Head v Orrow

Sentences for breach of a non-molestation order under section 42 of the Family Law Act 1996 should reflect contemporary recognition of the seriousness of domestic violence and harassment. So far as possible, they should not be manifestly discrepant from sentences for comparable criminal offences.

The court must retain proportionate regard to the two-year maximum for contempt. It must also prevent duplicated punishment where the same conduct is addressed in different proceedings. A wish to obtain contact with a child does not mitigate violence or intimidation against the child's carer and may aggravate it. A serious violent breach, followed by further disobedience and accompanied by lies, lack of remorse and little mitigation, can require substantial immediate custody even for a first offence.

The appellant was committed to prison for 12 months after three breaches of a non-molestation order made under section 42 of the Family Law Act 1996. The principal breach involved a public assault and threats against the maternal grandmother caring for his child. Two later incidents amounted to continued disobedience and intimidation.

The Family Division judge imposed 12 months' immediate imprisonment for the principal breach and a concurrent term of six months for another breach. The appellant accepted that immediate custody was appropriate but appealed on the ground that the total term was manifestly excessive. The central issue was the proper length of a contempt sentence for violent breaches of a protective injunction, having regard to contemporary sentencing standards, the statutory maximum and comparable criminal offences.

1. Appeal allowed. The total sentence was reduced from 12 months to nine months' immediate imprisonment. The concurrent six-month sentence was left unchanged because reducing it would confer no practical advantage.

2. Sentencing levels in older cases did not fully reflect contemporary requirements and opinion. Parliament and society regarded domestic violence and violence associated with harassment or molestation as requiring more severe deterrent punishment than formerly. Sentences for breach of an injunction under section 42 of the Family Law Act 1996 should reflect that development.

3. The qualifications identified in Hale v Tanner and Lomas v Parle remained important. The sentence must bear a proportionate relationship to the statutory maximum under section 14 of the Contempt of Court Act 1981. Where criminal or civil proceedings concern the same conduct, the courts must take great care to avoid duplicated punishment. Subject to those constraints, contempt sentences should not be manifestly discrepant from sentences for comparable harassment offences or, in cases of actual or threatened violence, comparable Crown Court offences.

4. The appellant's wish to have contact with his child provided no mitigation. If anything, it aggravated the conduct. A separated parent has a particular responsibility to behave properly in disputes concerning contact, especially towards the person caring for the child.

5. Substantial immediate custody was required. The principal breach involved public violence against a 59-year-old woman only six weeks after the protective order. The later breaches demonstrated continued contempt and a need for protection. The appellant contested the proceedings with lies, made no admission, showed no remorse and had little or no mitigation. No concurrent proceedings created a risk of double punishment.

6. A 12-month term was nevertheless excessive for this first offence. A comparable Crown Court sentence of that length could not be fully sustained, and comparison with Lomas v Parle indicated a somewhat shorter term. Nine months appropriately reflected both the violence and the need to mark disobedience of the court's order.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 1691, allowed the appeal and reduced the total sentence from 12 months to nine months' immediate imprisonment.
2. High Court of Justice, Family Division: HH Judge Sleeman found three breaches of a non-molestation order proved and imposed a total sentence of 12 months' immediate imprisonment.