Birmingham City Council v Phillips [2016] EW Misc B32 (CC) (01 November 2016) [2016] EW Misc B32 (CC)

EWMISC
Birmingham City Council v Phillips [2016] EW Misc B32 (CC) (01 November 2016)
[2016] EW Misc B32 (CC) · 2016-11-01
[1]SENTENCING REMARKS APPROVED BY THE COURT SENTENCING REMARKS MR RECORDER KHANGURE QC: I have before me two applications both brought by Birmingham City Council against Mr Terrance John Phillips. By proceedings commenced on 2 nd September of this year, the local authority, by their particulars of claim, which is at page 6 of the bundle, seek an order pursuant to s.5 of the Anti-Social Behaviour Crime and Policing Act 2014 ("the Act") for an injunction to prevent Mr Phillips engaging in anti-social behaviour. That application is made pursuant to s.1(1) of that Act also. I am reminded that s.1(2) of the Act allows the court to be satisfied, on a balance of probabilities, that the defendant has engaged or threatened to be engaged in anti-social behaviour and, secondly, that it is just and convenient to grant the injunction for the purpose of preventing the defendant from engaging in anti-social behaviour. The definition of anti-social behaviour includes conduct that has actually caused or is likely to cause harassment, alarm or distress to any person or conduct capable of causing nuisance and annoyance to a person in relation to that person's occupation of residential premises.[2]The behaviour that is complained of is set out in paragraph 11 of the particulars of claim in reasonably detailed particulars which start from 2014 and go onto 2016, whereby I am told that on a number of occasions (and we are talking more than 200) police have been called to the premises at which Mr Phillips' mother and father reside. The background to this matter is as follows. The defendant, Mr Phillips, is aged 40. He lives at 1 Birchcroft, Windmill Lane, Smethwick under a secure tenancy granted by Sandwell Council. He has two children. They reside with Mr Phillips' parents, who have a secure tenancy granted by Birmingham City Council at 66 Coplow Street, Birmingham, B16 0DL. Unfortunately, Mr Phillips' wife died last year and the children have resided there since that date.[3]As I have said, I am told and I accept that West Midlands Police have responded to approximately 200 calls from the address, both from the defendant's children and his parents, over the course of time. On 2 nd September 2016, these proceedings were commenced seeking an injunction. At the same time, the matter came before District Judge Rich, who granted the claimant an ex parte injunction. The injunction made was recorded as follows. The court ordered that:
"The defendant, Terrance John Phillips, whether by himself or by instructing, encouraging or allowing any other person, shall not: (1) Harass, intimidate, use or threaten violence against Mr Barry Phillips or Mrs Janet Phillips of 66 Coplow Street, Birmingham, B16 0DL. (2) Enter Coplow Street, Birmingham, B16."
On the face of the injunction, a penal notice is attached, which reads as follows:
"If you, the within named Terrance John Phillips, do not comply with this order, you may be held to be in contempt of court and imprisoned or fined or your assets may be seized."
[4]Once the order had been made with the power of arrest attached, it is expressed to continue until the final hearing of the application or further order and, at that stage, a return date had been set for 16 th September. I am told that the interim injunction was served upon Mr Phillips. However, the defendant did not abide by the terms of the order and, on 11 th September, attended the forbidden address and therefore breached the order and was arrested. On 12 th September, he was brought before His Honour Judge Worster. There was an issue as to whether or not Mr Phillips had actually been served with the order on that occasion, therefore the matter was adjourned and bail was granted to Mr Phillips. On 16 th September, the matter came before His Honour Judge Tindal. He gave directions on the committal proceedings for breaching the order, they were adjourned to 3 rd October 2016.[5]On Monday, 19 th September, Mr Phillips again breached the order by attending 66 Coplow Street. He was again arrested and he was bailed. Despite the fact that he was bailed, on Thursday, 22 nd September, he again attended 66 Coplow Street and again he was arrested and he was remanded in custody to 30 th September of this year. On 30 th September, Mr Phillips was brought before District Judge Lumb, who was persuaded to bail Mr Phillips once again so that he could obtain legal advice. The matter was adjourned at that point to 11 th October. Unfortunately, on 2 nd October, Mr Phillips again breached the order by attending 66 Coplow Street, the very purpose for which the order had been made in the first place. On this occasion, on the following day on 3 rd October, Mr Phillips was brought before His Honour Judge McKenna. He was remanded in custody to 11 th October. On 11 th October, he was brought before Mr Recorder Readings , who refused to grant Mr Phillips bail and, on 19 th October, he again was brought before His Honour Judge McKenna, bail was once again refused and he was again remanded in custody. I am told that, on 27 th October, an application for bail was made and it was refused and he was remanded in custody.[6]Therefore, I have before me two applications. One is for an injunction for an indefinite period of time and the second is for the committal of Mr Phillips in what is now the fourth committal notice dated 3 rd October 2016. It is headed the fourth committal notice because of the various breaches that I have already referred to. Two things have happened this morning. Mr Phillips is still in custody on remand. He has spent 37 days so far, I am told, in custody. He, this morning, by attending and after talking to Miss Richardson, who is counsel for the local authority/claimant, has agreed to be bound by an injunction in the terms sought by the claimant, save that he considers that the injunction should be for a period of one year as opposed to two years. I have asked Mr Phillips whether he is content to have an order made against him in the terms as sought. I have read out the order in full so that he understands properly what its terms are and I have referred him to the fact that there is a penal notice attached to the face of the order, which clearly sets out that, if he is in breach of the order during its duration, then he could be committed to prison once again. Mr Phillips is content for the order to be made in the terms as sought and for a period of one year. I am satisfied, having read the evidence in this case, in particular the witness statement of Lilith McGrath dated 31 st August 2016, that it is appropriate and just and convenient for an order to be made. I have no doubt that the allegations made within the particulars of claim and the witness statement of Lilith McGrath and all the exhibits attached thereto, which set out each and every incident that has been recorded, require an order to be made under the Act to prevent Mr Phillips entering Coplow Street in Birmingham. Therefore, I make the order as sought.[7]The second issue is the committal proceedings. Mr Phillips again accepts paragraph 6, subparagraphs (a), (b), (c), (d), (e), (f) and (g) of the committal notice, save that, under subparagraph (d), he accepts that he attended the premises at 66 Coplow Street in breach of the order, but denies that he hurt his mother's arm or became aggressive and fought with his father. The claimant has taken a sensible view in that it is not proportionate to have a trial on one issue and that evidence comes from a police log in any event as opposed to somebody giving evidence and witnessing the alleged assault, so I disregard the alleged assault. However, it is still quite clear that Mr Phillips is in blatant breach of an order that was made.[8]I have come to the conclusion from his admission and the evidence that I have read of the various police officers that the standard of proof, which is the criminal standard of proof, in respect of committal proceedings has been satisfied. It is now for me to decide what sentence should be imposed upon Mr Phillips for these breaches. Section 14(1) of the Contempt of Court Act 1981 allows the court to impose an unlimited fine or a sentence of imprisonment of up to two years. There are three main objectives in sentencing for contempt of court. One, is punishment for the breach of the court order, two, is to secure future compliance and three, is to seek rehabilitation of the defendant and that is set out in Mr Richardson's skeleton argument by reference to the authority of Solihull v Willoughby [2013] EWCA Civ 699 .[9]I also have to bear in mind what the Sentencing Guidelines Council has set out in respect of a breach of an order as I have described. In the Sentencing Guidelines Council document, under the heading 'Breach of an Anti-Social Behaviour Order,' it states as follows: Nature of failure & harm Starting point Sentencing range Serious harassment, alarm or distress has been caused or where such harm was intended 26 weeks in custody Up to 2 years in custody If I am of the view that it is of a lesser degree, then the starting point is 6 weeks in custody with a possibility of a community order or up to 26 weeks in custody.[10]Having read the papers in this case, I am of the view that the seriousness of Mr Phillips' activities falls between those two brackets in that it is serious, however if one takes out the alleged assault, it is causing alarm and distress by turning up at Coplow Street in a drunken state, which in itself is very serious, as opposed to causing any further harm. However, under the heading 'Aggravating Factors' in the sentencing guidelines, I have to take into account whether the offender has a history of disobedience of court orders. In this case, I have already set out the history where he has breached court orders. Secondly, whether the breach was committed immediately or shortly after the order was made. There is no doubt that Mr Phillips did commit the breaches shortly after the order was made. Thirdly, whether the breach was committed subsequent to earlier breach proceedings arising from the same order. Mr Phillips in this case breached the original order on 2 nd September. He had the first committal notice served upon him. He breached it again. He had the second committal notice serviced upon him. He breached it again. He had the third committal served upon him and finally we have the fourth cumulative committal notice. I am reminded also that being drunk is not a mitigating factor in respect of being in breach of an injunction. Mr Phillips has told me that the main cause of his behaviour is that he drinks to excess and does not realise what he is doing.[11]In those circumstances, I have come to the conclusion that the period of imprisonment that Mr Phillips shall serve for being in breach of a court order on at least four occasions in a short period of time shall be 26 weeks in custody. He has spent 37 days in custody already. I am going to direct that those 37 days shall count towards that 26 weeks. It is open to me to allow those days to count. Therefore, the period of imprisonment for being in breach of the court order, Mr Phillips – please stand up – is 26 weeks. I am going to give you credit for the days that you have spent on remand and you will be entitled to release before the 26-week period. The Prison Service will let you know when that is going to be. THE JUDGE: There is one other factor that I want you to bear in mind and think about carefully whilst you are in custody. Remember this order lasts for a year now. If you breach it again, the court will take a very dim view and there is no doubt in my mind the judge who will hear that case in due course if you do breach it will think about imposing a far stiffer sentence than the one that I have imposed. Do you understand that? MR PHILLIPS: Yes, sir. THE JUDGE: I ask you to get as much help as you can whilst you are in custody so that when you do come out you can be a good father to your children. Address your drinking habits, otherwise you are going to get into trouble time and time again and it will be a downward spiral. Miss Richardson, is there an application for costs or anything? MISS RICHARDSON: I am just taking instructions on that. Perhaps before I get to that, just to be clear, for the committal order itself, it does need to specify the exact number of days that he will remain in custody, so on my calculation 26 weeks is 182 days, minus 37 days, is 145 days in custody. THE JUDGE: 145 days from today. MISS RICHARDSON: With regard to costs, I think we are seeking costs of the application, so there has been the injunction application, £380 for the costs of the injunction application. THE JUDGE: £308. MISS RICHARDSON: So, £308, that is the only thing those instructing me want to seek. That is the injunction application itself. THE JUDGE: Mr Phillips, they want £308 from you for the costs of these proceedings. Do you want to say anything about that? MR PHILLIPS: Not really. THE JUDGE: I so order that you will pay the claimant's costs of the proceedings, which will be summarily assessed in the sum of £308 and, further, the total amount of days that you shall spend in custody, i.e. your sentence from today having taken into account the credit you are getting, is 145, did you say? MISS RICHARDSON: 145. THE JUDGE: 145 days. That is subject to any early release provisions that may be in force anyway. Do you understand all of that? MR PHILLIPS: Yes, sir. THE JUDGE: All right, thank you. Miss Richardson, thank you for your skeleton. It was very useful. MISS RICHARDSON: Thank you. [Court adjourns]