Case No: B4/2007/0505
Neutral Citation Number: [2007] EWCA Civ 384
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION 
(HIS HONOUR JUDGE HAYWARD SMITH QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 12 April 2007
Before:

LORD JUSTICE LLOYD
and
LORD JUSTICE LAWS

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Between:

	PATEL	
Appellant	
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PATEL	

Respondent	
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MISS S DENT (instructed by McMillen Hamilton McCarthy) appeared on behalf of the Appellant.

MISS R ROWE (instructed by Trott and Gentry) appeared on behalf of the Respondent.

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Judgment
Lord Justice Lloyd:
1.	This is an appeal, with an application for an extension of time for the appeal, against a committal order made on 15 January of this year, imposing an immediate custodial sentence of ten months.  Mr Mohmed Iqbal Patel, who is the appellant, was already subject to a suspended committal order made on 9 October 2006, under which he was subject to a four-month sentence, which had been suspended for 12 months.  HHJ Hayward Smith, who imposed the immediate order on 15 January 2007, removed the suspension of the earlier order and imposed a further consecutive period of six months’ imprisonment.  Mr Patel is the husband of the respondent to the appeal and petitioner in the proceedings below, Khairunnissa Patel.  
2.	The parties were married in June 1993, at a time when he was 39 and she 20.  They have six children: one son, Ahmed, who is aged 10, and five daughters between the ages of 12 and 5.  They are still married, although living separately, and as I understand it, in the same road, Kings Road, Leytonstone.  We learn from the papers in the case that the wife has no other family in the United Kingdom, whereas the husband’s family all live in Kings Road, therefore near her.  
3.	There is a history of domestic violence in the marriage.  In terms of proceedings, the wife was granted non-molestation orders in October 2002 which the husband then broke.  In November 2002 he was convicted of threatening to kill the wife and the children and given a six-month sentence suspended for two years.  In May 2005 he was convicted of common assault and given an 18-month conditional discharge.  Orders were made against him in the summer of 2006, successively on 13 July, 3 August, 30 August and 7 September, all or most of which he broke.  
4.	The wife then applied for his committal for those breaches.  That application was heard by HHJ Meston QC on 29 September 2006.  We have a note of his judgment, although not a formal transcript.  He found the contempts proved, despite the husband’s denials, and he adjourned the question of sentence.  On 9 October 2006 he dealt with sentencing and imposed a number of sentences of different periods for the different breaches but made them concurrent and the longest, as I mentioned, was four months.  He suspended the committal for one year.  The same judge then heard the wife’s application concerning the residence of the children and we have a note of that judgment as well which was delivered on 13 October, following a hearing the previous day.  The judge records that the husband agreed not to enter the wife’s residence at 83 Kings Road, Leytonstone except for such contact as was agreed with social workers.  The judge decided that all five daughters should live with the wife and made no order in respect of the residence of the son Ahmed.  He also continued injunctions that had previous been in force against the husband for a further three months, pending an adjourned hearing.  
5.	I take the terms of the relevant injunctions granted on that date from the terms of the notice to show cause for their breach.  They were, first, that the husband was forbidden to use or threaten violence against the wife or to instruct, encourage or in any way suggest that any other person should do so, and secondly, that he was forbidden to intimidate, harass or pester the wife or to instruct, encourage or in any way suggest that any other person should do so.  
6.	On 24 November 2006, barely six weeks after the imposition or continuation of those orders and of the suspended committal order, the husband disobeyed that order.  The breaches alleged were described in the notice to show cause: They were six in number, all forming part of, in effect, a single occasion or incident.  It is described in the following way:
“You rubbed the applicant’s arm up and down making her feel intimidated and scared. 
You threatened to kill the applicant and to cut her throat. 
You came right up to the applicant’s face and held her throat. 
You threatened the applicant that you would kick her out of the former matrimonial home. 
When the applicant attempted to telephone the police you snatched the phone from her hand. 
You threatened the applicant that if she called the police she would see what was coming to her.”
On the basis of these allegations the wife applied for a further committal order.  The court’s order made following the hearing on 15 January records that the breaches alleged of the order were proved and immediate committal was ordered. 
7.	We have a note rather than a transcript of this judgment as well.  From this we gather that the husband came to 83 Kings Road on that occasion at the request of one of the children, because an insurance assessor was to visit the property about a leaking water pipe and the wife’s English was not good enough for her to discuss it with the assessor.  The judge heard the husband and the wife both giving oral evidence and he preferred the wife’s evidence.  She said that the husband came to talk to the assessor but stayed after the assessor had left and would not leave, despite her requests, and he then did the various things alleged that I have mentioned.  I note that, according to the wife’s evidence as recorded by the judge, the husband said, in the course of this incident, that the court could only sentence him for three months and that after three months, he would come back to cause her more problems.
8.	Having found the contempts proved, the judge proceeded to sentence.  In the note that we have, we can see an interchange between the judge and counsel for the husband, when counsel was invited to offer submissions in mitigation.  Counsel (not the same counsel as appears for him today) started his submissions by saying “my client continues to deny the breach before the court, so I must mitigate into the ether”, and that is indeed part of the relevant facts, namely that Mr Patel does not admit any of the acts and shows a total absence of any remorse.  
9.	Having heard what counsel had to say, the judge proceeded to sentence.  He took into account the husband’s denial of the breaches and the absence of any remorse as well as the previous history of the case going back to 2002 as mentioned. He referred in his sentencing comments to being aware of the guidelines of the Sentencing Guidelines Council.  He said that the case was so serious that only a custodial sentence was appropriate.  He took various factors into account by way of minor alleviation of the gravity of the contempt, including the fact that there was no weapon or implement used and that there were no actual physical injuries caused.  He referred to the fact that the husband was present on the premises by invitation in order to see the loss adjuster or assessor, but he also recognised that, as he had held, the husband had been asked by the wife to leave so that he was no longer present on the premises by invitation.  He referred to the fact that, as he knew, that the husband was looking after the son Ahmed.  He referred to -- the note says “your mental condition” but I suspect that that is a mistake for medical condition.  It was not in dispute that Mr Patel suffers from diabetes and a heart condition.  He had before him the same evidence, in that respect, as had been before HHJ Meston and he speculated that that may have been one of the reasons why HHJ Meston decided that the sentence ought to be suspended.  As I say, he activated the previous suspended order and imposed a further six months consecutive.  
10.	In the grounds of appeal settled by Miss Cannon of counsel, it is suggested that the reference to the Sentencing Guidelines Council in the note of the judge’s judgment is a mistake for the well-known judgment of the Court of Appeal, and in particular that of Hale LJ, as she then was, in the case of Hale v Tanner [2000] 1 WLR 2377.  But inasmuch as, at the time of the hearing before the judge, the Sentencing Guidelines Council had, the previous month, issued a definitive guideline about breach of a protective order, it seems to me that the judge is much more likely to have been referring to those guidelines rather than making what would have been an odd mistake in referring to the well-known Court of Appeal decision.  
11.	The argument, as presented on paper, is that the sentence of 10 months is excessive, and that the gravity of the offence did not warrant so long a sentence, especially in the context of the two-year maximum, which is the statutory maximum for a sentence of imprisonment for contempt of court.  In mitigation, it was said that the molestation was opportunistic, crude and isolated and only available to the husband on the invitation by the wife to come to her home.  It was accepted that the presence of one or more of the children on the occasion of the incident was an aggravating factor, as well as the proximity of the incident in time to the date of the imposition of the suspended committal order.  But it is said that the judge did not balance correctly the overriding purpose of securing compliance with the future with the terms of the injunction as against the punitive element in the sentencing task.  
12.	Miss Dent, appearing for Mr Patel today, adopts the skeleton argument and slightly fuller grounds of appeal settled by Miss Cannon, and has addressed us with admirable succinctness and focus in her submissions for saying that the sentence is wrong in principle and manifestly excessive.  She cites, in particular, an entirely uncontroversial proposition enunciated by Clarke LJ in Aquilina v Aquilina [2004] EWCA Civ 504, paragraph 14:
“All sentences of imprisonment should in principle be as short as possible, consistently with the circumstances of the particular case.” 
No one would quarrel with that proposition.
13.	Applying that proposition to the given case, she submits that a shorter sentence than 10 months would have been entirely appropriate and, in particular, while, as I say, adopting all the points made in the written materials, she stresses the fact that as one looks at the note of the proceedings on 15 January, very little was made in the submissions by way of mitigation of, on the one hand, the impact of a lengthy prison sentence on the son Ahmed, and on the other hand, little was made of the state of health of Mr Patel.  
14.	I should say that we have had the benefit of Miss Rowe for the respondent, who has provided a skeleton argument, which is relatively full and helpful, so much so that we have not felt it necessary to call on her to make oral submissions by way of supplement.  
15.	Looking at the matter as a whole, the case is one in which the history was manifestly serious and relevant.  The husband’s denial of the breaches and total absence of any remorse was also relevant. The relatively short period that had elapsed since the imposition of the suspended committal order before the incident of breach on 24 November was also plainly relevant; nor, indeed, does Miss Dent submit otherwise.  I would accept that it is a relevant, or could be a relevant, factor that the son Ahmed was, at the time, with the father, although one can see, from the judgment of HHJ Meston on the question of residence given on 13 October, that that judge at any rate regarded the question of Ahmed’s residence as to some extent an open question for the future.  
16.	So far as Mr Patel’s health is concerned, that was of course a matter which he was entitled to invite the judge to take into account, but it seems to me that the state of his health would have to have been a very much more cogent factor than it appears to be on the information we have been given for it to have been a serious reason why the judge should not impose an immediate custodial sentence of the length appropriate to the circumstances as they were otherwise.
17.	I regard this as a serious case and as it seems to me the judge was well entitled to regard it as a serious case himself.  It seems to me that he had very little alternative but to remove the suspension of the order that had been imposed in October and thereby to commit Mr Patel to prison at any rate for the four months imposed by HHJ Meston. 
18.	Miss Dent submits that the incident on 24 November 2006 was less serious in itself than some of the incidents for which a maximum of four months had been imposed in October.  Simply looking at the incidents by themselves, that may be a fair comment, and possibly if the incidents had happened in a different order, it might have been a fair comment leading to a different result in terms of sentence.  But two things make the November incidents considerably more serious. The first is the cumulative effect of the successive incidents and the second, above all, is the fact that the wife was entitled in November to regard herself as under the protection of the suspended committal order imposed in October, for which the husband plainly had not the slightest regard.  For those reasons, it seems to me that it cannot be said that the judge was imposing a manifestly excessive sentence when he implemented the former sentence imposed by HHJ Meston and added a further consecutive period of six months for the subsequent breaches.  
19.	In my judgment, despite Miss Dent’s able and well-focused submissions, this is an appeal which is bound to fail.  
20.	As to the question whether an extension of time should be granted, that is in itself a relatively minor point.  If we grant an extension of time, I would, in any event, dismiss the appeal.
Lord Justice Laws:  
21.	I agree that the appeal should be dismissed for all the reasons given by my Lord, Lord Justice Lloyd.
Order: Appeal dismissed.