W v P

An appellate court should increase a sentence for undue leniency only where the sentence falls outside the proper discretionary range and the leniency is of a very high order. In family proceedings, the gravity of a breach is assessed in the round. The court considers physical violence, threats, emotional injury and the effect on children. A suspended custodial sentence may provide continuing protection and remain within the trial judge’s discretion even where an immediate custodial sentence would also have been justified.

The appeal arose from Southend County Court proceedings concerning repeated breaches of protection orders. The judge found four breaches proved, including a serious incident involving physical violence, threats and the repeated involvement of a child in the dispute. He imposed a six-month custodial sentence but suspended it.

The wife appealed, arguing that the judge had failed to give sufficient reasons and had given inadequate weight to the gravity of the breaches and the history of earlier enforcement proceedings. The central issue was whether the sentence was so lenient that the Court of Appeal was entitled to intervene.

1. Appeal dismissed. The Court of Appeal had jurisdiction to increase a sentence for excessive leniency under section 13(2) of the Administration of Justice Act 1960, as established in Wilson v Webster [1998] 1 FLR 1097.
2. The applicable threshold was stringent. Intervention was justified only where the leniency was of a very high order, or the sentence was outside the range open to a judge properly directing himself on the facts.
3. The family court was required to assess the breach in the round. The seriousness was not measured solely by the level of physical injury or by comparison with the criminal offence of common assault. Threats, emotional injury and the effect on children were matters of equal or greater significance.
4. The breaches were sufficiently grave that an immediate custodial sentence could reasonably have been imposed, particularly given the previous custodial sentence. Nevertheless, the suspended sentence remained within the discretionary range. Its continuing operation could provide protection which an immediate sentence might not provide.
5. Although the father had been unusually fortunate to avoid immediate custody, it would have been unprincipled to interfere. The appeal was dismissed, with no order for costs save a certificate.

• Court of Appeal (Civil Division): Appeal from Southend County Court dismissed. The suspended six-month custodial sentence remained within the trial judge’s discretion.