Swallow, R v

A persistent and serious breach of a non-molestation order, involving an assault and causing very serious distress, may properly be categorised as Category 1A offending. Previous breaches, convictions and offending on bail may materially aggravate sentence.

A later and distinct breach may attract a consecutive term, particularly where it includes threats intended to deter the victim from attending court. The sentencing court may nevertheless reduce the aggregate term to give effect to totality, and may impose concurrent sentences for associated conduct treated as an aggravating feature.

The applicant pleaded guilty to breaches of a non-molestation order, common assault and witness intimidation. He also admitted benefit-fraud offences committed by failing to notify changes affecting his entitlement to benefits.

At the Crown Court at Swindon, he received an overall sentence of 40 months’ imprisonment. The first breach involved entering the complainant’s home, assaulting her and causing serious distress. The later breach, committed while on bail, consisted of repeated telephone calls and threats intended to deter her from attending court.

He renewed an application for permission to appeal against sentence. He contended that the judge had misapplied the sentencing guidelines, failed to give sufficient weight to totality and mitigation, wrongly treated the offences as Category 1A, and should have ordered the principal breach sentences to run concurrently.

1. The renewed application for permission to appeal was refused. The 40-month total sentence was not excessive. The sentencing judge’s reasons were clear and persuasive, and the Court described the approach as a model for sentencing in cases of this kind.

2. The judge was entitled to classify the first breach of the non-molestation order as Category 1A offending. It was a persistent and serious breach, being the third breach of the order, and was aggravated by the associated battery. The serious and continuing distress suffered by the complainant supported the assessment of harm.

3. The later breach was a fourth breach of the order and was committed while the applicant was on bail. It was heavily aggravated by the threatening calls and the associated witness-intimidation offence. A consecutive sentence was therefore justified. The judge had, however, reduced the sentence from that otherwise merited so as to apply the principle of totality.

4. The concurrent sentences for common assault and witness intimidation were proper because those offences had been treated as significant aggravating features of the respective breaches. The concurrent terms imposed for the benefit-fraud offences also reflected totality.

5. The application had no prospect of success. Because it was futile and had consumed limited criminal-justice resources, the Court made a 28-day loss-of-time order.

• Court of Appeal (Criminal Division) — on a renewed application, refused permission to appeal against sentence and made a 28-day loss-of-time order: [2019] EWCA Crim 2105.

• Crown Court at Swindon — on 7 May 2019, imposed an overall sentence of 40 months’ imprisonment after guilty pleas to breaches of a non-molestation order, assault, witness intimidation and benefit-fraud offences.

• Magistrates’ court — on 2 April 2019, committed the applicant to the Crown Court for sentence for the benefit-fraud offences under section 3 of the Powers of Criminal Courts (Sentencing) Act 2002.