Aquilina v Acquilina

LORD JUSTICE WARD: This is an appeal against the order of His Honour Judge Masterman, made in the Cardiff County Court on 6th February 2004, when he sentenced the appellant to a term of six months' imprisonment for the breach of an injunction which had been renewed on 30th September 2003, restraining this husband from being within 200 metres of the address where his wife and children were living.

The script almost writes itself, so depressing and so common is the tale. We are dealing here with a youngish couple, who married in 1999, having had, it seems, an association going back over years previously. They have three young children. The eldest is soon to be 11, the youngest is 3. They separated in December 2002, and there are divorce proceedings on their way. In the course of those proceedings the wife, as I shall call her, was forced -- and I have no doubt for good solid reason -- to apply for a non-molestation injunction and for an occupation order in respect of their matrimonial home and orders were made accordingly some time in June.

Sadly, within a very short space of time there were proceedings for committal, alleging breaches of that injunction. That resulted in the local judge (not, I think, on that occasion Judge Masterman) imposing an order of imprisonment for 56 days in respect of two breaches which had occurred in August when this errant, foolish husband, notwithstanding the injunction, returned to the matrimonial home. I have no doubt whatever that part of the underlying problem relates to his contact, or lack of it, to his children. That order of committal was, however, wisely suspended by the judge on condition that he complied with the order.

But this silly man, inflamed with his passions and aroused by the difficulties he faced in seeing his children, was in breach of the suspended order five days after it was imposed and, as a result, on 30th September, he was duly sentenced to prison for 56 days, no further penalty being imposed for the second breach.

He was released on 27th October. What happened? Well, he still had not learned the error of his ways, and, on 11th November, there he was making a thorough pest and nuisance of himself by driving past this lady's home at 10 o'clock at night. Whether it was wise of her and correct of her to return immediately to the court for the third committal, that is what she did, and that is what came before Judge Masterman. The husband denied that he was in breach. The judge simply did not believe him, thought that he was a man who had "shown himself to have no regard at all for the truth when he is on oath in court". That breach was therefore found proved. There was precious little mitigation that could be advanced, in that there was no open acknowledgment of the breach, there was no apology for it. All that could be said, and was said by counsel who appeared then on his behalf, Miss Foulser McFarlane, was that this was a comparatively minor matter and that there had been no history of repetition, which, given the history of this case, is a point which, on the facts of the case, has some substance.

The judge's view of it was this:

Miss Foulser McFarlane appears today and repeats the two, and only two, points she can properly urge in an appeal against the severity of that sentence, namely that driving past the matrimonial home at 10 o'clock at night is not the most heinous of offences. True that is. Quite how grave it is in the circumstances of this case we are not really able to assess because we know very little about the background. But the point is forcefully made that, in contrast with many of the cases which do come regularly before the courts and all too frequently before the Court of Appeal, the breach of the injunction often involves violence, and sometimes extreme violence; and so we are directed to the authority of this court in Hale v Tanner [2000] 2 FLR 879, when Hale LJ (as she then was) endeavoured to set out some guidance, in an area where it is difficult to give clear guidance on the court's proper approach. I duly take account of what she said.

Miss Foulser McFarlane repeats the submission that, surprisingly given his previous conduct, he had not done anything suggestive of any breach in the three months between the date of his offending (if I may call it that) and his appearing before the judge, and so she submits he had in fact learned his lessons.

Again unfortunately there is little she is able positively to advance as to his frame of mind, for unfortunately the solicitors acting for him, though they have taken instructions, have not taken instructions on what is a cardinal point in the case, namely whether he is prepared at last to say, "I am very, very sorry, and I promise I won't do it again, and I will be a good boy from henceforth onwards". There is, as I pointed out, a power to purge for contempt, and sometimes that might be a more appropriate and meaningful course to adopt than coming to the Court of Appeal.

I am very conscious that this court should not tinker with a sentence of imprisonment and that a judge dealing with the matter has a wide discretion with which we should not readily interfere, but the cardinal approach in a case of this kind has to be to strike the right balance between the court adopting a coercive approach and the court adopting a punitive approach. The sentencing exercise involves both those elements. It is, however, usual, especially in a family case of this kind, where the emotions are still running high, where there are problems over contact that have bedevilled and will bedevil the relationship of these parents, and of course also their children, to bear in mind that securing future compliance with the order is a more worthy objective for the court to achieve than the court standing on its dignity and imprisoning a contemnor for his contumacy. That is what the judge did, as his sentencing remarks made plain - and I repeat:

Now he was of course not in error in approaching the matter in that way. This man was up before him for his third contempt of an order that had only been made five months or so previously, and his failure to comply with the order deserves punishment, let there be no mistake about that. But given that the primary purpose of an injunction and the primary purpose of the committal for contempt which follows a breach of the injunction should be to endeavour to secure future compliance with its order, in my judgment the judge has, in this case, struck the balance incorrectly in giving undue weight to the necessity for the court to insist upon its orders being obeyed and to punish for the contempt.

It is necessary to bear in mind that any contempt is a serious matter, but it is also necessary to bear in mind how flagrant the contempt is, viewing it from the gravity of the breach. Here the breach was simply of driving past the home at night: there was no stopping, no gesticulating, no abusing; he was simply being a pest and a nuisance. There is no violence involved in this -- whatever, if any, violence has been used in the past, and I know not whether there has been or not -- but in the calendar of offending this was, as is rightly submitted to us, the most minor of offences. For those reasons I have concluded that this is a manifestly excessive sentence, which should be quashed. I would allow the appeal and replace the sentence of six months with a sentence of three months' imprisonment, which has the effect that Mr Aquilina will be released immediately.

But I ask counsel and her solicitors, who have on-going contact with this gentleman as he continues his fight through the County Court to secure proper access to his children, to tell him from me that we have had enough of this behaviour and if ever there is another sniff of a breach he may face a very much longer term in prison. But, by the same token, I would urge those who represent this mother to remind them that a quick rushing to the court for yet another committal may seem to be a jolly good thing at the time, but in the end it probably does nothing to advance the case whatsoever and will serve only to inflame the passions which already cause enough controversy. It is probably time for both these parties to take a deep breath and to review where they are and to start making positive arrangements that will enable them to separate with dignity and will enable their children to maintain a relationship with each parent, which ultimately will be in the best interests of their children, whom they each love. I would allow the appeal accordingly.

LORD JUSTICE CLARKE: I agree. All sentences of imprisonment should in principle be as short as possible, consistently with the circumstances of the particular case. On that footing, a sentence of three months would have been sufficient in the particular circumstances of this case, as outlined by my Lord, and a sentence of six months was manifestly excessive. I agree that the appeal should be allowed for the reasons given by my Lord and a sentence of three months substituted.