Optivo Ltd v Naylor [2018] EW Misc B5 (CC) (17 May 2018) [2018] EW Misc B5 (CC)

EWMISC
Optivo Ltd v Naylor [2018] EW Misc B5 (CC) (17 May 2018)
[2018] EW Misc B5 (CC) · 2018-05-17
[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. WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. HHJ BACKHOUSE: I am dealing with an application for committal by a social landlord Optivo Ltd, formerly Amicus Horizon Ltd, against one of their tenants Stephanie Naylor who lives at 5 Thorn Walk in Murston.[2]On 14 June 2017, the court (the judge's name is not specified on the injunction) made an injunction against Ms Naylor under the Antisocial Behaviour Crime and Policing Act 2014, that order to last until 13 June 2018. The order contains seven clauses with sub-clauses and I need to read those out. 'That Ms Naylor is forbidden, whether by herself or by instructing or encouraging any other person including her children to: 1. Behave in a manner or engage in conduct which causes or is likely to cause a nuisance, annoyance, harassment, alarm or distress to:' Then the order specifies three classes of person: 1. Any occupant or visitor to any property owned and managed by the claimant in Murston, Kent.' (In shorthand that effectively means the claimant's tenants). 2. Any employee, agent or contractor of the applicant. 3. Five named persons: Gary Turner, Maureen Bennett, Royston Bennett, Jodie Bennett or Paul Bennett.' (The Bennett family, I am told, live opposite at 2 Thorn Walk). 2. Not to use foul, abusive or insulting language, whether verbally or in writing, to the same classes of person. 3. Not to use or threaten to use violence against those same classes of person. 4. Not to shout or play amplified music, whether inside or outside her property, at volumes such that it is audible in the street or from within any other property in Thorn Walk, Murston, Kent. 5. Not to use of keep within, or buy, or sell from her property any unlawful proscribed drugs, in particular but not limited to, cannabis. 6. Not to damage or attempt to damage or threaten to damage any property belonging to the applicant or any occupant or visitor to Thorn Walk.' (That again means tenants). 7. Not to communicate or attempt to communicate with either directly or indirectly, and for the avoidance of doubt by any means including by electronic means or via any social networking or other internet website, the five named persons. There is a power of arrest on clauses 1 to 5 of that injunction.[4]The application for committal is made by way of an amended schedule of breaches, undated, containing seven alleged breaches by Ms Naylor between 1 August 2017 and 24 November 2017.[5]Ms Naylor has had a number of opportunities given at previous court hearings to firstly, obtain legal advice and secondly, provide written evidence in response to the application. Of course, she does not have to provide a statement, since she has the right to silence but she has not availed herself of that opportunity, although she has thankfully obtained legal representation for today.[6]Today, Ms Naylor has made certain admissions in respect of four alleged breaches and the claimant has decided not to pursue the other three.[7]The admissions are in respect of allegations 1 and 2, which relate to an incident on 1 August 2017, allegation 3, on 26 August 2017 and allegation 6, on 7 November 2017.[8]The evidence in respect of allegations 1 and 2, which are one incident, comes from two officers of the claimant, Ms Alexandra Ahluwalia an Antisocial Behaviour Officer and her colleague Mr Robbins. The evidence is that they attended the property of Mr and Mrs Bennett and whilst inside 'we witnessed the respondent' that is Ms Naylor 'shouting and screaming'. Pausing there, it is regrettable that they failed to state where the respondent was. Nonetheless, wherever she was, she was shouting and screaming sufficiently that the officers managed to record much of what she was shouting on Ms Ahluwalia's mobile phone and I have heard that recording. One cannot hear all that is said, and in particular it appears that Ms Naylor is at times speaking to another person, or someone else is speaking to Ms Naylor, but much more quietly and we cannot hear what that person says. The parts that can be heard are as follows:
'I ain't done nothing fucking wrong and Amelia keeps lying. It ain't Amelia neighbours, it's just the dirty grass who stinks, whose had so many cocks, cunt. I want to hurt her. I know they are getting what they want. I know, I know they are. If I was to hurt her, they would know. They have just come in my house and just flung me a letter, you know the one they gave to you all. Are they not understanding how they are making me ill and that man can't come to me? He went to me, I'll come to you after. Oh god, I'll kill her today.'
[9]I have to say that the evidence makes it look as if all that is said in one block, but it was not – it was said with parts that were unintelligible and parts where someone else has said something.[10]Nonetheless, even with those caveats, in my judgment the claimant has proved beyond reasonable doubt that by shouting in that fashion and saying those words, the Defendant breached the injunction in the following ways: by behaving in a manner which was likely to cause nuisance, annoyance, harassment, alarm or distress to Mr or Mrs Bennett and also technically likely to cause those things to the claimant's employees who were in the Bennetts' home. That is in breach of clause 1 of the injunction.[11]She clearly used foul, abusive or insulting language to the same persons and that is a breach of clause 2.[12]In my judgment, it is not possible to find beyond reasonable doubt that when she said 'I want to hurt her, I will kill her today', Ms Naylor was referring to any of the named persons or the classes of persons in clause 3 of the injunction and so I cannot find that there is a breach of that clause.[13]Nonetheless, Ms Naylor was clearly shouting at such a volume that it was audible in the street and from within the Bennetts' property and that is a breach of clause 4.[14]Turning then to the next admitted breach, on 26 August 2017, the evidence comes in an affidavit by Maureen Bennett, a lady of 73, and a longstanding resident as she tells me in her affidavit, at number 2 Thorn Walk. This affidavit is dated 15 December 2017. The incident happened at approximately 10.35am, the respondent was pacing in front of Mrs Bennett's home and Mrs Bennett noticed on her CCTV camera that the respondent had moved to the side of the property. I will read the rest: 'I went into my back garden as I was worried that the respondent would throw items over my wall. I heard the respondent shouting "the old slag's security cameras are invading my privacy and I am not having it. This I know is my fucking rights. Fucking cameras".[15]The claimant has proved beyond reasonable doubt that that behaviour and those words are a breach of clause 1 of the injunction in that it is behaviour likely to cause nuisance, annoyance, harassment, alarm or distress to Mrs Bennett. It is clearly foul language, abusive language to Mrs Bennett "the old slag". It is clearly shouting, audible in the street or within Mrs Bennett's property, and it is also an attempt to communicate indirectly with Mrs Bennett. That is clause 7 of the injunction.[16]Turning then to the last admitted incident on 7 November 2017. Again, the evidence comes from Mrs Bennett and from a recording which her husband made on a Dictaphone and which I have listened to. Again, not all of what the respondent says is audible. She drops her voice at certain points and appears to be talking at least part of the time to her son, Billy. There is a transcript of this which makes clear what can be heard and what cannot but those parts which can be heard are these:
'Devious, dirty cunts, devious lying bastards. I hate you, I hate you, cos you're fucking full of shit, you are liars. You got on your CCTV you knob heads, who come here then? Who come to my house? Who come to my home? You've got it on your camera and you're lying about me. You are chatting shit.'
That appears to be what she said. 'Everywhere I go I see Gary.' That is presumably Gary Turner. 'Amelia, Bethany, I see you all. You're all lying, dirty lying cunts ain't you. Are you alright? Are you alright? Yeah, yeah. Ah lovely. Get someone to help me and fucking help me because I will kill you, I will kill you. I will fucking write them off. I will never touch my own cos I won't let you, I won't let you. Amelia, you keep telling me where I am going Amelia. Gary keep telling. They are asking Ruby for fucking lists, they're doing it, they're doing it and I know you can hear me because the fucking walls here are like paper.' Then she talks to Billy:
'I will actually hurt them, won't I? Cunts. I will stab you all up.'
[17]The statement from Mrs Bennett suggests this was at 11.45pm although I am told in fact it is 11.45am and I will proceed on the basis that it was in the morning. Mrs Bennett says that Ms Naylor was sitting on her own doorstep shouting and screaming and this was all recordable from within the Bennetts' property. Clearly therefore, the claimant has proved beyond reasonable doubt that clause 4 of the injunction in terms of shouting at such a volume to be audible has been proved.[18]Again, this is behaviour likely to cause nuisance, annoyance, harassment, alarm or distress to Mr and Mrs Bennett and clearly includes foul, abusive and insulting language to them. In my judgment the Defendant very clearly threatens to use violence against Mr and Mrs Bennett; she says, 'you all' and it is clearly communication with Mr and Mrs Bennett in breach of clause 7.[19]I therefore find beyond reasonable doubt that the defendant has breached the injunctions in the ways I have just specified.[20]I come now to the issue of sentencing of Ms Naylor for the breaches which I have found in respect of the four admitted incidents. The starting point is to have regard to the Sentencing Guidelines Council's Guidelines in respect of breach of an Antisocial Behaviour Order. Now, of course, breach of an ASBO carries a higher maximum penalty than an injunction under the Antisocial Behaviour Crime and Policing Act 2014. The other major difference is that in the county court community sentences are not available and those very significant differences do have to be borne in mind.[21]The first thing I should do is to identify a starting point and there is a table in those Guidelines which suggests three categories of offences and a sentencing range for each category. There is a deficiency in the applicant claimant's evidence in that Mr and Mrs Bennett, who are the victims of the breaches, were not asked to describe the effects on them of the behaviour by Ms Naylor and, therefore, the court's findings are that the behaviour was likely to cause nuisance, annoyance, harassment, alarm or distress. Nonetheless, it is permissible when considering the issue of sentencing to take into account not only the harm actually caused but also any harm that was intended or might foreseeably have been caused and that is an objective test.[22]In two of these incidents Ms Naylor stood in the street, shouting at the top of her voice. Screaming is an adequate description and it is very noticeable that her pitch or volume changes so that this is wilful screaming. She knows what she is doing and she means people to hear her. In my judgment, it was foreseeable to her that those hearing it, particularly, Mr and Mrs Bennett who are older people, would be caused harassment, alarm or distress. If one looks at what the respondent admits saying, and she has to admit it because it is recorded, not only is the language absolutely vile but there are a number of serious threats to kill: 'I will actually hurt them. I will stab you all up', and so forth.[23]I have to deal with each breach separately. Breach number six, in November, is clearly in the serious category. Breaches one and two, which are one incident are, in my judgment, in the middle category, a lesser degree of harassment and alarm. Breach number three is at the bottom of the lesser degree but, I think, has some seriousness because it involved Ms Naylor actually going around the side of the Bennetts' home and it is directing to them comments about their CCTV.[24]The starting point in the Guidelines for the middle, lesser degree, is six weeks' custody and for serious, 26 weeks but, of course, I have got to take into account that that is within an overall maximum penalty of five years, whereas, the maximum sentence which this court can impose is two years. The aggravating factors are the number of breaches, occurring shortly after the order was granted but going on over a period of months and, in particular, there is targeting of Mr and Mrs Bennett who are protected specifically in the injunction order.[25]As for mitigating factors, there was no long period of compliance before the breaches started and, in my judgment, the defendant had had ample opportunity to get the order explained to her, even if she was not at court when it was granted.[26]Mr Young raised issues about her mental health. I see that she had a diagnosis in January 2015 of adult ADHD and antisocial personality trait for which she was given various forms of medication but there was no need to keep her within the adult community mental health service. There is a letter from the mental health team of 5 December 2017 from a Dr Toms-Whittle referring to an admission overnight to hospital on 9 November 2017, after which Ms Naylor was discharged with GP and community mental health follow-up. She was seen on 27 November by the mental health team. Dr Toms-Whittle saw her on 14 November and at the appointment, 'She was very distressed and chaotic in her behaviour and medication was increased at this point'. At a consultation with the mental health nurse on 1 December 2017 she reported feelings of paranoia and wanted to self-harm. Then the same medications appeared to be prescribed as before but with the addition of one other from what I can gather.[27]I am not persuaded that it is necessary to defer sentencing to obtain more up-to-date or complete medical evidence, as Mr Young submitted. I note that this application has been pending now for at least five months and has occupied a number of court hearings and, as I said at the outset, Ms Naylor has not, so far, produced any evidence either in relation to the substantive allegations or in mitigation. I proceed on the basis that she has the diagnosis but that there are no issues as to her litigation capacity and she seems, as has been put on her behalf, to be able to live independently in the community and care for her two sons. She may have been more agitated, paranoid, chaotic, leading up to that admission after the last incident but it seems to me that her neighbours are entitled to live their lives quietly and without this type of behaviour which is completely unacceptable.[28]Sentence[29]Having taken all those factors into account I am satisfied that the custody threshold is passed. The sentences which I intend to pass for each breach are as follows: for one and two, six weeks custody. For three, four weeks custody and for six, 13 weeks custody but those sentences to run concurrently so that the total sentence is 13 weeks. I will give a week's discount for Ms Naylor's last minute admissions which came too late to relieve Mr and Mrs Bennett of the necessity of attending court. That means a total sentence of 12 weeks. I consider the totality of the sentence is proportionate to the admitted breaches.[30]Having regard to the lack of incidents since 7 November 2017, which indicates to me that Ms Naylor can control herself when she chooses, (although I am not particularly happy about the continued muttering from her while I am giving judgment, which indicates to me she does not really take full responsibility), I think it is right that this sentence is suspended. It will be suspended for one year. I intend to extend and amend the existing injunction order so that it runs until the expiry of the suspended sentence period i.e. until 17 May next year. Ms Naylor needs to understand that if there is another breach which is proved she will be sentenced, not only for that breach, but this suspended sentence will be activated. Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com This transcript has been approved by the judge.