Nicholls v Nicholls

An appellate court should not substitute its own view of the appropriate sentence for that of the judge who imposed it. Intervention is justified only where the sentence falls outside the appropriate range. Repeated breaches of a protective injunction may justify substantial immediate custody despite the absence of violence or ordinary threats, particularly where earlier custody failed, the underlying addiction remains unaddressed, protected persons have suffered serious disruption or harm, and further breaches appear likely. Evidence of rehabilitation after sentence is ordinarily for an application to the trial judge to purge contempt, rather than an appeal against the original sentence. A further suspended sentence is not required in principle where the contempt includes breaches of an earlier suspended sentence.

Following the parties’ separation, the appellant repeatedly breached an interim occupation and non-molestation order and an exclusion provision protecting her former husband and their children. An initial breach resulted in three weeks’ immediate imprisonment. A second breach resulted in a 28-day suspended sentence. Three later breaches were found proved, and on 6 November 2007 the county court imposed 12 months’ imprisonment, with the earlier suspended sentence activated concurrently.

The appellant challenged sentence only. She argued that the term was excessive and should be shortened or suspended. She also relied on evidence of progress in prison. The central issues were whether the sentence fell outside the permissible range and whether the later material justified appellate intervention.

Disposition

The appeal was dismissed. The sentence of 12 months’ imprisonment for the three breaches, with activation of the earlier 28-day suspended sentence concurrently, was not wrong in principle or outside the range of appropriate sentences.

Reasoning

1. Appellate restraint. The appellate court’s role was not to substitute its own view of the appropriate sentence. The sentencing judge had a wide discretion, and the sentence could be overturned only if it fell outside the appropriate range in the circumstances.
2. Relevant sentencing considerations. The court applied the considerations identified in Hale v Tanner [2000] 2 FLR 879. The judge had to mark disapproval of disobedience to the order and seek future compliance. The absence of violence or ordinary threats did not prevent custody. Here there had been five breaches, earlier actual and suspended custody had failed to stop the conduct, the appellant’s alcohol addiction remained substantially untreated, further breaches appeared likely, and the respondent and children had suffered considerable upset.
3. Later developments. Evidence of the appellant’s constructive work and progress in prison was relevant to a possible application to the trial judge to purge contempt. It did not show that the original sentence had been wrong and therefore did not justify reducing or suspending it on appeal.
4. Further suspension. Lord Justice Wilson agreed that there was no principled reason to conclude that the judge was wrong not to suspend the sentence, particularly when he was dealing with breaches of a previously suspended sentence. He expressed additional, non-dispositive doubts about whether a suspended sentence could later be substituted on an application to purge contempt.

• Court of Appeal (Civil Division): On 30 January 2008, dismissed the appeal against sentence: [2008] EWCA Civ 121.
• Middlesbrough County Court: On 6 November 2007, HHJ Briggs imposed 12 months’ imprisonment for three breaches, to run concurrently, and activated an earlier 28-day suspended sentence, also concurrently.