Anderson v Anderson

Appellate review of a contempt sentence is restrained. A sentence imposed in the exercise of judicial discretion should stand where it falls within the generous ambit available to the sentencer, unless a demonstrable error is shown. In assessing breach of a protective order, the sentencer may consider the contemnor’s responsibility for dependent children and may suspend imprisonment while making clear that a further breach will trigger immediate custody. The complainant’s subjective fear and dissatisfaction do not establish undue leniency. An identified error concerning the duration of the suspension may be corrected by consent without disturbing the substantive sentence.

The appellant appealed from Chelmsford County Court, where Judge Thompson sentenced the respondent to three months’ imprisonment for contempt arising from breach of an order protecting the appellant from domestic violence. The sentence was suspended, having regard in part to the respondent’s responsibility for two children. The appellant argued that the sentence was unduly lenient. The central issue was whether the sentence fell outside the permissible scope of the judge’s discretion, subject to correction of an agreed error concerning the duration of the suspension.

Lord Justice Thorpe delivered the principal judgment, and Mr Justice Penry-Davey agreed.

1. Appellate restraint. The sentence was a discretionary decision. It could not convincingly be said to fall outside the generous ambit vested in the sentencer. The appellant’s subjective fears and assessment of the court’s intervention did not justify substituting the Court of Appeal’s view for that of the sentencing judge.
2. Assessment of the sentence. Judge Thompson had accurately and fully recited the history of the breaches. He was entitled to take account of the contemnor’s responsibility to care for two children. A three-month custodial sentence suspended on terms, coupled with a clear warning that any further breach would lead almost inevitably to immediate custody and further imprisonment, was not shown to be unduly lenient.
3. Correction of error. The only demonstrated error concerned the judge’s misunderstanding of the extent of his power. By agreement, the suspension period was corrected to run until 30 November 2001, and the protective order was varied to run until 1 December 2001. That correction did not warrant allowing the substantive appeal.
4. The appeal was therefore dismissed, save for the consensual variation. The prior finding that the breach was proved remained undisturbed. The costs of both parties were subject to public funding assessment.

• Court of Appeal (Civil Division): Appeal dismissed, subject to the agreed correction of the suspension period and variation of the protective order.
• Chelmsford County Court: Judge Thompson imposed three months’ imprisonment for contempt, suspended the sentence, and warned that a further breach would lead to immediate custody.