England and Wales Family Court Decisions (other Judges)

Case No: KT14F00454

IN THE FAMILY COURT

SITTING AT KINGSTON-UPON-THAMES

St James Road,

Kingston upon Thames,

Surrey KT1 2AD

Date: Thursday, 14th August 2014

Before:

DISTRICT JUDGE JOHN SMART

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Between:

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THE PARTIES appeared in person

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SENTENCE

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DISTRICT JUDGE JOHN SMART:

1.                  Mr Jabbal, you have admitted breaking the terms of an occupation order that I made on 31st July in paragraph 4, in that contrary to the order that you should not return to [an address] having left it you returned, first, on 5.15 on Monday, 4th August and, second, at 9.15 on Tuesday, 5th August and returned about 15 minutes later.  The order was made after a contested hearing and the consequences of failing to comply with the order were pointed out to you at the time. 

2.                  Notwithstanding the terms of the order you did not in fact leave the property by the time that you were ordered to leave it and you were arrested and brought before me.  On that occasion, when you were represented by Mr. Danaher, you admitted to having been served with the order and stated that you had packed your bag and were ready to leave and had gone to the toilet and that the police arrived at about 12.20.  On that occasion I ordered your immediate release.  The order that I made on that occasion, that is to say 4th August, indicated that I explained to you that if you broke the terms of the order you could be sent to prison.

3.                  You were then arrested and brought to court on 6th August and the allegations that you have today admitted to were notified to you. 

4.                  I adjourned the application in order for you to seek representation but you admitted the allegations and I take that into account.  I take into account the background to the application is the breakdown of your marriage and that what led initially to the making of a non‑molestation order, which is still in force, and then to the making of an occupation order was your alcohol misuse and then incidents of domestic violence and there have been occasions on which you have been arrested and yet you have still gone back to the property.  That is the background and I gave a reasoned judgment in explaining why it was that I was making you leave the former matrimonial home.

5.                  Court orders have to be complied with and I have to bear in mind the principle that orders have to be complied with.  I am entitled to take into account the context in which the order was made.  I have reminded myself of the case of Hale v. Tanner [2000] 3 FCR 62, a Court of Appeal decision, and in particular I bear in mind that it does not follow from the fact that there has been a breach, that imprisonment is the automatic consequence and it is a common practice to take some other course on the first occasion. 

6.                  Unfortunately, this is not the first occasion.  I have to decide what sentence is appropriate and to decide the length of any committal without reference to whether or not the sentence should be suspended.  I bear in mind in deciding what sentence there should be that you have secured accommodation and are looking for work and that when you did visit the property it was to collect your tools and, I think, your trousers and you should not have gone back, but it is notable that it has not been alleged that there was the use or threat of violence or anything of that sort so I take that into account.

7.                  I have to mark the court's disapproval of your disobedience to the court's order and to seek to secure compliance with that order in the future. It seems to me that in the light of the circumstances only a custodial sentence is justified and that the sentence will be 28 days' custody.  However, in the circumstances of this case I have the power to suspend the sentence of committal to prison on the basis that you do not commit any further breach of paragraph 4 of my order for a period of one year, so the sentence of this court is one of suspended committal.  Do you understand?

MR JABBAL:  I do.

DISTRICT JUDGE:  Alright, you may go.

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