Judgment Approved by the court for handing down. | Egeneonu v Egeneonu |
ON APPEAL FROM THE FAMILY DIVISION
Mr Justice Cobb
FD13P02234
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE FLOYD
and
LORD JUSTICE PETER JACKSON
Between :
VICTOR DAMI EGENEONU | Appellant |
- and - | |
IJEOMA NKEM EGENEONU | Respondent |
Neelo Shravat (instructed by Miles and Partners Solicitors LLP) for the Appellant
Dermot Main Thompson (instructed by Bindmans LLP) for the Respondent
Hearing date: 15 November 2018
Judgment Approved
Lord Justice Peter Jackson:
On 5 October 2018, Cobb J sentenced Victor Egeneonu (‘Victor’) to a term of 7 months’ imprisonment for contempt of court: see Egeneonu v Egeneonu [2018] EWHC 3029 (Fam). Victor does not challenge the findings of contempt, most of which he had admitted, but now appeals against the length of the sentence.
The events leading to Victor’s imprisonment began in 2013 with the unlawful retention of three children in Nigeria by their father Levi Egeneonu (‘Levi’), since when they have been deprived of all contact with their mother. Judges of the Family Division have made repeated orders to secure the children’s return, but these have been consistently disobeyed. This eventually led to a series of findings of contempt and sentences of imprisonment for Levi, who is currently serving a sentence upheld by this court last July: Egeneonu v Egeneonu [2018] EWCA Civ 1714.
Victor, who is a 30-year-old married man with three young children, is either an uncle or an older half-brother of the abducted children. A number of the orders required him to produce information and to assist in securing their return. It has been the mother’s case that Victor has disobeyed these orders and instead done what he could to help Levi to keep the children in Nigeria. In 2015, she applied for Victor’s committal and Newton J found that he had lied a number of times over several hearings in an active effort to mislead the court. He sentenced him to 3 months imprisonment, suspended for 12 months. It is plain from his sentencing remarks that the judge showed leniency on the basis of Victor’s personal circumstances.
However, Victor continued in the same manner and more recently committed these further contempts:
On 11 August 2017 he gave false oral evidence (a) to the effect that Levi had asked him to make arrangements to bring the children back, and (b) about the amount of contact he had been having with Levi’s sister in Nigeria;
On 10 November 2017, he gave false oral evidence by saying (a) that he did not know where the children were or who was looking after them, (b) that he did not speak often to Levi’s sister and (c) that he had not written letters purporting to come from the children;
On 28 August 2017, he caused false evidence to be produced to the court by writing out letters dictated to him by Levi so that they could be produced as being from the children, knowing that the intention was to mislead the court as to the children’s wishes and feelings;
In August 2017 he caused a false statement from a third party to be produced to the court by assisting Levi in the creation of a document purporting to be from a friend of the mother that accused her of scandalous behaviour;
He disobeyed an order of Holman J dated 25 September 2017 requiring him to file a statement to explain his absence from a hearing he had been ordered to attend;
He disobeyed an injunctive order of Williams J dated 9 February 2018 by failing to provide the mother’s solicitor with a number on which he could be contacted during a visit to Nigeria.
Cobb J directed himself as to the two-year maximum term and to the relevant authorities in relation to principles of sentencing. He recorded the submissions made by Mr Neelo Shravat in mitigation, namely that Victor had made some real admissions, that there was no ongoing contempt, that he had attempted to make contact with members of the paternal family in Nigeria and had supported efforts by Chief Cyril Mbaeri to locate the children, that he had little personal influence and was acting in thrall to Levi, that his contempt had been committed at a time of difficulty within his own young family, that a sentence of immediate imprisonment would cause hardship to his family, and that he had now apologised to the court for his conduct.
The judge appreciated that Victor had made some recent efforts to contact the paternal family, including via Chief Mbaeri, and accepted that he had little influence in his family and community. However, he reminded himself of the cruel effects of child abduction, of the fact that there had been a previous suspended sentence, and of the deliberate and repeated nature of the contempts and their impact on efforts to locate the children. As to the personal mitigation, he observed that “any reference in mitigation to Victor’s family life and the impact on them has frankly little place alongside the effect on this mother who has been deprived of contact or any relationship with her three sons.”
The judge imposed the following sentences of imprisonment, totalling 7 months, in respect of the six contempts:
(a) 3 months; (b) 1 month concurrent.
(a) 3 months consecutive; (b) no penalty; (c) 3 months concurrent.
3 months concurrent.
1 month consecutive.
7 days concurrent.
7 days concurrent.
Victor has been well-represented on this appeal. Mr Shravat has made focused submissions in which he realistically does not challenge the judge’s identification of aggravating features or his imposition of an immediate custodial sentence. His argument is that the judge did not sufficiently take account of mitigating factors and that the sentence was as a result excessive. Specifically:
The judge was wrong in principle and in the specific circumstances of the case to exclude the impact of his sentence on Victor’s family where the significant impact of a custodial sentence on them was clear and foreseeable. Victor is the family breadwinner and the proceedings have caused stress to his family. His wife had unfortunately suffered a recent miscarriage.
The judge failed to give sufficient weight to the efforts since June 2018 of both Victor and his witness Chief Mbaeri to assist the Court and the mother in finding the children and setting up channels of communication between the maternal and paternal family.
The judge failed to give sufficient weight to the significant admissions made by Victor.
In the light of these matters, Mr Shravat submits that the sentence should have been shorter, and that if the appeal succeeds the balance of the sentence might be suspended to take account of time served.
I am clear that the judge was fully entitled to consider that these contempts were so serious that they required an immediate custodial sentence. This is rightly not disputed. Child abduction is so deeply harmful for children and their families that those who assist abductors and place themselves in contempt of court should normally expect nothing less. In this case there were a number of aggravating factors, notably the lengthy separation of the children from their mother, the prolonged and determined disobedience shown by Victor, his repeated lies in the face of the court and, crucially, the fact that he had a record for contempt for which punishment had been suspended.
As to the allowance to be made for mitigating features, the judge showed himself to be fully aware of the three matters to which attention is now drawn. He recorded that these breaches were substantially admitted, the more serious ones being evidenced by recordings of telephone calls between Levi and Victor. He specifically referred to Victor’s more recent efforts to assist in recovering the children and to his support for the intervention of Chief Mbaeri. Victor’s family is of course affected by his imprisonment, but there is nothing strikingly unusual about their circumstances. As seen from his remark, the judge did not ignore them altogether, but gave them little weight. He was entitled to see the irony of such a plea from a man who had for so long been so careless of the family life of others, particularly where the same plea had been made and accepted in 2015, so that Victor can have had no doubt about the risk that he was running in lying to the court and disobeying its orders. These were all matters that the judge clearly had in mind when fixing an appropriate penalty.
The headline elements of this sentence were three months imprisonment for lying to the court about Levi’s true intentions, three months for misleading the court about information that might identify the children’s whereabouts, and a further month for complicity in producing a bogus statement for filing with the court. Behind those elements are a number of other contempts for which no additional penalty was imposed. In my view the global sentence was within the range that was properly open to the judge. Had this been a ‘first offence’ Mr Shravat’s arguments might have had some slight purchase in relation to the length of the sentence, but this was a repeat contempt where the contemnor had simply carried on as before.
I would dismiss this appeal.
Floyd LJ:
I agree.
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