R v Clive Mercer

The applicant applies for leave to appeal against five concurrent sentences of 12 months' imprisonment in respect of five breaches of a non-molestation order, contrary to section 42A(1) and (5) of the Family Law Act 1996.

On 11 June 2025, in the Crown Court at Woolwich, having earlier pleaded guilty, the applicant was sentenced by Mr Recorder Rankin. The Recorder also made a restraining order for five years until 11 June 2030, during which the applicant is not to contact the complainant or her daughter, nor to go within 50 metres of the complainant's home. We shall return to that order at the conclusion of this judgment.

The applicant's application for leave to appeal was refused on paper by the single judge. He sought to renew it but is now out of time and seeks an extension of time of 21 days in order to do so. He says that there has been a delay in his receipt of the order of the single judge and a chronology has been supplied setting out the nature of the delay. We grant the extension of time sought for renewing the application for leave to appeal.

The breaches took place on 4, 9 and 10 November 2024, 16 December 2024 and 3 March 2025. Following a previous issue involving the applicant, his sister (the complainant) sought a non-molestation order from the Dartford Family Court. An order was imposed by the Family Court on 23 April 2024 and was ordered to be in force until 4 pm on 23 April 2025. The order was imposed by consent. The applicant was represented and the meaning and effect of the order would have been explained to him.

The terms of the non-molestation order were that the applicant must not use or threaten violence against the complainant, and must not instruct, encourage, or in any way suggest that any other person should do so; the applicant must not intimidate, harass or pester the complainant and must not instruct, encourage, or in any way suggest that any other person should do so; the applicant must not telephone, text, email, or otherwise contact or attempt to contact the complainant, including via social networking websites or other forms of electronic messaging, either directly or via family members or any third party and that the applicant must not go to, enter, or attempt to enter the home of the complainant or any property where he knows or believes her to be living, or on the road where the home is situated.

The complainant lives with their parents. Their mother has Alzheimer's and the complainant said that the applicant takes advantage of the fact that his mother forgets that he is not allowed to attend the property.

The first breach of the order occurred on 4 November 2024. The complainant and her daughter were driving towards their home when they saw the applicant talking to his mother at approximately 4.52 pm. The second breach was on 9 November 2024. The applicant attended the home to collect £200 from his father. Ring doorbell footage captured the applicant outside the home at around 3.20 pm, before he left and walked back down the road. The third breach was on 10 November 2024. The applicant was seen again outside the home and was captured on the Ring doorbell footage as he left. The fourth breach was on 16 December 2024. The applicant was captured on the Ring doorbell footage walking up and down outside the home between 10 and 10.15 am. The fifth breach was on 3 March 2025. The complainant's daughter was at the home when she heard banging on the door. She could see the applicant's face pressed up against the glass window, looking into the property. She called the police.

The applicant was subsequently arrested. When he was interviewed on 4 March 2025 he admitted that he had attended the address. He said that he went there on 4 November 2024 as he had received a phone call from someone who lived locally who said that they had seen his mother walking around. He said that this caused him to worry given that his mother has Alzheimer's. He drove over there and dropped her home. He said that his mother told him she was scared to go home, so he walked her to the door and then the complainant came home at the same time and saw him there. The applicant said that he did not remember attending on 16 December 2024, but when asked how many times roughly he had gone to the address since the November occasion he said about six or seven times. He said that he went round on 3 March 2024 as he had not seen his parents in the last few months and he missed them and wanted to see how they were doing. He confirmed that he was aware that there was a non-molestation order in place and was aware of the conditions, which he believed to be unfair because it was preventing him from seeing his parents.

The complainant has made a victim impact statement. She said that she was frightened of the applicant. She expected that the non-molestation order would protect her, but the persistent breaches on the part of the applicant have undermined that expectation. The offending had a significant effect on her. She needed protection from the applicant and to be able to concentrate on her role as the primary carer of their parents. The result of the breaches was to make her feel unsafe in her own home and she worried that when she returned to her home the applicant would be there. She was also concerned for her daughter's safety.

The applicant was aged 63 at the time of the sentencing hearing, having been born on 20 April 1962. He had five convictions for seven offences spanning from 2022 to 2024. In 2022 he received a suspended sentence for various sexual offences. In 2023 he was fined for failing to comply with notification requirements. In March 2024 he was sentenced to a community order for failing to comply with notification requirements. In August 2024 he was sentenced to a community order for breach of a Sexual Harm Prevention Order and in September 2024 he was sentenced to one day's imprisonment for breach of a suspended sentence.

The applicant's offending was aggravated by the previous convictions and the fact that some of the offences were committed on bail. With reference to the sentencing guidelines, the Recorder placed the offending in category A culpability, because the breach of the Restraining Order was persistent, and category 2 harm, because it caused fear and distress. The starting point for a single offence was one year's custody, with a range from a high-level community order to two years' custody. The Recorder considered that the sentence after trial would have been 18 months' custody. He gave full credit for a guilty plea tendered at the earliest opportunity and imposed a sentence of 12 months' imprisonment. He took into account the principle of totality and ordered the sentences for each of the five breaches to run concurrently. The Recorder considered this to be the shortest time which could be imposed and that the sentence should be one of immediate custody in all of the circumstances.

We have read various representations from the applicant in support of his application. First, he has raised a question about the time which he has served on remand before sentence was imposed. He served a total of 14 weeks in custody prior to being sentenced. This does not count double for the purpose of calculating the time to serve, but it will count against the sentence: see section 240ZA of the Criminal Justice Act 2003.

Second, he has raised more generally a question as to how his sentence has been calculated such that he believed that he was due to have been released by now. He has not yet served the full time of the sentence.

Third, the applicant says that he needs to be released because, among other things, he is a carer for his disabled partner. Moreover, he says that he is a primary carer for his parents. This appears to show a lack of insight into his situation. He is not a primary carer for his parents. The complainant is the primary carer. He says that he misses his parents, wishes to be with them, and is distressed about their deteriorating health. The Recorder expressed it in the following apposite terms:

The applicant must acknowledge that his sentence of imprisonment was imposed and the Restraining Order was made because he has not engaged in that process and has disregarded orders of the court.

Fourth, the applicant says that he has another sister who has told him that the complainant is not frightened of him and that she is doing this in order to take control of their parents' finances. This is another example in respect of which the applicant is not coming to terms with the process, but is making out that he is the victim and not the complainant. It ignores the fact that the non-molestation order was made for a purpose and that he has pleaded guilty to five breaches of it. It is he who has brought this situation upon himself. The complainant is the victim and is entitled to the protection of the non-molestation order.

In our judgment the sentence was appropriate, bearing in mind the following:

If there had been a single offence, the starting point would have been a sentence of one year's imprisonment. The sentence stood to be increased, before allowing for a guilty plea. In view of the number of offences and the significant aggravating circumstances of the applicant's disregard for court orders, offences committed on bail and previous offending, the addition of six months to 18 months' imprisonment, before the reduction of six months for the guilty plea in the magistrates' was not excessive. The totality principle was applied.

For these reasons, it is not arguable that the sentence was manifestly excessive or that there was any error of principle. It follows that the renewed application for leave to appeal against sentence is refused.

The written representations of the applicant, to which reference has been made, give rise to concerns of the court which we must spell out. They do not provide any real mitigation. The applicant must realise why he has been sentenced and what is required of him when he is released from his sentence of imprisonment. Whatever his views, as expressed in his representations, he must familiarise himself with the Restraining Order. He must observe the Restraining Order meticulously. None of the matters which he advances to the court are an excuse.

The Restraining Order (editing out the names) reads as follows:

When he comes to be released from prison, the applicant must observe the Restraining Order. He must heed the warning. If he does not obey the Restraining Order, he can expect that he will be sent to prison again. He can also expect that a court would treat such disobedience as being particularly serious due to the offences for which he is currently serving a sentence of imprisonment.