September 2, 2025

Oberlander and another -v- Raphael

County Court Committal for Contempt of Court Judgment

Case Number: J10CL086

In the County Court at Central London

2 September 2025

Before:

His Honour Judge Monty KC

Between:

Mr Ozer Oberlander

Mrs Rachel Oberlander

-v-

Mr Edwin Sharett Raphael

Judgment

HHJ MONTY KC:

On 14 August 2025, at the conclusion of a hearing that had commenced on 16 July 2025, I found that Mr Raphael was in breach of various injunctive orders in 11 out of the 12 respects in which he was alleged to be in breach. I found that those breaches were proved to the criminal standard, which is the requisite standard in this case. I will return briefly to those breaches shortly.
The Oberlanders and Mr Raphael are next-door neighbours in Bethune Road in London. They were in dispute over a boundary since about 2020, when proceedings were commenced by the Oberlanders. Those proceedings led to a trial in front of Recorder Mullen in the summer of 2022, and I have been provided with a copy of his judgment of 5 August 2022. The litigation involved the location of the boundary between the two properties, and allegations of trespass, nuisance and harassment. The Oberlanders were the successful party. Recorder Mullen was very critical in his judgment of Mr Raphael’s behaviour.
In due course, injunctive orders were put in place. HHJ Gerald had made an injunction order on 25 March 2022, and, on 11 January 2023, in front of HHJ Lethem, Mr Raphael admitted that he had breached the injunction order made by HHJ Gerald. A further order was made extending the injunction in some detail by the order of HHJ Lethem of 11 January 2023. On that occasion, Mr Raphael was sentenced to 28 days’ custody for two admitted breaches, suspended for 12 months, taking into account a 10% credit for his admissions.
Unfortunately, by 1 November 2023, there were further breaches and, at a hearing in front of HHJ Freeland KC on 1 November 2023, Mr Raphael admitted further breaches of the injunction made by HHJ Gerald in March 2022 as extended by HHJ Lethem on 11 January 2023. The injunction was further extended by HHJ Freeland KC on that occasion, and (varying HHJ Lethem’s order) HHJ Freeland KC also imposed on Mr Raphael a sentence of imprisonment for 42 days. However, that continued to be a suspended sentence.
The alleged breaches of the injunctions continued such that there were two applications by the Oberlanders to commit Mr Raphael to prison for four breaches. By the time of the substantive hearing in front of me, there were a total of 12 breaches. They were set out in a document headed “Schedule of Live Breaches.” I found all but one of them proved for the reasons that I set out in my ex tempore judgment on 14 August, and I do not intend to repeat those here.
It is right to observe as follows.
First, the breaches that were proved were breaches that go back to a period during which the suspended order imposed by HHJ Freeland KC was in place.
Secondly, the breaches continued through 2024 and into 2025.
Thirdly, despite my plea to Mr Raphael that, whilst proceedings were in a state of adjournment between the July and August hearings, he did not do anything at all which might make the Oberlanders believe, rightly or wrongly, that he was further in breach of the injunctive orders, the behaviour carried on. Indeed, even after the hearing on 14 August, when I found the breaches proved, I was told yesterday by Ms Hausdorff that incidents continue.
This has put the Court in an extremely difficult position. The Oberlanders’ position originally had been that they had no wish to see Mr Raphael imprisoned, but the continued nature of the breaches led them, in my view not surprisingly, to change their position on that some time ago, and the Oberlanders’ position, for what it is worth, is that there has now come the time that the Court really should be sending Mr Raphael to prison.
Fourthly, I have also read a victim impact statement prepared by Mr Oberlander, and he talks about the various hearings and the history of this which goes back to 2020, with undertakings, injunctions, breaches, a total, I think, of six contempt applications, 14 hearings, 30 breaches, two (now three) findings of contempt of court with the breaches continuing and continuing despite warnings, suspended sentences and opportunities for Mr Raphael to just stop the behaviour of which the Oberlanders complain.
The Oberlanders are a large family. They are expecting their eighth child in mid-September. The pregnancy, I am told, is a high-risk one, and the behaviour of Mr Raphael has put an intolerable toll on the well-being of the Oberlander family. I entirely endorse what Mr Oberlander has said. He says, “We deserve the dignity and peace of feeling safe in our own home and garden.” Mr Oberlander also says that they very much regret that they had to bring these proceedings, but what choice have they got? After five years of what they describe as “a campaign of harassment”, the behaviour has still not stopped, and we have reached this point.
I also want to read the following paragraph from Mr Oberlander’s statement, which seems to me to summarise the position:
“This is not about a wall or a fence, or a planning dispute or anything material. This is about a father who wants his wife to go through a high‑risk pregnancy without harassment. This is about children who want to play in their garden and walk across their driveway without being cursed or watched. This is about a family who simply wants peace. We have had to spend countless hours and suffered an enormous mental and financial toll because of Mr Raphael’s intolerable behaviour over many years. Whilst these proceedings cannot completely remedy that, they can go some way to addressing it and ensuring that his behaviour won’t continue. Please let this be the end of it.”
That is what Mr Oberlander has said. The relevant principles that I have to take into account have been the subject of numerous Court observations over the years, but can perhaps best be extracted from the judgment of Dame Victoria Sharp in National Highways Ltd v Heyatawin [2021] EWHC 3078 (QB) at [48-9]:
“48. There is no tariff for sanctions for contempt of court because every case depends on its own facts…The sanction for contempt of court ‘has nothing to do with the dignity of the Court and everything to do with the public interests that court orders should be obeyed.
49. The key general principles are as follows:
a) The Court has a broad discretion when considering the length and nature of any penalty for civil contempt. It may impose (i) an immediate or suspended custodial sentence; (ii) an unlimited fine; or (iii) an order for sequestration of assets.
b) The discretion should be exercised with a view to achieving the purpose of the contempt jurisdiction, namely (i) punishment for breach; (ii) ensuring future compliance with the Court’s orders; and (iii) rehabilitation of the contemnor.
c) The first step in the analysis is to consider (as a Criminal Court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused by the breach of the order.
d) The Court should consider all the circumstances, including but not limited to (i) whether there has been prejudice as a result of the contempt and whether that prejudice is capable of remedy; (ii) the extent to which the contemnor has acted under pressure; (iii) whether the breach of the order was deliberate or unintentional; (iv) the degree of culpability; (v) whether the contemnor was placed in breach by reason of the conduct of others; (vi) whether he appreciated the seriousness of the breach; (vii) whether the contemnor has cooperated, for example, by providing information; (viii) whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea; (ix) whether a sincere apology has been given; (x) the contemnor’s previous good character and antecedents; and (xi) any other personal mitigation.
e) Imprisonment is the most serious sanction and can only be imposed where the custody threshold has passed. It is likely to be appropriate where there has been serious contumacious flouting of an order of the Court.
f) The maximum sentence is two years’ imprisonment…A person committed to prison for contempt is entitled to unconditional release after serving one-half of the term for which he was committed…
g) Any term of imprisonment should be as short as possible but commensurate with the gravity of the events and the need to achieve the objectives of the Court’s jurisdiction.
h) A sentence of imprisonment may be suspended on any terms which seem appropriate to that Court.”
When the Court is considering dealing with sentencing for multiple breaches, the Court should generally employ the totality principle, namely, the principle that, in general, when sentencing for more than a single breach, the total sentence should reflect all of the offending behaviour and should be just and proportionate.
I also take into account the principles set out in Attorney General v Crosland [2021] 4 WLR 103, a decision of the Supreme Court, which draws on the decision of the Court of Appeal in Liverpool Victoria Insurance Co Ltd v Khan & Others [2019] 1 WLR 3833 at 57 to 71, often referred to as “the Crosland principles.
“1. The Court should adopt an approach analogous to that in criminal cases where the Sentencing Council’s Guidelines require the Court to assess the seriousness of the conduct by reference to the offender’s culpability and the harm caused, intended or likely to be caused.
2. In light of its determination of seriousness, the Court must first consider whether a fine would be a sufficient penalty.
3. If the contempt is so serious that only a custodial penalty will suffice, the Court must impose the shortest period of imprisonment which properly reflects the seriousness of the contempt.
4. Due weight should be given to matters of mitigation, such as genuine remorse, previous positive character and similar matters.
5. Due weight should also be given to the impact of committal on persons other than the contemnor, such as children of vulnerable adults in their care.
6. There should be a reduction for an early admission of the contempt to be calculated consistently with the approach set out in the Sentencing Council’s Guidelines on Reduction in Sentence for a Guilty Plea.
7. Once the appropriate term has been arrived at, consideration should be given to suspending the term of imprisonment. Usually, the Court will already have taken into account mitigating factors when setting the appropriate term such that there is no powerful factor making suspension appropriate, but a serious effect on others, such as children or vulnerable adults in the contemnor’s care, may justify suspension.”
The breach of a court order is always a serious matter. A breach of a court order undermines the administration of justice. In the present case, I take into account the following.
I start with culpability. These were serious and persistent breaches of the various injunctive orders. It is right to observe, as has been accepted by the Oberlanders through their counsel, Ms Hausdorff, on every occasion, that, perhaps, taken individually, each breach on its own is or may be said to be relatively minor, but it is the combination of breach after breach after breach, coupled with the increasing intensity of the breaches, which means that, as a combination, I regard this as an extremely serious case.
As Ms Hausdorff has also observed, it seems that on every occasion, when there is either a new order extending the injunction or a suspended sentence that has been granted, Mr Raphael seems to redouble his efforts in what is nothing short of a campaign of extremely unpleasant harassment against the Oberlanders. He has done this knowing full well what the injunction required him not to do, and he has done it any event. He has done it despite warnings from the Court that he ought not to do it. He has done it despite the fact that there has been one and then a second suspended sentence order. He has done it over a period of years. He has never apologised. He has defended these proceedings in every possible way that he could. The long list of allegations have apart from one been found proved. “Culpability”, in my assessment, is “High.”
As to “Harm”, not only is there the fact that I have indicated that repeated and deliberate flouting of court orders is something which causes serious prejudice to the due administration of justice, the statement that I have read from the Oberlanders, it seems to me, is particularly apposite here. This was, in its campaign against the Oberlanders, a particularly unpleasant and deliberate intended harm, and it did cause harm to the Oberlanders. I have no doubt that, probably and sadly, whatever I do today, it will in the end continue as it has done over the last three years.
As far as mitigation is concerned, I take into account the following: Mr Raphael is 71 years old. He lives at his house next door to the Oberlanders, I think, with his partner. There are no other dependents as far as I am aware. As set out in the report of Dr Bansal, who is a consultant psychiatrist, whose report I have already dealt with to some extent in my earlier judgment on capacity, Mr Raphael has a number of physical and possibly other psychiatric difficulties which I think I can summarise in this way, by reading 12.4 and 12.5 of Dr Bansal’s report.
“12.4 If imprisoned, there is a substantial risk of serious deterioration in both his mental and physical health. His comorbidities, current chest pain and breathlessness significantly increase the likelihood of further myocardial infarction or stroke.
12.5 His cognitive impairment, mobility problems and severe anxiety would further limit his ability to care for himself in custody.”
I take into account that, in Dr Bansal’s view, Mr Raphael has an adjustment disorder, mixed depressive and anxiety disorder and mild to moderate cognitive impairment. However, I observe that most of what Dr Bansal describes in the section “Diagnostic Impression” seems to be connected to the dispute with the Oberlanders. There is no other underlying reason given for the difficulties that Dr Bansal has identified.
There has been some consideration given, I think at my suggestion today, and on other occasions when we have had hearings, that Mr Raphael might be able to move to live elsewhere, at least temporarily, and to be able to get some medical assistance during that period, but that has not proved possible. It is suggested today by Mr Mondoh that a friend of Mr Raphael who has been accompanying him over the last few hearings would like a few weeks to see if they could find alternative accommodation for Mr Raphael. However, on the other hand, as Mr Mondoh says, his instructions are that Mr Raphael has been in the property for 47 years and is very attached to it. Accordingly, I do not see that there is any common strand of thinking in that regard as to whether that would be a possibility.
However, I also take into account this: what are the options that are available to the Court? In my view, it is plain that a fine would not be appropriate. It is equally plain that the custody threshold has been reached in this case. The question, it seems to me, is whether the Court should impose an immediate custodial sentence rather than a suspended sentence. I do not think it matters if I deal with that before I deal with the sentence itself, because I am entirely satisfied that a suspended sentence is inappropriate in the circumstances. There has to come a time, and that time has been reached, where a further suspended sentence, which would be a third one, would simply be insufficient to meet the requirements of a sanction for contempt of court, which I have already summarised.
I therefore turn to what is the minimum sanction. The persistent breaches by Mr Raphael are so serious that only a custodial sentence will suffice. I take into account what has been said by Mr Mondoh, who echoes Mr Brittain’s written submissions and what is set out in the report by Dr Bansal. I have regard to both totality, looking at the breaches, and I also have regard to the suspended sentence of which Mr Raphael was in breach in regard to some but not all of the breaches; those that took place in 2023.
What, in particular, weighs with me here is Mr Raphael’s age and his various medical conditions. As a cross-check, I have regard to the Sentencing Council Guidelines for breach of a criminal behaviour order, whilst bearing in mind that the guidelines are for a different type of order, different types of breach and are in a different context, and the underlying principles are not the same. These provide an offence range of a fine to four years’ custody. In a case of moderate harm and high culpability, the starting point is one year’s custody, with a category range of a high-level community order to two years’ custody.
In the context of this particular case, and taking into account what I have said about culpability and harm, the sentence that I would impose before taking into account mitigation is one of 10 months’ imprisonment. Because of the mitigation that I have indicated, that is, Mr Raphael’s age and his conditions, the sentence I am imposing is a sentence of nine months’ custody.
I have considered very carefully whether I should suspend that sentence, and I am not going to, for the reasons I have already given. The conduct to date of Mr Raphael has been such that it seems to me that the Court has no other viable alternative. He has been on the brink of being sent to prison on previous occasions, and the time has come where nothing else will suffice. I am not prepared to suspend the order.
I am also activating the existing sentence of 42 days’ imprisonment, which will run concurrently. That means that the result of all of this is that there is a total imposition of nine months, with the 42 days that has been activated starting at the same time. Of that, Mr Raphael will be entitled to be released after half of that sentence has been served, and he has a right of Appeal to the Court of Appeal pursuant to section 13 of the Administration of Justice Act 1960 without permission to appeal being required.
My judgment in relation to this sentence is to be transcribed at public expense.
That concludes my judgment.