Briscoe, R. v

A custodial sentence for breach of a non-molestation order must be proportionate to the nature and impact of the breach. Where there is no physical violence, no identified significant physical or psychological harm, no applicable aggravating feature, and insufficient evidence of the conduct that led to the order, the custody threshold may not be passed. An appellate court may quash a manifestly excessive custodial sentence and substitute a community order that reflects both the seriousness of the breach and the offender’s continuing mental-health and supervisory needs.

The appellant pleaded guilty in the Crown Court at Woolwich to two breaches of a non-molestation order, contrary to section 42A of the Family Law Act 1996. He received concurrent sentences of six months’ imprisonment.

One breach consisted of attending his former partner’s former address and leaving when told she was absent. Minutes later, he left a threatening message on her telephone answering machine, which caused her fear. He had longstanding paranoid schizophrenia, managed by medication, and was already subject to a community order containing residence and mental-health requirements.

The appeal concerned whether immediate custody was justified and whether the sentences were manifestly excessive.

1. Appeal allowed. The concurrent sentences of six months’ imprisonment were quashed as manifestly excessive.

2. The applicable sentencing guidance required attention to the conduct that led to the non-molestation order, the nature of the breach, and its effect on the victim. The court had no evidence of the original conduct that led to the order. The visit to the address involved no direct contact with the complainant and was itself civil in manner. The telephone message was unpleasant and frightening, but did not involve physical confrontation.

3. There was no evidence of significant physical or psychological harm beyond understandable fear. None of the identified aggravating features was present. In those circumstances, it was difficult to see how the custody threshold had been crossed, still less how a sentence appropriate to significant physical violence and significant harm could be justified.

4. The court substituted concurrent community orders, each with a 24-month supervision requirement running from 8 January 2010. The orders also included residence and mental-health requirements in terms identical to those in the appellant’s existing community order. This reflected both the seriousness of the breaches and his continuing need for community support.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence and substituted concurrent community orders with supervision, residence and mental-health requirements.

• Crown Court at Woolwich: Following guilty pleas to two breaches of a non-molestation order contrary to section 42A of the Family Law Act 1996, imposed concurrent sentences of six months’ imprisonment.