Smith, R v

When sentencing for breach of a protective order, the court should assess the risk of harm created by the breach and apply the relevant aggravating and mitigating factors. Definitive sentencing guidelines are not a straitjacket, but a departure from them should be justified. A sentence exceeding the guideline indication for a breach involving significant violence and harm requires particular justification.

The appellant pleaded guilty at Manchester Crown Court to breaching a restraining order which prohibited contact with his former partner and her daughter. He attended the former partner’s home while their son was present, sought entry and climbed into the back garden. He had previous convictions for serious violence, including offences against former partners.

On 13 May 2008, Judge Ensor imposed 21 months’ imprisonment. The appellant appealed his sentence with permission. The central issue was whether the judge’s starting point and resulting sentence were excessive when measured against the definitive guideline for breach of a protective order.

1. Appeal allowed. The sentence of 21 months’ imprisonment was excessive and was reduced to 12 months.
2. The court disregarded the unserved part of the complainant’s witness statement alleging abusive words to the child. The appellant had disputed that allegation when entering his plea, and no Newton hearing had been held.
3. The court applied the Sentencing Guidelines Council definitive guideline for breach of a protective order. The relevant considerations included the risk of harm, the complainant’s vulnerability, the impact on children, the appellant’s history of violence and his period of compliance with the order.
4. There were serious aggravating features. This was a further offence concerning the same victim; there was a history of entry into her garden and damage; children were affected; and the appellant had a serious record of violent offending. Credit for the guilty plea was limited because it was entered on the trial date.
5. Nevertheless, the judge had adopted too high a starting point. The guideline was not a straitjacket, but no reasons had been given for departing from its indication. A starting point of 15 months was appropriate. Allowing three months’ credit for the late plea produced a sentence of 12 months’ imprisonment.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted 12 months’ imprisonment.
• Crown Court at Manchester: On 13 May 2008, Judge Ensor sentenced the appellant to 21 months’ imprisonment following a guilty plea to breach of a restraining order.