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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dubarry v Dubarry [2002] EWCA Civ 1808 (14 November 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1808.html Cite as: [2002] EWCA Civ 1808

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EDMONTON COUNTY COURT
(HER HONOUR JUDGE PEARCE)

		Royal Courts of Justice Strand London, WC2 Thursday, 14 November 2002

Thursday 14 November 2002

1. THE PRESIDENT: This is a sad story. On 18 October 2002 Her Honour Judge Pearce, in the Edmonton County Court, found the appellant seriously in breach of two injunctions under Part 4 of the Family Law Act 1996, of 18 July and 9 September for the particular breach that had occurred shortly after his release from prison from an earlier breach. He had been in breach again and she sentenced him to six months' imprisonment.
2. The background to this story is that the appellant is 32, having been born on 8 June 1970. He is addicted to crack cocaine. He has a caring and concerned mother who has done her best to help him financially with food, and generally to support him. She lives with her daughter and her granddaughter. He has been excluded from the house because of the trouble that he has caused. He has harassed her and he has from time to time terrorised her. As I have said, she is living there not merely on her own, but with her daughter and her granddaughter, who is still a child.
3. In the summer of this year the appellant had attended on a frequent basis to the mother's home. He was aggressive; he was demanding money and he caused damage to her home. He made threatening telephone calls, including a threat to slit her throat and to burn her house down, and the mother has become frightened of him. She went to the police who put in a panic button for her; so they clearly accepted the genuineness of her allegations which are clearly true. She applied for injunctions. One of the incidents upon which she made that application was that her son had climbed into her home through on open window and stolen items from the home. After she had gone to the police on one occasion the police attended in the middle of the night. He had been banging on the door and ran away before the police came. He waited until the police left and he came back and continued to bang on the door.
4. Consequently on 18 July a deputy district judge granted injunctions under Part 4 of the Family Law Act. According to the judgment of Judge Pearce at page 4, the mother said in her statement:

"I can no longer cope with living under the constant strain of not knowing when the Respondent will further harass me or damage my home. So very violent, unpredictable, and has no respect for anyone. I am certain that without the protection of the court I will be further threatened and harassed, and I know that the Respondent is more than capable of inflicting injury upon me."

5. The injunction granted on 18 July was due to expire on 18 October. The appellant was personally served with the injunction on 31 July. On 9 September he attended her house late at night, kicked the door, threatened her and caused damage to the door. On the next day Judge Pearce made an occupation order and a further injunction order. He admitted the breaches and she sentenced him to two months' imprisonment, which he did not appeal.
6. He was in prison from 9 September to 10 October. That is when the events which are specifically relevant to this appeal occurred, but it has to be remembered that such events occur against the background of a pattern of misbehaviour, harassment and some violence.
7. The immediate breach was that, having been released on 10 October, he was arrested on the Saturday night for a breach. Unfortunately he did not get to the court until Monday morning and the period within which he should have been brought to court was too great, and therefore it was not possible for the court to deal with the breach of the order under the power of arrest. Consequently he was immediately released, the procedures not having been complied with. Nonetheless the judge warned him of the consequences if he was in breach again.
8. During that week (the week of 14 October) the mother was in touch with her son and indeed she was prepared for him to telephone her so long as he did not threaten her; and she helped him in several ways. But on 17 October at about 8.40 in the evening she was again obliged to call the police. He was arrested and came before the judge on 18 October, which is the date on which she sentenced him to six months.
9. What had happened the day before was as follows. He telephoned the mother, asking her for £10. The mother refused. He then threatened on the telephone to smash up her home with a brick. She was sufficiently alarmed by that threat that she kept an eye out of the window to see if he was coming to carry out what he had threatened, and later on that evening she saw the appellant in the road in front of her house. The order prohibits him from attending the road in front of her house. Consequently, she telephoned the police.
10. At the hearing before the judge on 18 October the appellant denied that he was in the road. He had been arrested several roads away and he alleged that this was all untrue and he had been nowhere near the house. The mother had to give evidence and the judge found that the mother's evidence was true. So not only was he behaving like this, but he was putting his mother through the discomfort of having to give evidence to prove what in the past he had actually admitted. The judge found the mother's evidence to be credible and the appellant was again in breach, within a week of being previously in breach and only ten days since he had been let out of prison. The judge found that these were blatant breaches of the orders of July and September, and as I say she sentenced him to six months.
11. Very sensibly there is no appeal on the facts. The appeal is limited to the sentence. At the mitigation, of which we do not have a note, I understand that the counsel, who was not the counsel who has admirably represented the appellant today, did suggest that there should be a suspended sentence. It has been suggested that he was anxious to have a drug rehabilitation course and this was what lay behind his efforts.
12. I find it difficult to think that the way in which he was treating his mother when he was released from prison had anything to do with his attempts to get on to a drug rehabilitation course. But we are now told that he really does want to do it. When he was released from his sentence on 9 September he was subject to, and remain subject to, a community rehabilitation order. We have a letter from the trainee probation officer who points out that he had an appointment to see a drug and alcohol worker at the office of the Probation Service on 27 October; that of course he was unable to attend because he was in custody.
13. I continue with the letter:

"If [the appellant] is released he would be offered another appointment to see the drug and alcohol worker who is available to talk through problems [the appellant] is experiencing. I am also willing give [him] what help and support I can on his release. [He] remains subject to Community Rehabilitation Order.

It is unlikely that [he] will be able to undergo any intense treatment for his drug addiction immediately as it is a long process and there are lengthy waiting lists.

[He] is particularly vulnerable because he is homeless and unfortunately we have not been successful in finding him accommodation. Although it will be limited, help for [the appellant] is best to be administered in the community."

14. I have to say he has not had very much help up to now and it can be little doubt that one of the reasons why he is continuing to harass his mother and seek money is that he is homeless, has nowhere to go, has no roots and no doubt is in that unhappy position that he is falling between the various facilities available. I assume that without an address he is unable to register for income support, and he is in the worst of all worlds, and his mother is the victim of it, as indeed is his family living with his mother.
15. This is a very sad case. But the appellant has become a pest; and a dangerous pest at that. Clearly the drug rehabilitation course is what he should be engaged in, and, if he had somewhere to live and was on income support he might not be seeking to harass his mother. One would hope he would not. But to suspend a sentence when this appellant has committed further breaches within days of coming out of prison for serving the first sentence for the first set of offences, would be to shut one's eyes to the reality of the seriousness of what he has done.
16. Having said that, and having in my judgment seen that it is inevitable that he has an immediate sentence of imprisonment, I do, however, take the view, that a sentence of six months is excessive. We are helped by a decision of this court in Hale v Tanner [2000] 3 FCR, at 62 in which Hale LJ most helpfully set out factors (as she called it) which it might be appropriate for the court to take into account.
17. In this case this is not the first offence. He did not plead guilt. He denied it. It is part the latest incident in a long series of offending harassment, including quite serious violence. Perhaps one other point I ought to say is that when he was arrested on 17 October the appellant told the police "my mother is no good" and that he would face murder charges when he killed her. That does not bode well for the future if that is his frame of mind at this time.
18. Nonetheless, these two were not the most serious breaches. The behaviour was not as serious as it had been prior to September 9, and in my judgment six months is, in modern times, a long sentence for breaches of this sort. There are serious cases of violence causing actual injury which would require a sentence of six months or less. I do take the view that it would not be tinkering with the judge's sentence of six months to say that a sentence which was considerably less would appropriately meet this sad case. In my judgment the appropriate sentence would be three months instead of six months. That would in reality mean that he would leave prison in approximately two weeks' time. It is, in my judgment, extremely important that the drug and alcohol worker should see the appellant as soon as possible after his release. It appears it cannot be done while he is in custody. I would hope that it was possible to make an arrangement for him to see the probation officer, who is the drug and alcohol worker, immediately upon his release. I would hope that the Probation Service could find him somewhere to live. They now have two weeks to look for it before he comes out; because unless they are able to find him accommodation and unless he is therefore able to seek income support as being unemployed, or seek to find a job which from time to time he has tried to do, then he is bound to be back, banging on his mother's door, kicking the door, sending threatening telephone calls and trying to get money from her. She is entitled, as is her family, to protection.
19. This man has to understand how serious is his behaviour, and the only appropriate sentence, in my judgment, is a sentence of imprisonment, and three months is the appropriate sentence; and I hope that the authorities on the ground in the community will be able to greet him on his release and do something effective for to him.
20. LORD JUSTICE THORPE: I agree.
21. LORD JUSTICE SCOTT BAKER: I also agree.
(Appeal allowed to the extent of substituting for a sentence of six months a sentence of three months to run from 18 October; detailed assessment of publicly funded costs; transcript of the judgment at public expense to be sent to the National Probation Service and to the appellant's solicitors).