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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Briscoe, R. v [2010] EWCA Crim 373 (17 February 2010) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2010/373.html Cite as: [2010] MHLR 92, [2010] EWCA Crim 373

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		17th February 2010

1. MR JUSTICE MACKAY: This appellant had pleaded guilty at the Crown Court at Woolwich to two counts alleging a breach of a non-molestation order contrary to section 42A of the Family Law Act 1996 and he was sentenced to six months' imprisonment on each count to run concurrently, a total sentence of six months' imprisonment with time on remand to count towards that sentence.
2. A non-molestation order had been granted in the absence of the appellant in the family court on 6th June 2008 in favour of the complainant, a Ms Lawrence, the former partner of the appellant. It contained terms which prohibited him from using or threatening violence towards her; intimidating harassing or pestering her; telephoning, texting, emailing or otherwise contacting her except through her solicitors; going to an address or to the estate where she lived.
3. In breach of the terms of that order, the appellant on 11th September first went to her home address. He knocked on the door. Her mother opened the door and told him that Ms Lawrence no longer lived there and the appellant went away. That was count 3. A matter of minutes later, he left an message on Ms Lawrence's answering machine saying he did not know what she was playing at but she was going to get what was coming to her. That frightened Ms Lawrence, quite naturally, and she informed the police and the appellant was arrested.
4. There were two other allegations of earlier breaches by the sending of text messages but they were not proceeded with and were left on the file in the usual terms.
5. The appellant had 16 previous convictions for 21 offences, predominantly of dishonesty, theft and the like, but, of significance, he had on 12th March 2003, for an offence of occasioning actual bodily harm, been made the subject of a hospital order and on 12th April 2005, for assaulting a police officer, again a hospital order was made. On 3rd July 2009, for affray, a community order with 18 months' supervision requirement was passed containing requirements as to residence and mental health and he was therefore subject to that at the time of these breaches.
6. The pre-sentence report gave important information to the sentencer that this appellant had been a paranoid schizophrenic for the last ten years or so but that his illness was controlled by medication with which, in general terms, he was compliant. He realised that he had a need for support from his family and the report indicated that, with the help of his mental health provider, he could now manage himself within the community. He had complied with the bail conditions to which he was made subject. He was described as being courteous and polite with the staff at his bail address. The reporter concluded that the problems he posed were manageable in the community and he suggested a supervision order of 24 months with an unpaid work requirement.
7. There was no psychiatric evidence before the sentencing judge, though a community psychiatric nurse attended court in support of the appellant on that occasion.
8. There is no evidence of the nature of the original allegations against the appellant which had triggered the making of the non-molestation order in the first place. The features therefore that are known about his behaviour were those contained in the pre-sentence report and, so far as the instant offences were concerned, count 3 involved no direct contact with his former partner. His behaviour was in itself entirely civil: it was simply a breach of the order for him to go where he went and to the address that he attended and he left without further comment when told that his partner was not there.
9. Count 4 was not part of what could be called a series of offences. It was his first conviction. These were his first convictions for any breach of the order, which had been in force by then for some 15 months. It did not involve a physical confrontation, albeit it was an unpleasant and indeed frightening remark for him to have made to Ms Lawrence, who said in the statement that she had been scared of him because of what had happened before. The court did not, as we stress, know what had happened before. She did not claim to have suffered any psychological harm of significance as a result of it, apart from the understandable emotion of fear.
10. There are guidelines available from the Council on this kind of sentencing problem. They say, among other things, that the original conduct which gave rise to the need for the order is of relevance and in this case, as we have said, nothing was known about that. It stresses that the nature of the breach and its impact on the victim are all important and that the actual use of violence will mean that custody is a starting point for the sentencer. Looking at the guidance on page 9, there is, as we have said, no evidence of significant physical or psychological harm to this lady. None of the listed aggravating features, eight in number, are identifiable. It is in our judgment hard to see how the custody threshold was passed at all, let alone a sentence of nine months on conviction which should be reserved for cases involving significant physical violence and significant harm.
11. He has now served the equivalent, roughly, of a three month sentence. He is still subject to the community order passed on him on 3rd July 2009. We will quash both sentences of imprisonment as manifestly excessive in the circumstances. We reflect the seriousness of the breaches and the continuing needs of this appellant for the assistance he is receiving under the existing community order in this way: we would replace the sentences on each count with concurrent community orders with a 24 month supervision requirement to run from the date of the original sentence, that is to say 8th January 2010, and there should be requirements of that community order in addition to supervision of residence and mental health requirements in identical terms to those present in the existing order. To that extent, this appeal is allowed.