Walsall Housing Group v Boston [2017] EW Misc 15 (CC) (14 July 2017) [2017] EW Misc 15 (CC)

EWMISC
Walsall Housing Group v Boston [2017] EW Misc 15 (CC) (14 July 2017)
[2017] EW Misc 15 (CC) · 2017-07-14
[1]This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person. JUDGE GREGORY: Walsall Housing Group Ltd is a social landlord. Humphries House is a high-rise block of flats in Lindon Drive, Brownhills which forms part of its housing stock. On 25 February 2013, number 78 Humphries House was let to Lee Stuart Boston who became the tenant of that property. He lives on the fourteenth floor. One of his neighbours within the block is Andrea Price who lives at 79 Humphries House. Her flat is directly below Mr Boston's flat. After Mr Boston went to live at number 78 she complained to her landlord also Walsall Housing Group Ltd about his behaviour in terms of causing severe disturbance and nuisance and annoyance by shouting, swearing, screaming, banging doors, causing damage to property within the block of flats on many occasions.[2]That ultimately culminated in an application for a without notice ex parte as we used to say, injunction which was granted on 16 December 2016. The return date of that order was 10 January 2017. On that occasion, Walsall housing Group Ltd attended by counsel and Mr Boston attended in person. The injunction was continued. On 25 March 2017 he was arrested pursuant to an allegation of having breached the injunction. He was brought to court as a consequence of that arrest but due to a technicality the matter was then dismissed. An application to commit was made on 6 June 2017 based upon a number of alleged breaches, that application was supported by the evidence of Andrea Price in the form of a witness statement which I hereby grant leave to rely upon since I have also heard from her on oath dated 2 June 2017. Further allegations of breach were made against him which led to a second application to commit dated 21 June 2017. That was also supported by the evidence of Andrea Price in her witness statement of 28 June 2017.[3]Both of these matters have been listed for hearing today. Walsall Housing Group has attended with its witness Dawn Parsons who is a community safety officer and Mrs Price. Mr Boston has not attended. It is known that he sought legal advice on Monday of this week, he has not been in contact with either his landlord or the court to give any reason for his non-attendance today. I have therefore decided to hear the matter in his absence and have done so.[4]I heard sworn evidence from Dawn Parsons and Andrea Price. I unhesitatingly accept them as honest, truthful and reliable witnesses. The burden of proof in this case rests on Walsall Housing Group Ltd, the standard is the criminal standard for the court to be satisfied so it can be sure before it can conclude that any breach has been established, in old money, it has to be satisfied beyond a reasonable doubt.[5]I have before me the evidence upon which the initial injunction was granted in the affidavit of Dawn Janet Parsons sworn on 16 December 2016. In this affidavit, she relates to a visit to see Mr Boston and his conduct towards her and her female colleague during the course of that visit. His conduct, as she has described it, was frankly outrageous. He subjected them to a tirade of foul-mouthed abuse coupled with threats of harm to her and to others. He went so far as to threaten to kill her. She has confirmed in her evidence to me that this was a frightening episode as indeed it must have been. I come to the first allegation of breach.[6]He was forbidden whether by himself or others to cause or threaten to cause a nuisance or annoyance to persons in Humphries House for any reason, restrained from behaving in an intimidating, abusive, aggressive or threatening manner towards such persons. Restrained from interfering or harassing in any way whatsoever such persons and restrained from causing any noise nuisance whatsoever in Humphries House and that included shouting, swearing, screaming and banging doors but those were merely examples. It has to be borne in mind that I am not actually dealing with the incident of 25 March although I have seen Closed-Circuit-Television of his behaviour on that occasion. It showed him behaving in a deeply intimidating and aggressive way to a man who appears to be in his sixties, that was the belief of Mrs Price, in the communal areas of this block of flats. That is to say the corridor leading to the lift and the lift itself and he repeatedly approached that gentleman, placed himself extremely close to him, appeared to be very " fired up " because he was mouthing off to him and pointing at him. That is really the background to this matter. It is breach four of the list of alleged breaches in the application to commit which is dated 6 June 2017. I am not sure that I have to deal with that matter as such because it has already been dismissed so I only treat it as background to this matter.[7]It is then alleged that on 16 May at 1.12 am he engaged in shouting foul language as set out in the first paragraph of the application to commit. This language was loud enough to disturb and upset Andrea Price in the flat below. She is a vulnerable lady, she was at the time heavily pregnant and finding the pregnancy very difficult. Furthermore she is a medicated epileptic whose condition is aggravated by this such conduct. She was woken by this conduct at 1.12am and also 5.20am. She deals with that in paragraph 12 of her statement as follows:
'On 16 May 2017 at 1.12am and again at 5.20am I was woken up by Lee shouting and swearing and repeatedly banging on the floor', and she sets out the nature of his language. She says '
On 17 May the same thing happened, starting at 11.00pm and going on continuously for 15 minutes'. The effect of these matters was to drive her out of her flat to visit her friend within the block only returning at about 2.00am by which time she hoped he had calmed down. She fears for her health as a consequence of this behaviour on his behalf. She also describes an incident that occurred at the beginning of May when she challenged him about the noise and apparently, he apologised and said he would not do it again but that was a hollow apology on his behalf because he did. That lead to her challenging him about it again at the beginning of May when he sought to intimidate her by the veiled threat 'You don't know the people I know'.[8]On 8 June 2017 Mrs Price gave birth to a child, Daniel, and returned home from hospital with him on 10 June. Her husband lives in the same block of flats but in a different flat. Hers is a very modest property only one bedroom. They look after Daniel together. Nevertheless she was by herself at times in the flat albeit that on 15 June her husband was there with her. They settled the baby down and then at about 12.15am Mr Boston started creating an immense noise in his flat, shouting and then banging a window which he would open and shut repeatedly. She says this at paragraph four of her second witness statement:
'It was obvious that he was doing it deliberately as there was no need for him to keep opening and shutting the window. The noise went on for about three-quarters of an hour until 1.00am. He was shouting loudly the whole time. I don't know what he was shouting about or what started him off. The banging of the windows is a new thing because he usually hammers on the floor. It startled my baby who had been asleep on my lap. This was the last straw for me. I feel as if I want to move because nothing is going to be done to sort the situation out'
. It is that incident which gave rise to the second application to commit.[9]Having heard this evidence I am satisfied so that I am sure and find as a fact that this defendant created a nuisance through noise banging and swearing at 1.12 am on 17 May 2017 and thereby breached the injunction. I am satisfied and so find on the same basis that he did so at 5.20 am on 17 May 2017. I am satisfied that he sought to intimidate Mrs Price on a day unknown in May 2017 and in that way, breached the injunction. I am satisfied and find as a fact that he breached the injunction yet again on 15 June through creating a lengthy and distressing noise nuisance commencing at 12.15 am so as to disturb Mrs Price and her new-born child.[10]I then have to consider sentence for these four breaches which are the ones that I find proved. What do you submit that I should do about that Mr Nuttall? Proceed to sentence now or adjourn it for him to be able to come to court to be sentenced? MR NUTTALL: Before I come to that point, could I just raise a matter from Your Honour's judgment? JUDGE GREGORY: Yes of course. MR NUTTAL: Regarding the 25 March breach of which we've seen CCTV evidence. Although His Honour Judge Mithani had that, well he didn't have it before him because we didn't at that stage, know what the breaches were for reasons that have already been made clear. JUDGE GREGORY: You said he dismissed it, because he had no evidence to prove it? MR NUTTALL: He dismissed it yes, because there were no papers at court but he didn't actually make any findings on the point. Background discussion. MR NUTTAL: I am instructed that the evidence of 25 March which had not even been compiled at that stage so even if His Honour Judge Mithani had had the correct papers he wouldn't have been considering that. JUDGE GREGORY: So he was not arrested in relation to that one? MR NUTTAL: No. JUDGE GREGORY: Very well then I shall revise the judgment that I have given to say as follows: It now appears that I was mistaken in believing that His Honour Judge Mithani dealt with the incident of 25 March 2017 he did not. The only time that has been raised in court is in the first committal application. The allegation is a breach through behaving in a threatening and aggressive and intimidating manner. Although I do not know what he said to the gentleman who he approached, it is quite plain from the way he behaved and his body language that he was acting in a threatening and aggressive manner and I am so satisfied so that I am sure therefore that is a further breach in relation to an incident now some months ago, 25 March. I am not surprised that no application to commit was made in relation to that matter. That only became necessary as a consequence of his behaviour which so badly disturbed and distressed Mrs Price. Yes Mr Nuttall? MR NUTTALL: Your Honour I would like you to deal with sentencing today. If Mr Boston wishes to take steps after the fact then it is open to him to do so but Your Honour has heard the evidence and Your Honour is in a position to carry out the sentencing exercise. JUDGE GREGORY: Okay. Right. In this case there is a lengthy history of noise nuisance which has greatly disturbed neighbours within this block of flats and in particular a vulnerable lady Andrea Price. Considerable efforts have been expended by Walsall Housing Group Ltd to prevent a continuation of this behaviour, first the interim injunction then the final injunction. It has since been necessary for them to make two applications to commit which embrace conduct commencing in March continuing in May and most recently 15 June. This defendant has shown no inclination to obey the injunction and has shown no insight or at least no care whatsoever for the effect of his behaviour on his neighbours. His conduct is quite frankly utterly unacceptable in a situation where people live in very close proximity to one another. All of us are entitled to live in peace and harmony with our neighbours taking into account necessary give and take. It is quite plain having seen her that Mrs Price has reached the end of her tether with this man and I can have no confidence that he will obey the injunction in future. Sentencing has two primary functions. One to mark the displeasure of the court, two to secure future compliance. When one looks at the prospect of future compliance the court takes into account past conduct, expressions of remorse, promises of good behaviour.Where a defendant wishes to persuade a court that conduct will not be repeated, the defendant needs to place cogent evidence before the court to that effect. In this case the defendant cannot even be bothered to come to court for the hearing of this matter, which displays in my view a degree of contempt in itself towards the court proceedings and of course more importantly in his neighbours. I have come to the conclusion that only a custodial sentence can be justified in this case. Furthermore, it is not a case where there is any evidence at all let alone cogent evidence to persuade me that were l to suspend sentence, that would assist in bringing about compliance with the injunction and an improvement in this man's behaviour so as to enable Mrs Price to be spared the disturbance and distress which his behaviour causes. I bear in mind that I am not dealing with actual violence of any sort, I bear in mind that I am dealing with noise nuisance but it is a very immediate nuisance because so far as Mrs Price is concerned, it is coming through her ceiling. The sentences which I therefore impose are these: For the incident of 25 March one week's imprisonment, for the incidents at 1.15am and 5.20am on 16 May, four week's imprisonment, to run concurrently with one another and concurrently with the incident of 25 March. For the incident for the day unknown in May of 2017 one week's imprisonment to run concurrently with the other sentences. For the incident on 15 June 2017 four week's imprisonment to run consecutively making a total of eight weeks. That is a consecutive sentence because it was a breach committed whilst committal proceedings were extant for existing breaches. It is akin to somebody on bail for a criminal offence which they have committed, committing a further offence whilst on bail, which will always call for a consecutive sentence save in exceptional circumstances. There are none in this case. I therefore send this man to prison for a period of eight weeks. Anything else Mr Nuttall? MR NUTTALL: There is a cost application Your Honour. JUDGE GREGORY: Could I see the schedule please? Background discussion. JUDGE GREGORY: This is for today's costs? FEMALE VOICE: Yes. JUDGE GREGORY: Well as usual it is extremely modest. The defendant will pay the claimant's costs which have been assessed in the sum of £1,217.50 within 14 days. Background discussion. JUDGE GREGORY: Right. I am going to rise now. Perhaps in some time present me with the directions if you can agree them? Otherwise you are going to have to leave them for me to make them. MR NUTTALL: Yes I wonder if- JUDGE GREGORY: I am not going to be able hear from you further today. I have got too much else with us. It is a question of just handing it in and I will make an order. End of Judgment