England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MILTON KEYNES COUNTY COURT
(HIS HONOUR JUDGE SEROTA QC)

		Royal Courts of Justice The Strand London Thursday 7 February 2002

Thursday 7 February 2002

1. LORD JUSTICE LAWS: Lord Justice Dyson will give the first judgment.
2. LORD JUSTICE DYSON: This is an appeal from the refusal of His Honour Judge Serota QC on 6 July 2001 at Milton Keynes County Court of an application by Mr Gurdial Singh to purge his contempt of court. This is but the latest chapter in a protracted history of proceedings arising from the marriage and divorce of the appellant and Joginder Kaur.
3. The parties were married in August 1978. They separated in 1990. The decree absolute of divorce was made in 1995. There are three children of the family.
4. Since 1990 the appellant has been subject to injunctions and on no fewer than ten occasions orders have been made committing him to prison for contempt of court as a result of violence towards, and harassment of, the respondent and her family. It is not necessary to examine all of these in detail. The sentences of imprisonment are as follows:

17.04.91 -- 7 days

24.04.91 -- three months

16.09.91 -- six months

07.04.94 -- four months

20.01.95 -- six months

15.01.98 -- twelve months

13.05.99 -- three months

17.06.99 -- 18 months consecutive to the three months

09.02.01 -- six months suspended

31.05.01 -- six months activated and 18 months consecutive, making a total of two years' imprisonment

5. It is of some significance that on 21 July 1998 the appellant applied to the court to purge the contempt for which he had been sentenced to twelve months' imprisonment on 15 January 1998. The incidents which founded the order of 15 January 1998 included visits to the former matrimonial home on two occasions when he threatened to set fire to the property. On 21 July His Honour Judge Farnworth granted the application. In a note of his judgment he said:

"Notwithstanding some reluctance, I am granting your Application. I direct your release forthwith on the basis that you wish to take up a program of rehabilitation in Luton. I will make a new Injunction Order which will start from now. The Injunction Order is on the same terms as the previous Injunction."

6. He set out the terms of the injunction, which I need not read, and he added:

"There is no time limit to this Order. This is being noted. You break this Order then you will come back before me. Do not expect less than twelve months' imprisonment. Do not expect to come back and apologise. You will come back and serve a full sentence. I will remember, whether or not I am reminded by Mrs Glanvill or your Solicitors."

7. As is apparent from a letter dated 29 April 1999 from Dr Marker, a consultant psychiatrist, the appellant did not take advantage of the opportunities that were afforded to him by Judge Farnworth. Dr Marker wrote:

"Mr Singh suffers from an alcohol dependence syndrome. In my opinion, the psychological symptoms are directly related to the alcohol abuse and will disappear if he stops drinking. Therefore, the primary problem is alcoholism and he has shown no motivation whatsoever to comply with any of the planned therapeutic interventions. He has been given numerous opportunities in the past, towards rehabilitation, but all attempts have been unsuccessful. When sober he is quite well and perfectly capable of attending court. He is able to understand the proceedings of the court, instruct his lawyers and, in my opinion, fit to plead. He suffers from no formal mental illness and has shown no motivation to engage in any meaningful treatment of his alcoholism."

8. As I have said, there were breaches of the injunction and further terms of imprisonment were imposed. On 17 June 1999 the court made a further order prohibiting the appellant from using or threatening to use violence towards the respondent, from intimidating and harassing her, and from communicating with her save through her solicitors. The appellant disobeyed this order, and the respondent made yet a further application to commit him. This was heard by Judge Serota on 9 February 2001 when the appellant appeared in person. The judge found that on two occasions he had gone to the former matrimonial home where the respondent was living with her children and that on one of these occasions he had smashed a cloakroom window. The appellant assured the judge that there would be no further problems since he was no longer living in the Bedford area. It was no doubt for that reason that the judge decided to pass a suspended sentence of six months' imprisonment.
9. But the appellant did not desist. In her statement of 18 May 2001, the respondent described one incident in the following terms:

"9. On either 18th or 20th February 2001 I was visiting my aunt's home when the Respondent came to the door. I was extremely fearful. My aunt and I sat in the back room (I do not believe that the Respondent knew in fact that I was in the home) and the Respondent spoke to my uncle. I understand that he made threats to kill me although I could not in fact hear the conversation myself."

10. She then referred to three letters that the appellant had written to her in March and which she said, understandably, caused her very considerable distress. The first is dated 12 March. It includes this passage:

"You have done very wrong with me. I can still take my house back but I do not wish to do this because of my children.

.... I have no bad feelings for you or my children. I have no reason to fight with you."

11. A letter of 25 March 2001 is in these terms:

"Joginder, I am really in love with you, but your behaviour towards me has been very bad. .... Now it is Katey's turn, who fucked you in my bed. I will never forgive him.

Vacate my house and move to a Council house. You are a bitch and a prostitute. Bayant also told me that he used to fuck you and you also had relations with him too.

Vacate my house as soon as possible otherwise I will shoot you. This is my last warning. Vacate my house as soon as possible. Go and live with Kanta. I am ordering his death warrants.

I am pleading with you to vacate my house as soon as possible.

If by chance we meet in the Gurudwara I will shoot you in your sexual organs.

I live in Bedford."

12. The last letter is dated 29 March 2001. It includes this passage:

"You have really bothered me. Your father has accused me of something which I did not do. He died dog's death. I will kill your whole family. With Vaheguru's blessing you will all die."

13. In her statement the respondent said that she found any communication whatsoever from the appellant intimidating. She said that she was extremely concerned for her safety and was frightened to leave her home unaccompanied, and that her youngest son Deepak was afraid to walk home in view of the appellant's threats.
14. That statement was made in support of a further application to commit the appellant. This was heard by Judge Serota on 31 May 2001. The appellant did not appear and was not represented on that occasion. The judge decided to pass a sentence of 18 months' imprisonment and to activate the suspended sentence, thereby passing a total sentence of two years. This was the maximum sentence that he could pass: see section 14 of the Contempt of Court Act 1981, and Villiers v Villiers [1994] 1 FLR 647.
15. The appellant then applied to purge his contempt. In his statement of 28 June 2001 he said:

"3. I will say from the outset that I am deeply sorry that I have breached the Order and I apologise to both the court and to my ex-wife for any distress that I have caused.

4. Since the breakdown of my marriage and really thereafter my life has been extremely difficult. I have become dependent on alcohol and also suffer from mental health problems. I am depressed and currently being prescribed Prozac. I am also taking sleeping tablets as I have difficulty there.

5. On 16 June 2000 I was released from prison and assigned to move to the Medway Towns for a new start. I moved into Wykeham Street, Strood and had one room there. I was not working and my rent was being paid by the Housing Benefits. There were many problems with the property as it was filled to the brim and in some rooms there were 3-4 people in one room sleeping on the floor on mattresses. It was not suitable accommodation.

6. I had been complaining about the conditions in the property and when I went to court on the 9th February of this year for breach of the injunction, when I returned all my things had been packed and thrown into the cellar. I found that some of my property was missing and they wanted me out because I complained about the situation.

7. As I had nowhere to go I stayed at the property although it was being made very uncomfortable for me as they knew I had complained to the council about the condition, which was against the rules. I eventually left that property but then had to go and live in a hotel where I was arrested. When I was served with the committal proceedings I tried to get legal advice but no solicitor could see me within the time limit. I therefore wasn't able to come to court as I didn't have representation and I was not in a mental state to deal with the matter.

8. Since being in prison I have had some help. I have seen the prison psychiatrist who has helped me and I have clearly not been able to take any alcohol.

9. I have been able to see sense for what happened and realise how wrong it was.

10. I admit writing to the Applicant and I also admit to making the threats. Those threats were made under the use of alcohol and I have no intention of carrying them through. I have to reassure that I have no intention of ever hurting my wife and will never write to her again. I know she wants nothing to do with me and I will keep out of her life.

11. I will also not communicate with the children unless of course they are old enough and wish to communicate with me.

12. Being in prison is having a very severe effect on my health. Although it is improving me for drinking and I have had help from the prison psychiatrist with regard to my depression.

13. I realise that I need to move on with my life and I would ask the court to release and to enable me to do this."

16. On behalf of the appellant Mr Campbell submits that the judge was wrong not to reduce the sentence on the application to purge. He points out that the two-year sentence imposed by the judge previously was the maximum sentence that could have been passed and that the appellant was entitled (he submits) to some discount to reflect the fact that he admitted the breaches and apologised for his contempt. He refers to Re R (A Minor) [1994] 2 FLR 185 in support of his submission.
17. In my judgment, Mr Campbell's submission is misconceived. There was no appeal from the sentence passed by Judge Serota on 31 May. Indeed Mr Campbell accepts that since the appellant did not appear on that occasion, did not admit the contempt and did not apologise, there would have been no basis for launching such an appeal. In my judgment, the judge cannot be criticised for failing to make any allowance to take account of mitigation because, as was accepted by Mr Campbell, there was no mitigation put before him to take into account. The case of Re R is not in point. It might have been in point if this had been an appeal against the sentence passed on 31 May. But this concerns an application to purge contempt. It seems to me that the fact that the appellant admitted the breaches on the occasion of this application, and the fact that he apologised, is not a reason of itself requiring a discount of the kind that would usually be expected at the original sentencing stage.
18. Since that is the only point that is advanced by Mr Campbell for seeking to impugn the exercise of the judge's discretion on this application to purge, it seems to me that this appeal must be dismissed.
19. LORD JUSTICE LAWS: I agree entirely.
ORDER: Appeal dismissed; detailed assessment of appellant's costs.