R v Barry Anthony Drain
[2024] EWCA Crim 945
R v Gary Cushen
16 January 2024
[2024] EWCA Crim 38
Court of Appeal
A man repeatedly broke court orders protecting his ex-partner from him. He was given a three-year sentence for a recent breach involving Facebook messages. The appeal court thought this was too harsh as the messages themselves weren't violent, and his long history of violence was already considered. His sentence was reduced to 20 months.
Key Facts
- •Appellant (Gary Cushen) sentenced to three years' imprisonment for breaching a restraining order.
- •Breach involved Facebook messages exchanged with Ms. Mance, the protected party, after his release from prison.
- •The restraining order stemmed from a history of violence and harassment against Ms. Mance, including multiple convictions for battery and harassment.
- •Appellant had 62 previous convictions, including domestic abuse of another ex-partner.
- •The Recorder considered the offence to be Category 1A due to the appellant's history of non-compliance with court orders.
- •Appellant pleaded guilty.
Legal Principles
Sentencing for breach of restraining order should consider the seriousness of the breach and the defendant's history.
Sentencing Council Guideline
Double counting aggravating factors during sentencing is inappropriate.
Court of Appeal decision
Outcomes
Appeal allowed. Sentence reduced to 20 months' imprisonment.
The Court of Appeal found the original sentence of three years to be manifestly excessive. While the appellant's history of non-compliance justified elevating the offence to Category 1A, further increases based on the same factors constituted double-counting. The breach itself did not involve violence or threats, and the impact on Ms. Mance stemmed largely from the appellant's past actions and release from prison. An appropriate sentence after a trial would have been two and a half years, reduced to 20 months after a guilty plea.