Goldsmith v Goldsmith

When sentencing for breaches of a non-molestation order, the court must hear mitigation before imposing sentence. Immediate imprisonment may be justified by serious, deliberate and repeated breaches involving threats, intimidation or encouragement of violence.

The overall term must nevertheless satisfy the principle of totality. It should reflect both the court’s serious disapproval of the contempts and the objective of securing future compliance. Even serious breaches which extend over a substantial period may fall below the highest level of gravity, requiring a sentence substantially below the statutory maximum.

The appellant was committed to prison for 12 months for repeated breaches of a non-molestation order made under Part 4 of the Family Law Act 1996. The breaches included threats to his former wife, damage to her mother’s car, delivery of a threatening note and encouragement of an assault.

HHJ McDowell initially imposed consecutive sentences totalling 15 months without first hearing mitigation. After counsel identified that procedural error, the judge reduced the aggregate sentence to 12 months but declined to suspend it.

The appellant did not challenge the findings of contempt. The issues were whether immediate imprisonment was justified and whether the aggregate sentence was excessive.

1. Appeal allowed to a limited extent. The 12-month term was excessive and was replaced by eight months’ immediate imprisonment.

2. The judge committed a serious procedural error by announcing sentence before allowing counsel to mitigate. A person facing committal must have an opportunity to present mitigation before sentence is imposed. The subsequent reduction from 15 to 12 months did not cure the excessive result.

3. Immediate imprisonment was justified. Four breaches were materially serious: a direct threat at the children’s school, the slashing of car tyres, delivery of a threatening note and encouragement of an assault. They were deliberate acts committed by a mature and experienced man over an extended period. The final breach occurred after proceedings had begun. The judge was therefore entitled to refuse suspension.

4. Sentencing for contempt serves the objectives of marking the court’s serious disapproval and promoting compliance with its order. Sentences exceeding six months had been described as rare, although more recent authority recognised that earlier sentences might have understated the seriousness of domestic violence.

5. The principle of totality required an aggregate term below 12 months. Although the breaches warranted custody, they were not at the highest level of seriousness. Sentencing is an exercise of judgment rather than a scientific calculation. A proper range was six to nine months, with eight months representing two consecutive months for each of the four serious breaches.

6. Lloyd LJ agreed. The appellant’s continuing denial, absence of apology and lack of remorse supported an immediate, unsuspended term of eight months.

1. Court of Appeal (Civil Division): The appeal in [2006] EWCA Civ 1670 was allowed only to the extent that the sentence was reduced from 12 months to eight months’ immediate imprisonment.
2. Willesden County Court: HHJ McDowell found the appellant in contempt for breaches of a non-molestation order. He initially imposed consecutive terms totalling 15 months and, after hearing mitigation, reduced the aggregate term to 12 months.