the uncomfortable awareness of their mother’s presence in prison and would certainly not oppose a solution whereby she was released upon the basis that the remainder of her sentence was suspended. In fact I have grave doubts, subject of course to counsel’s further researches before any such application be heard, as to whether, upon an application to purge, the judge could substitute a suspended sentence for the immediate sentence which he had previously passed. So whether that route would be available on an application to purge is, in my view, at any rate doubtful. Nevertheless the father’s basic stance is, as I have said, that the children are suffering from their awareness of the mother’s current circumstances; and, with or without the facility for suspension of the remainder of the sentence, Mrs Taylor will be able to put that particular arrow in her quiver on the mother’s behalf.[27]I would certainly hope that public funding would be given by the mother for any application to purge after 18 February which is not seen to be academic as a result of the criminal sentence then to be passed upon her. Knowing this particular judge, if only by perusal of other of his judgments, he will, whatever his despatch of any application to purge, give it the most serious and careful consideration, which is precisely the level of consideration which he gave to the question of the initial sentence.[28]For those additional reasons, I join with my Lady in deciding that this appeal should be dismissed.

Order

Appeal dismissed.

Cited in 1 later judgment