C (Children)

In sentencing for contempt arising from breach of a family injunction, flagrant and serious breaches may justify immediate imprisonment, even where this is the first custodial sentence. The court must consider whether imprisonment should be suspended. Sentencing should reflect the impact on protected children and carers, as well as the effect on the contemnor. Emotional or psychological disturbance may explain the conduct and mitigate sentence, but does not excuse it. Admissions, contrition and the fact that custody is imposed for the first time are relevant mitigation. The sentence must retain punitive and coercive purposes. An appellate court may intervene where the sentence is manifestly excessive.

The mother appealed against a six-month custodial sentence imposed by HHJ Rundell in the Worcester District Registry on 20 June 2011. She had admitted four breaches of an injunction made in the care proceedings, including approaching the foster home and later damaging the foster carers’ car and front door with a baseball bat. No separate penalty had been imposed for the two earlier breaches.

The appeal concerned whether immediate imprisonment was justified and whether the total sentence was manifestly excessive, having regard to the mother’s admissions, contrition, emotional and psychological condition, first custodial sentence, and the effect of the breaches on the children and foster carers.

Disposition

The appeal was allowed. The total sentence was reduced from six months to three months.

1. Seriousness and immediate custody. The June breaches were flagrant. The judge was entitled to find that the mother’s visit to the foster home was intended to harass the foster carer, rather than being prompted by concern for the children. The purpose of the injunction was to protect the foster carers and the children. The judge was therefore entitled to impose immediate imprisonment, despite this being the first occasion on which the court sentenced the mother for a breach. The question of suspension had been considered and the decision not to suspend the sentence was not wrong.
2. Mitigation. In a domestic sentencing context, the court may take account of high emotions and possible psychological disturbance as an explanation for the conduct and as mitigation, but not as an excuse. The mother’s admissions, regret, contrition and stated intention not to repeat the conduct were relevant mitigating matters. Hughes LJ also identified that this was her first custodial sentence.
3. Balancing the sentencing purposes. The sentence had to reflect both the considerable impact of the deliberate breaches on the children and carers and their effect on the mother. It also had to contain punitive and coercive elements, including an incentive to obey the injunction in future. The children’s absence of adverse comment about the possibility of imprisonment was neutral and did not amount to mitigation.
4. Appellate assessment. Having regard to the matters insufficiently addressed below, the six-month sentence was manifestly excessive. The appropriate replacement was three months for the night-time visit and property damage, and one month for the afternoon approach, to run concurrently. No separate penalty was imposed for the earlier May breaches.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1230, the appeal was allowed and a total sentence of three months’ imprisonment was substituted.
2. Worcester District Registry: On 20 June 2011, HHJ Rundell imposed consecutive sentences totalling six months for the two June breaches of the injunction, with no separate penalty for the earlier breaches.