Advance Housing and Support Limited -v- Mousah: Sentencing Remarks

County CourtSentencing Remarks

Ref.  F01BS253

IN THE COUNTY COURT AT BRISTOL
2 Redcliff Street
Redcliffe

Date: 25/11/2021

Before:
HIS HONOUR JUDGE RALTON

Between:
ADVANCE HOUSING AND SUPPORT LIMITED
-v-
MOUSAH

 

MR SALTA appeared on behalf of the Claimant

MS HAMPTON appeared on behalf of the Defendant

JUDGE RALTON:

  1. The purpose of today’s hearing is to consider what sentence, if any, I should impose upon Mr Martin Mousah for breaching injunction orders made in the County Court, which breaches were found proven by myself at a hearing on 29 June 2021. Today is 25 November 2021.  The reason for the delay has been to enable Mr Mousah to obtain advice and representation.  Today I am assisted by Mr Salta, counsel for the shared owner, and, in effect, landlord of Mr Mousah’s flat.  That is Advance Housing and Support Limited and by Ms Hampton, who appears on behalf of Mr Mousah.  I have listened carefully to everything that I have been told.
  2. For a background to the case, reference should be made to the judgment that I gave in this court which has been transcribed at public expense and is found at page 187 of the bundle. It is a public document and therefore I do not propose to descend into any great detail with respect to the history of the matter.
  3. The reason injunction proceedings were sought against Mr Mousah by Advance Housing and Support Limited was because it was alleged against him that Mr Mousah had been guilty of antisocial behaviour of various types, including noise nuisance. Mr Mousah lives in Flat 1 of the Old Vicarage, which is a building which has been converted, if memory serves, into eight flats and there are neighbouring properties.  The landlord is concerned about Mr Mousah’s behaviour and the impact of that behaviour upon other residents.
  4. Following the making of the injunction order, the landlord was concerned that Mr Mousah was again breaching the injunction order and it sought and obtained an extension of the injunction order. At no time did Mr Mousah defend the injunction proceedings or seek to participate.  Unfortunately, notwithstanding the first injunction order and the extension by the second injunction order, Advanced Housing were told of 45 incidents of noise nuisance which resulted in the application for committal.
  5. The committal proceedings were properly served on Mr Mousah. He did not engage or participate in the proceedings and I found those 45 breaches proven.  They are all of the same nature, of noise nuisance impacting on the wellbeing of neighbours, the noise taking place typically in the early hours.
  6. It needs to be remembered that each person in the locality of the Old Vicarage is entitled to quietly and peaceably occupy their property without nuisance or disturbance. Making frequent loud noise in the form of music or in any other form is a very significant disturbance.  Ms Birchett, who occupies a neighbouring property has spoken of the impact on her of the disturbance on her sleep and how she is to all intents and purposes affected the next day.  It is not a bit of noise and the effect of noise in the early hours, disturbing people’s sleep should not be underestimated.  It is a very serious matter.
  7. There are a number of matters I need to consider in deciding what sentence to impose today. The following are general points.  The first is this.  That the ethos of the County Court in committal proceedings is not quite the same as the ethos in the Crown Court or for that matter, the Magistrates’ Courts.  The County Court wants to see compliance with its orders for the benefit of the other neighbours and residents of the Old Vicarage.  It punishes for breach of the injunction orders, not on the basis of criminal offence but because there has been a contempt of the court and the residents and neighbours have been disturbed.
  8. Secondly, the powers of the County Court are very different to those of the Crown or the Magistrates’ Courts. They are far less extensive.  The County Court has the power to imprison Mr Mousah for a term of up to two years.  It has the power to make a financial penalty against Mr Mousah or it can simply note that the breaches are proven and they can lie on the court file without any further sentence being imposed.  Matters such as community orders are not available to this court.
  9. I turn to consider the sentencing council’s guidelines for breach of a criminal behaviour order. Now, of course, those are guidelines addressed towards the Magistrates’ Courts or the Crown Court and their assistance is rather more limited in the County Court.  But nonetheless, I need to look at those guidelines to see not least whether the custody threshold is crossed and to give me some guidance as to the penalty, if any, I should impose.
  10. There are two matters to consider. They are culpability and harm.  When Mr Salta was addressing me, I suggested that I thought this was a B3 type case.  Mr Salta argues that no, this is a much more serious case.  He says it’s an A, category 1 or 2 type case.  Ms Hampton suggests that that is too high and suggests lower category.
  11. So far as harm is concerned, I have come to the conclusion that category 3 is too low and this is a category 2 case. The following points come to my mind.  Whilst this is noise nuisance, this is not noise nuisance committed during ordinary waking hours.  This is noise nuisance in the early hours and Mr Salta has properly reminded me of the harm of Ms Birchett and I am reminded of how harmful sleep deprivation is.
  12. So far as culpability is concerned, I remain of the view that this is a culpability category B case. Whilst it is right to observe that Mr Mousah failed to obey the first injunction order and indeed, failed to obey the second injunction order, there has only been one set of committal proceedings before the court, which is this set of committal proceedings.  This is not a case, as I observed earlier, where there have been previous committal proceedings and there has been escalation, escalation, escalation.  I do consider there to have been deliberate breaches, bringing the case into B but harm as I said earlier was number 2.  The guidelines tell me that the starting point is 12 weeks’ custody.  Category range, medium level community order to one year’s custody.  Therefore, it seems to me that the custody threshold is certainly passed.
  13. I need to address briefly the events of 29 and 30 October. These are not before me as part of the committal proceedings but some information has been given to me by Mr Ridley, the housing officer and indeed, Ms Hampton, Mr Mousah’s solicitor.  In the late hours of 29 October or the early hours of 30 October, Ms Birchett, it seems was again disturbed by an incident.  What I know about that incident is that there was a domestic incident involving Mr Mousah and his partner.  It certainly disturbed Ms Birchett sufficient for her to call the police.  But it is a very different type of incident to the noise incidents which I found proven.
  14. Furthermore, that domestic incident is the subject of investigation by the police and indeed, Mr Mousah has been charged, I am told, with actual bodily harm. He is currently remanded in custody to next go before, I think, the Crown Court at the end of this month.  It strikes me that that incident is a very discrete incident.  I do not downplay for the moment the impact the disturbance may have had on Ms Birchett, but I exclude it entirely from my mind for the purposes of sentencing today.  It will no doubt be dealt with by the Crown Court in due course.
  15. A point which has been made on behalf of Mr Mousah and is an important point is but for that domestic incident, Mr Mousah has otherwise complied with the injunction orders since the breaches hearing. There have not been any other noise nuisance incidents of which I am aware.  No evidence has been given of any other breaches.  There are no other committal proceedings before the court.  That is a point which is very important to me.
  16. Another point which has been made on behalf of Mr Mousah is that he is in a state of very bad health currently. The court has always known of his history of health difficulties but the court has today been handed a letter which tells me that Mr Mousah’s leukaemia has reappeared, that the treatment now is salvage palliative chemotherapy with potential life expectancy of six to 12 months.  Without doubt, that must be shocking news to Mr Mousah and this is a serious medical condition, not necessarily as serious as one can conceive of but it is at the very top end of medical conditions.  Some mention has been made that Mr Mousah may wish to sell up and move.  I am not sure that is a point that can assist me.  But I am also conscious that the landlord has now served on Mr Mousah a notice of seeking possession.  It may be that Mr Mousah loses his home in the future.
  17. With all that in mind, I turn to the sentence. Ms Hampton invites me, if I am to sentence at all, to make a financial penalty order against Mr Mousah.  I have given that thought.  Mr Mousah is on benefits.  He has, I suppose, the equity in his shared ownership home which the court could look at.  But I do not consider in a case such as this that a financial penalty is within the guidelines or is a sufficient penalty or is a sufficient deterrent.  I do consider the custody threshold to be crossed.
  18. Having regard to the guidelines, whilst this is a B2 case, so the starting point is 12 weeks’ custody, it seems to me that 12 weeks is too severe a period of custody. And in my judgment, the appropriate period of custody is six weeks.  I cannot give any credit for a plea of guilty and no time has been spent in custody.  So, that leaves the period at six weeks.  The critical question for me is, do I suspend?
  19. Given that which I have been told by Ms Hampton with respect to Mr Mousah’s condition, medical condition and given that except for the domestic incident, he has complied, I am prepared to suspend. Therefore, I will suspend the sentence for a period of 12 months, on condition of compliance with the injunction order.  That, Mr Mousah, gives you the opportunity to not go to prison by reason of the County Court proceedings.
  20. You need to leave this court knowing this. If there are no further breaches of the injunction order in the next 12 months, you have nothing to worry about so far as this court is concerned.  If however, there are any further breaches, then this court, if it finds that it is satisfied so that it is sure that those breaches are made out, it may punish you for those additional breaches and it may activate the suspended sentence I have given you today.
  21. So, you would be safest assuming that if further breaches are made out against you, you will be sent to prison ie to go inside. I hope that is clear.  I emphasise that is about what this court does.  What the Crown Court does about the domestic incident is a matter for the Crown Court, it is nothing to do with this court.  So, that is the order that I will make.  There will be a transcript of this judgment at public expense which will be put onto the judicial website in due course.

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