R v Nico Phillips

In sentencing for breach of a restraining order, a sentencer should first assess culpability in the ordinary way and then decide whether, and to what extent, a mental health impairment reduces it. Serious and persistent conduct, including malicious communications to multiple agencies, may justify high culpability and the highest harm category where it causes severe distress and professional and family consequences.

A hospital disposal under Mental Health Act 1983 Part 2 is unavailable where the medical evidence does not support it. An appellate challenge will fail where the sentencing judge correctly applies that approach and the sentence is neither wrong in principle nor manifestly excessive.

The applicant pleaded guilty in the Crown Court at Isleworth to acting in breach of a restraining order, contrary to section 5(5) of the Protection from Harassment Act 1997. He was sentenced to 20 months’ imprisonment and made subject to a further ten-year restraining order.

He made a renewed application for a 12-day extension of time to seek leave to appeal against sentence, after a single judge had refused the application. He contended that his personality disorder required a health-care rather than criminal disposal, that insufficient weight had been given to it, and that the sentence was manifestly excessive.

The central issues were whether a hospital or community disposal was available and whether the Recorder’s assessment of culpability, harm and mitigation rendered the sentence arguably wrong in principle or manifestly excessive.

1. The renewed applications were refused. No purpose would be served by extending time because the proposed appeal disclosed no arguable error of principle and the sentence was not manifestly excessive.
2. The medical evidence consistently excluded psychotic illness and did not support detention or disposal under Part 2 of the Mental Health Act 1983. The applicant’s third ground was therefore factually wrong. A community-based disposal had also been ruled out in the pre-sentence material because of his risk and other circumstances.
3. The Recorder had expressly considered the applicant’s personality disorder and treated it as personal mitigation bearing on culpability. The proper sentencing approach, reflected in the Sentencing Council guidelines, was to assess culpability in the ordinary way before considering whether mental health impairment reduced it. That was the approach taken.
4. High culpability was open to the Recorder because the breach was serious and persistent. It involved many malicious and defamatory emails to multiple agencies, in defiance of a restraining order imposed only months earlier. Category 1 harm was also justified: the false allegations caused severe distress, led to police attendance at the complainant’s home, affected his employment as a social worker, and distressed his family.
5. The aggravating features justified a substantial sentence above the two-year starting point. The Recorder then reduced the notional sentence to 30 months to reflect mitigation, including mental health, and gave full credit for the guilty plea, producing a sentence of 20 months. The applicant’s complaints about recall and his placement in prison rather than hospital were administrative matters for prison authorities, not the court.

• Court of Appeal (Criminal Division): The single judge refused the application. On renewal, the court refused an extension of time to apply for leave to appeal against sentence and refused the representation order.
• Crown Court at Isleworth: On 10 February 2022, the Recorder imposed 20 months’ imprisonment for breach of a restraining order and made a further restraining order for ten years.