Birmingham City Council v Whitsey [2016] EW Misc B37 (CC) (24 November 2016) [2016] EW Misc B37 (CC)

EWMISC
Birmingham City Council v Whitsey [2016] EW Misc B37 (CC) (24 November 2016)
[2016] EW Misc B37 (CC) · 2016-11-24
[1]JUDGMENT HIS HONOUR JUDGE McKENNA: This is listed as a sentencing hearing in respect of a committal application made by Birmingham City Council against Mr Kieran Whitsey in respect of three breaches of the terms of an injunction granted by this court. The injunction was originally made pursuant to section one of the Anti-Social Behaviour Crime and Policing Act 2016 in the Birmingham Youth Court as the defendant was at that time only 17 years of age. He is now 18. The interim injunction with a power of arrest was granted on 3 rd August and the matter transferred to the County Court at Birmingham later in August when the defendant became 18.[2]On 8 th September His Honour Judge Robert Owen QC granted a final injunction with a power of arrest. The terms of that injunction were as follows, that:
"The defendant, whether by himself, or by instructing, encouraging or allowing any other person, shall not use or threaten to use violence, harass or intimidate any person, cause nuisance or annoyance to any person, including but not limited to, entering or trespassing in gardens, causing damage to or defacing motor vehicles, verbal threats, bullying and harassment, throwing, kicking stones or other objects at any person, property or vehicle or driving or being carried in any vehicle which is being driven in a dangerous manner or is being driven in a park, enter the area outlined in green on map one attached except that he may enter the area outlined in blue for the sole purpose of access to and from his home address [which at that time was 76 Tavistock Road, Acocks Green, Birmingham] by using the route outlined in blue."
He was also prevented from associating or gathering, whether individually or as a group, with a number of named individuals and finally he was prohibited from approaching, communicating or contacting by any means whatsoever any of another named group of individuals.[3]At the same time that Judge Robert Owen QC made the injunction final he also had to consider allegations of two breaches of what at that time was the interim injunction and those allegations being proved, he imposed a suspended sentence of 56 days. One of the terms, of course, of that suspended sentence was that the defendant should for the future comply with the terms of the final injunction.[4]The allegations which are the subject matter of today's sentencing exercise all relate to 2 nd October 2016 where the allegations, accepted by the defendant at the earliest opportunity, are that at approximately 12.30 hours he was within the exclusion zone, that at 15.15 hours he was again within the exclusion zone and that at about the same time, namely 15.15 hours, he was riding a motor bike in a dangerous manner causing smoke to come off, revving it and riding it at speed[5]The matter was initially adjourned for sentencing I think to 3 rd November and was again adjourned to today, I think to enable Mr Whitsey to obtain legal advice.[6]As I understand it there have been no further allegations of breaches of the injunction since 2 nd October.[7]What then should I do as to sentencing? There are three principle objectives of sentencing, punishment for breach, a desire to secure future compliance and rehabilitation of the defendant. Pursuant to the Contempt of Court Act 1981 I can impose an unlimited fine or a sentence of imprisonment up to a maximum of two years. There is no tariff as such, although there are some sentencing guidelines, which are of some assistance where a defendant has breached the terms of an anti-social behaviour injunction made pursuant to the Housing Act, although it is clear from the decision in Willoughby v Solihull Metropolitan Borough Council [2013] EWCA Civ 699 that those guidelines do not really bind in respect of repeat offenders as, I am afraid, Mr Whitsey is in this case.[8]Aggravating features include the fact that Mr Whitsey is a repeat offender. He is the subject of a suspended sentence of a not inconsiderable period of time. The breaches have all taken place over a relatively short period following the making of the initial interim order and, of course, the most recent breaches took place within a short period not only of the making of the final injunction order but in fact of the imposition of a suspended sentence. In the ordinary course of events a defendant in the position of Mr Whitsey could expect nothing less than an immediate custodial sentence in the circumstances.[9]What is said on his behalf is that the offences smack of immaturity. It is pointed out that he was only just 18 when these breaches occurred. He is now, after a period of being alienated from his parents, back living with his mother and step-father, who are present in court today to show their support.[10]Mr Whitsey is unemployed and is not in receipt of benefits. His ability therefore to satisfy any fine that the court might impose is non-existent.[11]The question is has he learned his lesson as was submitted on his behalf or not? Would the interests of justice be served best by sending Mr Whitsey to prison or bygiving him a further chance but with the knowledge that any further breach would inevitably lead to a significant period of time in prison?[12]I take into account his age, the lack of any further breaches since 2 nd October, albeit that is only a month and a half ago, and am minded not to impose an immediate custodial sentence in this case notwithstanding the existing suspended sentence. Nor will I activate that suspended sentence.[13]Whilst the significance of the breaches should not be underestimated and the importance of court orders being obeyed recognised so that where there is a breach of a court order a defendant can expect a serious consequence, in this case I propose to, as it were, postpone that serious consequence with the intention that the further suspended sentence which I am going to impose will act as a deterrent to prevent any further breaches.[14]In respect of each of the three breaches that Mr Whitsey has admitted I propose to impose concurrent sentences of twelve weeks to reflect the seriousness of the breaches in terms of their repetition and the fact that they follow so quickly on the making of the final order and of the imposition of the already existing suspended sentence. Those sentences will however be suspended on terms that the Defendant complies with the terms of the injunction[15]The existing suspended sentence will also remain in place and Mr Whitsey can therefore expect that if there is any further breach which is found to have been proved then in addition to whatever sentence may be imposed for that breach, however significant or insignificant that breach might be in the overall scheme of things, he can expect the suspended sentences to be activated and he will therefore serve 20 weeks in prison subject to any reduction in the usual way I am sure, Mr Hickock, that you will explain the significance of these sentences to the Defendant. Mr Whitsey, you had better comply with the terms of the injunction and your parents had better do the best they can to ensure that you do because there will be no further chances. MR HICKOCK: Yes, I have already explained, your honour, that clearly if he were to come before the courts again both the suspended committal orders would be consecutive to each other and also— THE JUDGE: Absolutely, yes. MR HICKOCK: —consecutive to any fresh term imposed. THE JUDGE: Exactly. Thank you very much, Mr Hickock. Thank you very much. Is there anything else from Birmingham City Council? COUNSEL FOR THE APPLICANT: No, your honour. THE JUDGE: No, all right. [Hearing ends]