Sherwin v Sherwin

In committal proceedings for breach of an injunction, the sentence must be proportionate to the breach proved or admitted before the court. A judge must distinguish that breach from serious but unadjudicated allegations arising from the same incident. The consequences of those allegations must not inflate the sentence. Persistent and flagrant disobedience remains relevant because the protected person is entitled to the injunction’s protection and the court must uphold its authority. A previous warning, including one referring to the maximum term, cannot fetter the sentencing discretion. Where related criminal allegations remain outstanding, the court should consider whether the whole incident ought to be dealt with together or left to the criminal process.

The appellant had repeatedly breached non-molestation and occupation orders made for the respondent’s protection. After earlier imprisonment, he was warned that a further breach could attract the maximum sentence. Following a later incident, he admitted attending the respondent’s home contrary to the injunction but denied assaulting her. The county court sentenced him to two years’ imprisonment for the admitted breach and did not determine the disputed assault allegations. The appellant later pleaded guilty to two assault offences relating, so far as known, to the same incident. He appealed, arguing that the sentence was disproportionate and that the judge had treated the earlier warning as binding. The central issue was whether the sentence could properly reflect matters beyond the breach admitted before the court.

The President of the Family Division delivered the leading judgment. Brooke LJ and Latham LJ agreed. The appeal was unanimously allowed.

1. Relevant considerations. In contempt proceedings for breach of an injunction, the court must consider both the protection owed to the recipient of the injunction and the need to uphold the authority of the court. Persistent and flagrant disobedience over a substantial period is relevant to sentence.
2. Limits of the sentencing exercise. The sentence must reflect the breach for which the appellant was being sentenced. The admitted breach was attendance at the respondent’s home. The disputed assaults had not been adjudicated in the committal proceedings. The seriousness of those assaults and their consequences had nevertheless coloured the sentencing decision. A two-year sentence was disproportionate to the admitted breach, even when assessed against the history of persistent disobedience.
3. Sentencing discretion. The earlier warning was appropriate, but the judge was wrong to treat the maximum sentence as inevitable. A warning cannot fetter the discretion to impose the sentence justified by the facts before the court.
4. Related criminal allegations. The court observed that, where serious related allegations remain outstanding, the judge may need either to deal with the whole incident by trial or leave the criminal allegations to the criminal justice system. The judgments called for more coherent handling of domestic violence cases across the family and criminal courts.
5. Application and order. Applying the approach illustrated by Barnet London Borough Council v Hurst [2002] EWCA Civ 1009, the appropriate sentence was nine months’ imprisonment. The two-year sentence was set aside and replaced by nine months. The injunction was continued for 12 months from the date of judgment, with a power of arrest. The transcript was ordered to be provided at public expense. The court also stressed the need for expedition in appeals affecting liberty.

• Court of Appeal (Civil Division) — In [2003] EWCA Civ 1726, the appeal was allowed. The two-year sentence was set aside and a sentence of nine months’ imprisonment substituted.
• Southend County Court — On 24 February 2003, His Honour Judge Yelton sentenced the appellant to two years’ imprisonment for the admitted breach of the injunction.