England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT
(HER HONOUR JUDGE SWINDELLS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th March 2008

Lord Justice Hughes:

1. This is an appeal by Dean Killen against a sentence of nine months imposed for contempt of court in the form of repeated breaches of an anti-social behaviour injunction. The background to the making of the injunction had been episodes of aggressive and intimidating behaviour by the appellant towards one or more of the officers of the landlords of a group of houses, in one of which he had for a time lived with a sometime lady friend who was the mother of his children. The order required the appellant to keep away from the relevant street of the landlord houses where, by the time of the order, he no longer lived, though his erstwhile partner and children still did. The order also restrained him among other things from assaulting, threatening or abusing any resident of the group of houses or their families. It was an order to which a power of arrest was attached.
2. Those are the origins of the order. In one sense they are of tangential relevance because, whatever its origins, the injunction was an order of the court and it fell to be obeyed. It appears to have been obeyed between mid summer of 2007 and the turn of the year. However, in January 2008 the appellant was still frequenting this group of houses and by then he was in dispute with another resident of one of them, a lady called Rhonda Cauldwell and a boyfriend of hers called Mr Caddis.
3. In that dispute was included the appellant's erstwhile partner, who, it would appear, had also at some stage had a relationship with Mr Caddis. Between 3 and 7 January the appellant sent a large number of aggressive and unpleasant text messages either to Miss Cauldwell or to Mr Caddis. There were something of the order of 40 or a few less over a period of a few days. They included this kind of material:

"I'm gonna fuck you both. Trust"

and:

"Bring people, bring who you want, I will be sat here on my own. I won't even have a weapon … Bring who you like or what you like, you'll need it. The longer you're not speaking the more I'm going to rip his head off. I think you know who's gonna come top. I'm going to rip his head off."

4. There was a very large number, as I have said, of similar messages. On 13 January the police visited the estate with a view to arresting the appellant under the power of arrest. He was, as he had been plainly on a number of other occasions, at the sometime girlfriend's house - thus in breach of the injunction. He tried to escape through the back garden but was caught. On the judge's finding, he thereupon displayed towards the police officers aggression and threatening behaviour of a kind which was entirely in keeping with his behaviour towards Miss Cauldwell and Mr Caddis. He offered to fight the police and he offered them threats.
5. Having been arrested, he was brought the following day before the judge. As she subsequently recorded, he denied being in breach of the injunction. Accordingly the case was put back for the claimant landlords to issue notice in proper form for him to show cause why he should not be committed to prison for contempt. The judge, whilst thus adjourning the case, took the opportunity to give the appellant the clearest possible explicit warning. She told him firstly that the injunction remained in force and secondly that any further breaches by him would result in a substantial sentence.
6. His reaction to that warning appears to have been to ignore it entirely. On that very afternoon, having been released from court, he abused Miss Cauldwell again, having encountered her in the street; he told her that he was going to get her and referred to her as a "[expletive deleted] slag". He then made a witness statement. The witness statement sought to justify the text messages which he had sent. It denied that he had been in the street from which he was excluded on a particular occasion which was alleged and in relation to which in due course closed-circuit camera film demonstrated conclusively that he had been. In other words he made a false witness statement denying the breaches of the injunction which were alleged.
7. There followed further episodes of additional breaches of the order which plainly demonstrated that, if anything, the appellant's attitude to the order which he was bound to obey had hardened rather than softened. On 22 January, just about a week after the adjournment hearing, he encountered Miss Cauldwell and Mr Caddis near the school at delivery of children time. He used vulgar abuse towards Mr Caddis, but more importantly he told them both:

"You've tried to fuck me up with the police. I'm gonna get you and I'm gonna get you too, Rhonda."

8. On 24 January there was a similar incident in the street. He told Miss Cauldwell on this occasion:

"Rhonda, my ban is up in 2 weeks and then I am coming for you."

9. In due course, in front of the judge, the appellant denied these and other further allegations of breach. He denied the second of those, relating to 24 January, in the face of a recording of his voice which Miss Cauldwell had made at the time on her mobile phone and which she presented in court. Still the appellant would not have it. The appellant did, however, when the case came back for full hearing on 1 February, admit at least the earlier breaches constituted by the sending of the text messages.
10. The result was that there had to be a trial of the subsequent allegations from 14 January, the occasion of the court adjournment hearing, onwards. The judge had the opportunity to hear the evidence of Miss Cauldwell for herself and also the evidence of the defendant. She was in no doubt that Miss Cauldwell was telling the truth and that the defendant was not. The defendant's attitude to the order could also additionally be seen from the fact that he made a number of counter allegations against Miss Cauldwell in court on 1 February, counter allegations which the judge was satisfied were not true.
11. In due course the judge sentenced the appellant. She passed carefully separate sentences for each of a large number of breaches, 15 in all. The structure of her sentencing was this. For the initial series of repeated text messages prior to the adjournment hearing on 14 January, she imposed sentences of three months for each, concurrent. However, in relation to the breaches which were proved to have taken place in the days immediately following the adjournment hearing of 14 January, she imposed sentences of six months concurrent with one another but consecutive to the initial group of three month sentences. It is in that manner that the total sentence arrived at was nine months.
12. The question for us is simply whether on the facts of this case that total sentence was manifestly excessive. On the appellant's behalf Mr McNamara reminds us of three principal considerations. First, unpleasant though the appellant's conduct was, there was no actual violence. Second, he admitted at least part of his conduct, namely the earlier breaches. And third, this was the first occasion that he was falling to be dealt with for breach of the injunction order. Mr McNamara submits that a sentence of nine months viewed against a statutory maximum of two years leaves the court relatively little head room, should the sentence not achieve its object and should there be further breaches.
13. As to those considerations, the first is plainly correct. This was not a case of actual violence. It was, however, a case, not of a single incident of threats, aggression and thoroughly unpleasant and intimidating behaviour, but of such conduct oft-repeated. As to the admissions, though they came eventually they were late. They were inevitable in the face of recorded evidence of the text messages and they were not accompanied by admissions of any of the more serious second tranche breaches of the order. As to the third consideration, Mr McNamara would have us say that the court should ordinarily proceed by way of incremental sentences beginning well below the level of nine months which was imposed in this case. He reminds us of an example of that to be found in the reported case of Sandwell MBC v Preece [2007] EWCA Civ 1009, in which the contemnor had received successive sentences of ten days, eight weeks, twelve weeks and 16 weeks, step by step. Whilst that was a case of significantly less serious breaches of an order than this, I for my part do not doubt Mr McNamara's proposition that courts frequently do adopt in the exercise of their discretion the approach that he refers to, of beginning with a short sentence and, if there are further breaches, incrementally increasing them. It is not, however, the only approach which is properly open to the court, as indeed is demonstrated by one of the cases which has been put before us Leicester City Council v Lewis [2000] 33 HLR 37 at page 402, in which a sentence of six months was upheld for a single breach of being found in a place where the order of the court prevented the contemnor from being.
14. It is trite to say that there is no tariff for sentences for contempt of court. The reason is simply that every case must inevitably depend upon its own facts. In this case, as it seems to me, the judge was entitled to come to two principal conclusions. The first was that an immediate sentence of imprisonment was called for. It was called for in the face of breaches of the order which were, firstly deliberate and secondly repeated. In reaching that conclusion the judge would have had regard to the twin purposes of imprisonment for breach of an injunction. Those, as it is well known, are first to punish, and to punish principally for disobedience to the order rather than directly for the acts committed, and second to protect the beneficiaries of the order by securing future compliance. As Mr McNamara realistically accepts, in discharging the first of those duties any court has necessarily to look at the gravity of the breach, and the measure of the gravity of the breach is frequently supplied by the nature of the act constituting the breach.
15. As to the second, this was a case in which the judge had the very clear evidence of the appellant's flagrant disobedience to the warning and to the order after his first appearance in court on 14 January. That, as it seems to me, justifies immediately the second conclusion to which the judge undoubtedly came, namely that the second tranche of breaches called for a sentence both longer than the first because they were more serious, and also consecutive to the first because they were committed following the clear warning that the appellant had had. For my part I accept that the overall sentence of nine months was a stiff one and one which would not necessarily have been imposed by every judge in every court. The question for us, however, is not what sentence we should have imposed if it were possible for us to place ourselves in the position of the judge; it is whether the judge has stepped outside the bracket which was legitimately available to her. This court, as it seems to me, ought not to intervene unless that is demonstrated. That is particularly so where, as in a case like this, the judge has had the opportunity, not once but twice, to see the appellant and to judge for herself what kind of sentence was necessary to do whatever the court could to secure future compliance with the order and to punish for past disobedience.
16. For my part I am unable to say that the judge stepped outside the available bracket and I would for that reason dismiss this appeal. I observe that even now there is still no sign of any plain expression of regret from the appellant. But he needs to understand that it is never too late for a contemnor to volunteer such expression. Any person sentenced for contempt of court has the right, if he can establish genuine regret and a genuine promise as to future conduct, to make application to the court which sentenced him to purge his contempt. This appellant has had notice of that and the opportunity remains open to him if he is able at any stage to take advantage of it. For those reasons, for my part, I would dismiss this appeal.

Lord Justice Ward:

17. I agree.

Lord Justice Sedley:

18. I also agree.

Order: Appeal dismissed