Dubarry v Dubarry

Sentences for breach of injunctions must reflect both the seriousness and persistence of the conduct and the need to protect those whom the injunction protects. Where breaches follow closely after release from custody for earlier breaches, an immediate custodial sentence may be necessary. Rehabilitation and difficult personal circumstances remain relevant, but they do not justify suspension where that would ignore the risk and seriousness of continued offending. A sentence must nevertheless remain proportionate. Six months’ imprisonment was excessive for the breaches in question, notwithstanding the appellant’s history, and three months was substituted.

The appellant appealed from a sentence imposed by Her Honour Judge Pearce in the Edmonton County Court on 18 October 2002. He had admitted earlier breaches of injunctions made under Part 4 of the Family Law Act 1996, had served two months’ imprisonment, and committed further breaches shortly after his release. The further breaches involved threatening his mother, attending near her home contrary to the injunctions, and causing her continuing fear. The appeal was confined to sentence. The central issues were whether imprisonment should be suspended and whether six months’ imprisonment was proportionate.

1. Appeal allowed in part. The sentence of six months’ imprisonment was replaced by three months, running from 18 October 2002.
2. The breaches were blatant and occurred within days of the appellant’s release from custody for earlier breaches. The continuing pattern of harassment, threats and some violence, together with the need to protect the appellant’s mother and her family, made an immediate custodial sentence necessary. Suspending the sentence would have failed to reflect the reality and seriousness of the conduct.
3. The appellant’s drug addiction, homelessness, lack of income and potential engagement with rehabilitation were relevant mitigating circumstances. Effective treatment and practical support in the community were important, and the court hoped that probation and other authorities would arrange accommodation, benefits advice and immediate contact with a drug and alcohol worker after release.
4. Proportionality nevertheless required a substantial reduction. The latest breaches were less serious than the earlier conduct, and six months was a long sentence for breaches of this kind when compared with serious cases involving actual injury. The appropriate sentence was three months.
5. The court relied on the sentencing factors identified in Hale v Tanner [2000] 3 FCR 62. The President gave the judgment; Lord Justice Thorpe and Lord Justice Scott Baker agreed. Publicly funded costs were subject to detailed assessment, and the transcript was directed to be sent to the National Probation Service and the appellant’s solicitors.

• Court of Appeal (Civil Division): The appeal from the Edmonton County Court was allowed to the extent of substituting three months’ imprisonment for six months.
• Edmonton County Court: Her Honour Judge Pearce imposed six months’ imprisonment on 18 October 2002 for breaches of injunctions.