R v Gary Cushen

Where persistent and deliberate breaches of court orders justify moving an offence into a higher sentencing category, that history should not also produce a further significant uplift for the same feature. Sentence must reflect the gravity of the breach actually committed, including whether it involved violence, threats, or fresh substantive offending. A serious history of non-compliance does not justify a sentence near the statutory maximum where the immediate breach was non-violent messaging and its harmful impact substantially arose from earlier conduct.

The appellant pleaded guilty to breaching a restraining order by contacting Ms Mance through Facebook Messenger shortly after his release from custody. The order prohibited direct or indirect contact except through specified channels concerning child contact.

The Recorder at Basildon Crown Court sentenced him to three years’ imprisonment. The Recorder treated the persistent history of breaches of court orders as moving the offence from Category 2B to Category 1A under the applicable Sentencing Council Guideline, then treated that history again as aggravation.

With leave of the single judge, the appellant appealed against sentence. The central issue was whether the resulting sentence was manifestly excessive, including because of double counting.

1. Appeal allowed to the extent of reducing the sentence to 20 months’ imprisonment.

2. The appellant’s persistent and deliberate disregard of court orders was serious and was the gravamen of the breach. It properly justified treating the offence as falling within Category 1A rather than Category 2B of the applicable Sentencing Council Guideline.

3. However, having used the previous history of non-compliance to elevate the offence to Category 1A, the Recorder should not have imposed a further significant uplift for that same history. The sentence after trial of four and a half years was manifestly excessive and exceeded the top of the Category 1A range.

4. The immediate breach involved no substantive offence against Ms Mance, and no violence or threat of violence. Ms Mance initiated the exchange on the second day. Although the impact on her was real, her fear of violence arose largely from the appellant’s earlier conduct and release from prison rather than from the messages themselves.

5. Allowing for the remaining aggravating features and very limited mitigation, the appropriate sentence after trial was two and a half years’ imprisonment. Full credit for the early guilty plea reduced that term to 20 months.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence to the extent of reducing the term from three years to 20 months’ imprisonment.
• Crown Court at Basildon: The Recorder sentenced the appellant to three years’ imprisonment for breach of a restraining order.