English and Welsh Courts - Miscellaneous

IN THE COUNTY COURT AT BIRMINGHAM

		Priory Courts 33 Bull Street Birmingham B4 6DS
		14th April 2016

APPROVED JUDGMENT

HER HONOUR JUDGE CARMEL WALL:

1. I must sentence you today for breaches of an injunction that was originally granted as an interim injunction on 23^rd December 2014, then as a final injunction on 16^th January 2015 and subsequently varied on 9^th October 2015. It is that final varied injunction that is relevant to these breaches today. The principal term of that injunction is that you were ordered not to verbally abuse, harass, intimidate, use or threaten violence against Maria McCormack of Bean Croft, Woodgate Valley, Birmingham. There were other terms of that injunction but the matters that you have admitted concern Maria McCormack and amount to breaches of that paragraph of the order.
2. I have seen a signed admission from you and I have also considered the evidence in the bundle that was prepared for trial today. In your signed admission, you accept breaching the terms of the varied injunction. You accept breaching it by engaging in aggressive behaviour at the home of Maria McCormack on four separate occasions and you accept that you became intoxicated and engaged in aggressive arguments with her, following which the police were called. The particular occasions on which you accept breaching the order are 20^th December 2015, the 21^st and the 24^th December and then again on the night of 9^th January 2016. I sentence you on the basis of those admissions of aggressive behaviour. Having regard to those admissions and the other evidence I have seen, I am satisfied to the criminal standard that you were in breach of paragraph 1 of the order on each of those four separate occasions.
3. In light of your admissions, the local authority do not seek to prove more against you. Although the original allegations were more serious, I stress that I sentence you on the basis of what is admitted. I also have regard to the fact that this is in the context of an ongoing and volatile relationship. I will return to that point later when I deal with the mitigating factors that your solicitor has advanced on your behalf. It is also right to say that although the matter was listed today for trial, the principal complainant, Miss McCormack, has not attended. Despite that, you have still made admissions. Although, therefore, your admissions are made late, on the day listed for trial, you are entitled to credit for having made them in the face of her not attending today. I do take that into account.
4. It is right to record that the purpose of sentence in committal proceedings is threefold. It is, firstly, to punish you for the breaches, secondly to ensure compliance with a court order and, thirdly, I must have regard to your rehabilitation. When I pass sentence I must balance the aggravating and mitigating factors that apply to each of the breaches in this case.
5. I turn, firstly, to those aggravating factors to which I attach weight. This is a court order which has been repeatedly breached. Not only has it been repeatedly breached but there have been previous committal proceedings, many of which have resulted in an immediate custodial sentence. It is right that I set out, for the court record, the chronology of matters as they are presented to me. When the interim injunction was granted, District Judge Maughan on 16^th January 2015 sentenced you to an immediate term of custody of two months. That was for breaches that had taken place in December 2014 and January of the following year. At the same time, the final order was made and, three months later, His Honour Judge Oliver Jones QC, on 19^th March, dealt with you for further breaches. He imposed a suspended sentence of three months when you appeared before him on that day. Two months later, on 21^st May 2015, His Honour Judge Worster dealt with you for further breaches that were admitted to have been committed on 13^th May. He activated the suspended sentence and he imposed a further 90 days sentence, which he reduced to take account of the time that you had already spent on remand.
6. You were subsequently released early from custody, following a second successful application to purge your contempt. The date of your release is not entirely clear. The application to purge was granted on 24^th July and it is likely that you were released either on that date or a few days later but, in any event, released in July. You were then arrested again in August and on 14^th August District Judge Shorthose dealt with the breaches by imposing a sentence of 54 days immediate custody. It would appear likely that you were released some time in September, probably having served half of the term that he imposed.
7. It appears then that in the November, 2015 following an allegation that was not proceeded with, you were then arrested again and were in custody for some weeks until being released on 20^th December. What you have admitted relates to, firstly, 20^th December, then the 21^st and then the 24^th, so three days immediately following your release from a remand. The matters for which you had been remanded in custody were not proceeded with, but it remains significant that the committal relates to breaches that occurred immediately on your release.
8. It appears then that you were bailed by the criminal courts, having been arrested in relation to some of those same matters. Whilst on bail you went on to engage in aggressive behaviour again, in breach of the order, on 9^th January. For that matter you were dealt with by Birmingham Magistrates' Court after a trial in February. On 11^th March, you were sentenced by the magistrates' court to a term of 16 weeks but by the time the magistrates sentenced you, you had already served that sentence and so were immediately released. So when I have regard to the history of the matter, I take account of the fact that you have committed breaches repeatedly during the life of the order, that you have been previously sentenced to custodial terms for breaches of the court order and that you, in addition, did not comply with bail conditions that the criminal courts imposed on you.
9. Having regard to those matters, the conclusion that I come to is that you are not minded to comply with this order and that it has very little effect on your behaviour. I am not satisfied that the history shows you have a real willingness to respect the order of the court. This court order is important and must be complied with.
10. I have heard what is said on your behalf and it seems to me that the continuing volatile relationship that you have with Miss McCormack, coupled with the risk that you are going to continue to drink, creates a risk of further breaches. There is nothing in what I have heard that shows that you have identified specific steps that you need to take to avoid breaches or risk of breaches in the future.
11. The next factor that I turn to is the conduct that is involved in these particular breaches and there are four of them. Firstly, they were deliberate, intentional breaches. There is no doubt that you understood the terms of the order, you have been dealt with it in the past and that you were quite aware of the risk that you took by being with Miss McCormack in drink.
12. I also have regard to the fact that she is the person who is named in this order as needing protection, so the fact that the breach is in relation to her specifically is an aggravating feature and shows that the order is not doing its job by keeping her safe. I have seen, in the papers, that she is someone who abuses alcohol. This aggressive behaviour took place when she was in her own home. I have regard, because of both of those factors, to her vulnerability as a person in need of protection. That is part of the reason the order was granted in the first place.
13. I accept the submission that is made on behalf of the local authority that what you have admitted though not actual violence is aggressive behaviour, and more serious than previous breaches. I do not sentence you for actual violence but the fact that you are admitting aggressive behaviour does represent an escalation in your previous conduct. In the past, it would appear, from what I have seen from the previous orders, that the court has dealt with you for committal proceedings in relation to presence at the property or breaching of an exclusion zone. On this occasion, you are accepting aggression and that does represent more serious conduct.
14. These breaches were committed whilst you were in drink. That is not a mitigating factor, it is an aggravating facto.
15. I also have regard to your character generally. You cannot put yourself before the court as a person of good character. I note in the last ten years you have an antecedent history that includes a section 4 Public Order Act offence and two offences in relation to police constables, so there is some history of aggressive behaviour in your antecedent record, although I accept no serious violence.
16. Those are the aggravating factors that I have considered.
17. I now turn to the mitigating factors. I have already addressed the position about your ongoing volatile relationship and your addiction. In my judgment, that provides an explanation for what has happened, a context, but it does not excuse it. In fact, the ongoing relationship creates a risk of further breaches and the failure to address the addiction, again, creates a further risk. The situation might be different if you could put before the court positive steps that you are taking to—

MR FELLOWS: I, I've arranged with the police officer to do something, this gentleman here.

THE JUDGE: I am told by your solicitor that when you are sober you can see what you need to do.

MR FELLOWS: Yes.

THE JUDGE: I would urge you to do it to avoid further breaches but, as things stand, there is no mitigation in relation to the alcohol.

What does mitigate your situation is the fact that you have made admissions and you have made those admissions despite the fact that Miss McCormack did not come to court today. So you made those admissions in the full knowledge, and no doubt with advice, that the local authority would have had some difficulty in being able to prove their case. Although these admissions are made very late in the day so I would in the ordinary course of things give very little credit, I give you some additional credit because you have made them in those circumstances.

18. I want to make it clear that in relation to the breach on 9^th January, which was also a criminal offence, and has been dealt with by the magistrates' court, I am not going to impose any additional penalty. That is because what you have admitted today is aggressive behaviour. What the magistrates sentenced you for was a battery. It seems to me it would be wrong, in principle, for me to add to the sentence because you have already been punished for your conduct on that occasion. However, I do still have to take account of the fact that, when I look at the other breaches, that they are three of four breaches of a court order rather than being three breaches alone. What I propose to do is to impose a concurrent term for those three breaches which means that it will be a single term that reflects the totality of all of those three breaches in the context of them being three of four. It seems to me that that is a proportionate way for me to deal with what you have admitted in the context of the case as a whole.
19. An immediate custodial sentence for the breaches is necessary and unavoidable. The least sentence that I would have imposed, but for your admissions, would have been one of 180 days. I reduce that, firstly to take account of your admission, to 150 days, which gives you about 15 percent credit for having made those admissions today. I reduce from that the 23 days that you have already served on remand and I give you full credit for those, which is equivalent to a 46 day sentence; so I reduce the total sentence by 46 days to ensure that I give you full credit. That means that the concurrent term that I impose for the breaches committed on 20^th, the 21^st and the 24^th December is 104 days. I impose no separate penalty in relation to 9^th January and the fifth breach that was alleged I record as being adjourned in accordance with directions that have already been given. So the effect of the total sentence, the 104 days, is that you will serve up to half of it. I would also record that had I had to sentence you for any actual violence, it would have been a very different situation.

MISS RICHARDSON: I am grateful, your honour. In the circumstances the local authority would make an application for their costs.

MRS PURCHAS: Yes. Well, your honour, you can probably imagine—

THE JUDGE: He is legally aided.

MRS PURCHAS: He is indeed, yes, he is legally aided. He has, unfortunately, no means currently inside.

THE JUDGE: If I make an order for costs with the normal LASPO provisions that they are not to be enforced in accordance with that Act. Is that something that you can draft for me please?

MISS RICHARDSON: Yes, yes, I think that it needs to be not to be enforced without order of the court because the provisions relating to legal aid, I believe for committal proceedings, are slightly different to normal civil legal aid; it is actually criminal legal aid. So it is normally not to be enforced without order of this court.

THE JUDGE: Yes, that would be the appropriate order.

MISS RICHARDSON: Your honour, we can deal with costs summarily because the only costs we are seeking is my fee. We are not seeking any other costs today so that can be dealt with summarily today if your honour wishes to do so.

THE JUDGE: Yes, I can assess those costs and then they are not to be enforced without leave. Yes?

MISS RICHARDSON: So the only costs we are asking for is my fee, which is £800 and then they are not seeking any costs in relation to solicitor's costs or the application fee or anything like that.

THE JUDGE: Yes, is there anything that you want to say about that?

MRS PURCHAS: No, your honour, thank you.

THE JUDGE: Yes, I assess costs therefore at £800 but not to be enforced without leave of the court.

[Hearing ends]