R v Terry Dervan

On 13 January 2025, in the Crown Court at Manchester (Minshull Street), Recorder Andrew Vinson sentenced the appellant to 4 years' imprisonment for an offence of assault by beating, contrary to section 39 of the Criminal Justice Act 1988, two offences of breach of a non-molestation order, contrary to section 42A of the Family Law Act 1996, and two offences of racially aggravated stalking involving fear of violence, contrary to section 32 of the Crime and Disorder Act 1988 and section 4A of the Protection from Harassment Act 1997. In addition, the judge made a restraining order and ordered the appellant to pay the victim surcharge. He now appeals against sentence by leave of Sir Nigel Davis.

The appellant and Sarah Howarth were in a relationship for around 10 years and have four children together. The relationship ended in August 2022. In view of his conduct, a judge sitting in the Family Court on 24 September 2024 made a non-molestation order against the appellant. The order prohibited the appellant from, among other things, having any contact with Ms Howarth.

On 18 October 2024, when Ms Howarth and her partner, Arshad Rigby, were picking up her daughter from a friend's house, the appellant breached the non-molestation order. As Ms Howarth went back outside and placed her daughter into her car, she heard a car horn. She turned and saw the appellant sitting in his car. Ms Howarth got back into her car and the appellant pulled alongside. He started to scream and shout. He called the complainant "a slag" and that he was going to "batter Paki Ash". He also threatened that he would get his hands on "Paki Ash". Ms Howarth told the appellant to drive on and reminded him that a non-molestation order was in place. The appellant then opened his car door and spat into Ms Howarth's face before moving off. Later, the appellant called Ms Howarth. He said that he wished to apologise but in the same conversation again threatened to hurt Mr Rigby.

On 19 October 2024, Mr Rigby received a message from the appellant via Facebook Messenger. The appellant claimed Ms Howarth had not been loyal and that she had been playing both of them. Later that day, Ms Howarth received a telephone call from the appellant. Later still, the appellant sent a Facebook Messenger message to Mr Rigby's brother-in-law, again suggesting that Ms Howarth was not being loyal.

The appellant continued to call Ms Howarth over the evening. He threatened to set Ms Howarth’s house and that of her partner's mother on fire. He threatened to stab Ms Howarth and her partner. On 20 October 2024, the appellant sent further messages to Mr Rigby, calling him "a little Paki cunt".

The appellant had 24 previous convictions for 59 offences spanning from 3 January 2003 to 16 October 2023. These included one offence of robbery, one offence of battery and three public order offences. Of particular note, his previous convictions include six offences of breaching an anti-social behaviour order. On no fewer than nine other occasions, he was in breach of some other order made by the courts.

In passing sentence, the judge considered the guidelines issued by the Sentencing Council. He considered that the breaches of the non-molestation order were category A1 offences; high culpability because these were serious and persistent breaches, and category 1 harm because the offences caused very serious harm or distress. The starting point for such an offence is 2 years' imprisonment with a category range of 1 to 3 years. The judge identified that this offending was aggravated by the appellant's previous convictions and his history of disobedience of earlier court orders; the fact that these offences were committed shortly after the making of the non-molestation order; the fact that the appellant persisted after Ms Howarth reminded him of the order; and the presence of a child in the car. The judge did not identify any mitigation.

The judge said that the stalking offences were category B2 offences; high culpability because the appellant intended to maximise the level of fear or distress, and category 2 harm because some distress and psychological harm had been caused. The judge said that these were persistent and vile offences. The guidelines therefore gave a starting point of 36 weeks' imprisonment with a category range up to 18 months. The offences were aggravated by the previous convictions and the history of domestic abuse.

The judge concluded that the appropriate sentences after trial were 3 years' imprisonment for each of the breach offences; 18 months for each of the stalking offences (calculated as 12 months before considering the aggravating feature of race but then uplifted to reflect a medium level of racial aggravation); and 9 weeks for the assault committed by spitting at Ms Howarth. The judge then considered totality and gave full credit for the appellant's guilty pleas to reach his final sentence of 4 years' imprisonment. It follows that the judge's notional sentence after trial was 6 years' imprisonment.

In his pithy and able submissions on behalf of the appellant, Mr Fireman argues that the judge was wrong to find category 1 harm in respect of the breach offences. He concedes that the court might properly have found serious harm but not very serious harm and, in any event, he argues that a sentence of 6 years after trial was manifestly excessive.

In our view, the judge was plainly right to conclude that this offending was seriously aggravated by the appellant's previous convictions and, in particular, his appalling record of breaching court orders. There were, as the judge identified, further aggravating features. First, the incident in Ms Howarth's car was witnessed by her child. Secondly, these offences were committed a short time after the making of the non-molestation injunction. Thirdly, in respect of the assault, there was the context of domestic abuse. Fourthly, as identified by the judge, the appellant persisted in the incident at the car despite being reminded by Ms Howarth of the order. Finally, there was the appellant's vile racism towards Ms Howarth’s new partner. There was, as the judge identified, no mitigation. We are satisfied that this case called for severe punishment. That said, unpleasant and persistent though these offences were, the only actual violence was the disgusting incident when the appellant spat on Ms Howarth.

In our judgment, the judge was entitled to conclude that the racially aggravated stalking offences and the assault offence merited sentences of 18 months and 9 weeks’ imprisonment respectively after trial. As to the breach offence, which is the focus of this appeal, the judge was entitled to find that these were high culpability offences. The judge took some care in assessing harm. He referred to Ms Howarth's victim personal statement where she described the appellant as a "monster" when he had drunk alcohol and said that he frightens her and that he causes chaos. She says that this is "never ending" and that his behaviour impacts her wellbeing.

Like the judge, we recognise that care must be taken in domestic abuse cases not to underestimate the harm which may be caused by a breach of an order. We accept, however, the submission that the evidence in this case was insufficient to prove to the criminal standard that these breach offences caused, or that the appellant intended to cause, very serious harm. We consider that the seriousness of this case is properly reflected by a finding that these offences caused, and were intended to cause, serious harm. We therefore conclude that these breach offences were miscategorised and that it is necessary for this court now to reconsider the appropriate sentence for these breaches.

The guidelines indicate a starting point of 1 year's imprisonment for A2 offences with a category range of up to 2 years. In view of the many aggravating features in this case, we consider that the judge would have been entitled to go up to the very top of that sentencing range for a single offence. For both breach offences we consider that a total sentence of 3 years' imprisonment after trial was justified. The judge was then of course required to consider the other offences and the principal of totality. In our judgment, the just sentence after trial for the appellant's total criminality in this case was in the region of 4 years' imprisonment. Such sentence would equate to 32 months after full credit for the appellant's guilty pleas. We therefore conclude that the error in the categorisation of the breach offences resulted in a sentence that was manifestly excessive.

Accordingly, we allow this appeal against sentence. We quash the sentence of 4 years' imprisonment on the first breach offence and substitute a sentence of 32 months' imprisonment. That sentence will run concurrently with the other sentences imposed by the judge, with the result that the total sentence to be served is reduced to 2 years and 8 months.