England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE DEDMAN)

		Royal Courts of Justice The Strand London
		Monday 3 December 2001

Monday 3 December 2001

1. LORD JUSTICE THORPE: In this appeal the parents married on 3 September 1988. There are two children: F, who was born on 22 July 1989, and O, who will be 4 in a few days' time. The family broke up in 2000. The wife and children remained at the former matrimonial home which had been purchased in joint names. Almost immediately there were proceedings in the local County Court for the protection of the wife. It is quite unnecessary to record the string of orders made for her protection, followed by a series of asserted breaches, some of which were found proved and were made the subject of orders, generally for suspended committal. However, the father's repeated disregard for court orders led to imprisonment on 5 June 2001 when His Honour Judge Rice made an immediate custodial order for a term of 42 days. It might have been thought that the experience of prison would have conveyed to the husband the absolute need to comply with orders made by the court. It is therefore depressing to find that after his release came yet another application for his imprisonment for fresh breaches of the continuing protection orders.
2. The wife's application came on for a directions hearing on 25 October. The application asserted breaches on both 8 September and 14 October. The case was adjourned for hearing on 9 November when it came before His Honour Judge Dedman. The hearing was not completed on that day and was adjourned over to the 14th. The judge found proved four breaches, that is to say the breaches on 8 September, but rejected the allegation of the further breach on 14 October.
3. For an understanding of the nature of the breaches that the judge found proved, we have this morning received the benefit of a transcript of his judgment. That shows that on 8 September there was a perfectly disgraceful episode when the mother arrived at the father's home at about 6pm to collect O at the end of her day contact visit. During the course of a sustained and bitter resistance by the father, he repeatedly brought O into the fray. He used her as a weapon of war and subjected her to harrowing questions as to whether she wanted to go with her mother or stay with him. If he had briefly done that it would have been bad enough; but it is plain that, although he had an opportunity to reflect and to cool down, he nonetheless brought the incident to its climax, punching the mother in the face and again throwing O into the tug of war some considerable time after the first episode. The breaches found proved were therefore extremely serious.
4. The judge had very little to say in sentencing. He said:

"What I am going to do is to sentence him to a period of six months' imprisonment in connection with the breach on 8 September. I am prepared to give him one last chance, which surely in the history of this case must be a last chance in the light of the chances which he has had to comply with the terms of this order, and I am going to suspend that until the end of the current order, which will expire on 6 February, subject to the wife's applying to renew that, and whilst he complies with the orders of 6 February and 14 March. If there is any communication between the husband and the wife, it will be looked at very strictly so far as this court is concerned."

5. On 27 November 2001, this court received a Notice of Appeal from the mother's solicitors, in which it was contended that the judge failed to give reasons for the suspension of the sentence; secondly, that he erred in suspending the custodial sentence, as he failed to give sufficient weight to the gravity of the proven breaches; and thirdly, that he erred in suspending the custodial sentence as he failed to give sufficient weight to the background, in particular that it was the fourth application to commit and that there had been two prior suspended sentences preceding the immediate sentence imposed by Judge Rice. In those circumstances it was said that the decision was plainly wrong.
6. That case has been presented very attractively to us this morning by Miss Walker. She concedes that this court will only interfere if the sentence in the court below was not just arguably too lenient, but only if it is shown to be off the scale of what a judge, properly directing himself to the facts, could think appropriate. She accepts that it is very much a matter of impression. She lays the facts before this court to consider whether her skeleton in support of the grounds of appeal is made good.
7. Miss Carter, who appeared for the father in the court below, has also submitted a written skeleton in which she contends that the judge's failure to reason his sentence at any length is a matter of form rather than of substance. She relies on the authority of Neil v Ryan [1998] 2 FLR 1068, as an instance of a successful appeal on the grounds of undue leniency which, she says, is plainly distinguishable on its facts.
8. There is no doubt as to the jurisdiction to increase a sentence on the grounds of excessive leniency in the court below. That is plainly established by the construction which this court put upon section 13(2) of the Administration of Justice Act 1960 in Wilson v Webster [1998] 1 FLR 1097. The question this morning is whether Miss Walker has, as a matter of impression, demonstrated a sufficient margin of error to justify intervention by this court.
9. There are a number of things to be said in relation to the judge's task. The first is that he had to resolve a conflict of evidence that extended well beyond the parties themselves. A number of other witnesses to the episode were called. But the judge reached a clear conclusion that he preferred the appellant's account. On that preference there was clearly established a deplorable and disgraceful conflict extending over a significant period. Miss Carter has sought to place reliance on the fact that the physical injuries suffered by the mother did not rise on the criminal scale above common assault, and that accordingly a sentence of six months, albeit suspended, matches the maximum penalty for that offence in the criminal code.
10. In my judgment, that is a completely unpersuasive submission. In this jurisdiction the family court looks at the episode in the round. In addition to the punches landed on the mother's face, she was subjected to threats to kill and, of even greater gravity in my opinion, was the father's repeated involvement of the child in this deplorable dispute. The family court does not look only at the physical injury. It has equal regard to emotional injury, particularly to children. In my judgment, Miss Walker was perfectly entitled to bring this case to this court on the submission that the breach established by the judge's finding was in the scale of things of considerable gravity, and one which might have been expected to attract an immediate custodial sentence, particularly given the fact that there had been a previous custodial sentence as recently as June 2001.
11. There are two contrary considerations in my mind. The first is that this is an obviously decent family which has operated perfectly successfully for very many years. Its disintegration has been passionate. The father has been unable to accept its termination, and some of the messages which he has sent to the wife in breach of orders have met with equivocal responses. The reality is that this couple, who have functioned and related successfully over many years, are now relating dysfunctionally. The involvement of the court has been extensive. Significant costs must have been borne by somebody, either the Legal Services Commission or the parties, as yet to no great avail. Sooner or later this dysfunction has to end, and whether a successful appeal on the grounds of excessive leniency would contribute to that development must be questionable.
12. Secondly, the judge's decision to suspend the Damoclean sword by a thin thread over the father's head for a period of six months arguably offers better protection to the mother than would an immediate sentence which might have been terminated by an application to purge, or, if not, which would have run for only half its originally declared term by operation of statute.
13. But the real point that transcends both those I have so far mentioned is that it is perfectly plain from the authorities that this court will only intervene if the leniency demonstrated by the trial judge was of a very high order. Applying that test, I am in no doubt that this father was lucky to escape an immediate custodial sentence on 14 November. There was undoubtedly a degree of leniency in the judge's ultimate conclusion that the father had no right to expect. But, on the other hand, it remains, in my opinion, within the discretionary range that the judge surveyed. It would be unprincipled were this court to accede to Miss Walker's submission.
14. I would dismiss this appeal, but reiterate to the father that the sort of leniency that he encountered in Southend of 14 November is unlikely to come his way again should he ever find himself in similar circumstances.
15. LORD JUSTICE LAWS: I agree with everything my Lord has said and do not wish to add anything.
ORDER: Appeal dismissed; no order for costs save a certificate.