14 August, 2008
One of the questions that we are regularly asked by clients is to comment on the potential longevity of custodial sentences where a tenant breaches the terms of an ASBI.
It is always important to consider the severity of the individual circumstances of the case and form a view on this basis. It is useful, however, to remind ourselves of a couple of recent decisions where custodial sentences have been given. These should enable Housing Officers to get a feel for the potential sentence which may be imposed. It is always a difficult, and often thankless, task when liaising with complainant tenants about the perpetrator's sentence – so every opportunity should be taken to empower Housing staff to provide tenants with some level of assurance over sentencing.
So let's look at a couple of cases.
This case focused upon a scenario which all Housing officers will be familiar with – noisy gatherings, loud music, shouting, swearing, banging and threats. Leeds City Council were successful in securing an initial interim injunction and ultimately a full injunction.
Approximately three months later, the injunction was breached following a gathering at the tenant's property which led to further loud music, banging and shouting. As a result of the breach the tenant received a six month custodial sentence which was suspended for two years.
The tenant appealed against the sentence and this appeal was dismissed. It is very interesting to note the approach adopted by the appeal court. The court took the view that the tenant's behaviour had been 'persistent, intimidatory and boorish' and that the strong warning which had been issued by the judge at first instance had been entirely justified. The tenant had chosen to ignore this warning and had breached the terms of the injunction within a short space of time meaning that the warning that had been given required reinforcement. The impact of the tenant's behaviour had also had a serious impact upon other local residents.
In terms of representations at court what can you pick up from this case and what should we be referring the judge to in the cases that you deal with?
With another situation which most Housing Officers will be used to, this case focused aggressive behaviour by an individual towards members of staff.
Here the injunction has been backed with a power of arrest to restrain the defendant behaving aggressively towards Longhurst's Housing Officers. The injunction also sought to prevent the Defendant going into the street where Longhurst's houses were located and from assaulting or abusing anyone.
The Defendant breached the injunction by entering the exclusion zone and by texting a local woman and her partner in excess of 40 times in an aggressive and threatening manner.
The Defendant was found by the police in the exclusion zone and arrested. The initial hearing was adjourned with the judge informing the Defendant that the injunction remained in force and that any further breaches may result in a substantial custodial sentence.
As is often the case, the Defendant left court and breached his injunction that same afternoon by verbally abusing and intimidating the same woman. He received a 9 month prison sentence in total for contempt of court and appealed against his sentence on the basis that it was manifestly excessive.
The Court of Appeal dismissed his appeal, finding that although no actual violence had been used, there had been repeated unpleasant and intimidating behaviour which justified the judge's conclusion that an immediate custodial sentence was called for in the face of deliberate and repeated breaches. The Court of Appeal noted that the sentence was stiff and not all judges would have imposed such a sentence, although the judge in question had not overstepped the sentencing bracket.
In terms of what you can use at court from this case, let's look at key considerations which can be used in representations at court:
In this case the Defendant had been in a long standing relationship with a vulnerable tenant of a local authority and was a frequent visitor to her property.
A number of complaints had been made by neighbours about the Defendant's conduct whilst visiting, which culminated in the local authority being granted an injunction to which prevented the Defendant from entering into the locality of the tenant's property.
The Defendant breached the injunction on numerous occasions and had previously been sentenced to suspended sentences and two terms of imprisonment. At the time of sentencing for the instant breach, the Defendant was the subject of a 16 week suspended sentence. The Judge imposed a 9 month prison sentence to be served consecutively with the 16 week suspended sentence that had been activated by his further breach of the injunction. The Defendant contended that his overall sentence was too long.
The Court of Appeal put down something of a marker in relation to the purpose of sentencing for contempt of court in allowing the appeal against sentence. Two key objectives were outlined. Firstly, to mark the court's disapproval at the disobedience and secondly to seek to secure future compliance with the order. The Court of Appeal commented that it was difficult to see a way forward in the instant case as whether the sentence was upheld or a lesser sentence was substituted it was unclear whether it would have any effect on the Defendant's relationship with the tenant. Having regard to the totality of the sentence, 13 months was deemed to be too long and disproportionate with the behaviour involved. A total sentence of 8 months was substituted comprising four months for the breach to run consecutively with the 16 week suspended sentence.
So what can be taken from this case?
The clear message that comes through from the case law is that there is judicial discretion although it is open to the Housing Officers to prepare their cases in a manner which maximises their potential to secure sentences which will both act as a deterrent and give the complainant tenant's peace of mind. It is important that Housing Officers get into the right habits and identify the issues which are going to be crucial in securing the results which are desired.