R v David Spry

When sentencing a breach of a restraining order, the nature and context of the earlier offending which led to the order may properly inform the assessment of harm. A breach may revive the fear and anxiety caused by that earlier conduct. The number, content and menacing character of communications may justify a severe sentence even if the breach occurred over only a few days.

An appellate court will interfere with a decision not to suspend a custodial sentence only where the sentencing judge ignored a relevant matter or the decision was otherwise unreasonable.

The appellant was convicted at Maidstone Crown Court of breaching a restraining order by repeatedly changing his Instagram profile picture to threatening and abusive images directed at the complainant. He later failed to attend for sentence and admitted failing to surrender.

The Recorder imposed 60 weeks’ imprisonment for the breach and five consecutive weeks for the Bail Act offence. The appellant challenged the total sentence, contending that the uplift for aggravating features was excessive, further allowance should have been made for delay and subsequent good behaviour, and the sentence should have been suspended.

1. The application for leave to appeal the sentence for breach of the restraining order was refused, and the appeal against the total sentence was dismissed.

2. The 60-week sentence, although severe, was not excessive. The Recorder was entitled to place the offence between Categories B1 and B2 in the Sentencing Council Breach Guideline. The messages were numerous, aggressive and menacing. Their content and effect justified treating the harm as high, although the conduct over four days was not a persistent breach.

3. In assessing harm, the court could take account of the offending which had led to the restraining order. That offending included stalking, forcing entry into the complainant’s home, and similar threatening communications. A further breach was liable to revive the fear and anxiety created by that conduct.

4. The appellant’s relevant previous convictions, including offending against the same complainant and a former partner, were very significant aggravating features. The prompt breach after the order was imposed was also aggravating. The Recorder had already allowed for delay before trial. The court saw no basis for a further reduction because the appellant had committed no further offences during that period.

5. The court would interfere with a refusal to suspend only if the judge had ignored a relevant matter or reached an unreasonable decision. The Recorder had referred to the Sentencing Council Imposition Guideline and given reasons. The refusal was not unreasonable, particularly because the appellant had also breached bail conditions requiring his attendance for sentence.

• Court of Appeal (Criminal Division): Refused leave to appeal the sentence for breach of the restraining order and dismissed the appeal against the total sentence.
• Crown Court at Maidstone: Following conviction, imposed 60 weeks’ imprisonment for breach of a restraining order and five consecutive weeks for failing to surrender.