R v Nicholas Westguard

Where an offender repeatedly breaches restraining orders protecting the same victim, sentencing must reflect the persistence of the campaign of harassment and its cumulative harm. Repeated breaches may properly amount to persistent conduct for Category A culpability under the relevant guideline. Previous breaches, offending on licence, disregard of court orders, related stalking and harm to children are substantial aggravating features.

Where a stalking offence adds no conduct beyond that already punished as breaches of a restraining order, its sentence should be concurrent rather than consecutive. An unlimited restraining order may be justified exceptionally where time-limited orders have repeatedly failed to protect the victim.

The appellant pleaded guilty in the Magistrates’ Court and was sentenced at Maidstone Crown Court to 18 months’ imprisonment for three breaches of a restraining order and a related stalking offence. The breaches included online contact with RB and communications made from custody after recall to prison.

He had repeatedly breached earlier orders protecting RB and had persistently disregarded the relevant restraining order. He appealed on the bases that the breaches were not persistent, that the stalking sentence should have been concurrent, and that the fresh restraining order should have been time-limited.

1. Appeal dismissed save for restructuring of the sentence. The total term of 18 months’ imprisonment was neither excessive nor wrong in principle. It was, if anything, generous in light of the appellant’s persistent offending and the harm caused to RB.
2. The Recorder was right to place the breaches in Category A culpability and Category 2 harm. The appellant’s conduct was plainly persistent. The court rejected a proposed distinction between repeated and persistent conduct which would diminish the protection afforded to a vulnerable victim.
3. The aggravating features included the appellant’s previous convictions and breaches, offending while on licence, his history of disobeying court orders, the related stalking, and the impact on RB’s children. There was no mitigation. A starting point above the guideline’s upper category limit was justified; even after full credit for plea, at least 18 months was justified for the restraining-order breaches.
4. The court observed that, by reference to section 59 of the Sentencing Act 2020, it was arguable that strict application of the individual-offence guideline might be contrary to the interests of justice in an exceptionally persistent course of breaches. This observation reinforced that the sentence could not be reduced.
5. The two-month stalking sentence should not have been consecutive because it contained no offending not already covered by the restraining-order breaches. It was made concurrent, while the 18-month term was recorded as imposed for those breaches.
6. An unlimited restraining order was appropriate. Although such orders are relatively rare, earlier time-limited orders had repeatedly been ignored and the order was necessary to protect RB.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 378, dismissed the appeal against sentence save that it made the stalking sentence concurrent and recorded the 18-month total as referable to the restraining-order breaches.
• Maidstone Crown Court: On 8 March 2024, imposed 18 months’ imprisonment following guilty pleas to three breaches of a restraining order and a related stalking offence, and made a restraining order without a time limit.
• Magistrates’ Court: The appellant pleaded guilty before the case was sentenced in the Crown Court.