Case No: G00BM447
IN THE COUNTY COURT SITTING AT BIRMINGHAM
His Honour Judge Murch
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1. This matter comes before me this afternoon to consider the sentence which I should impose upon Mr Johnstone as a result of his admitted breach of an injunction granted by this Court on 25 September 2020.
2. The injunction made the following prohibition: the defendant was not to enter Millhouse Road, Yardley, Birmingham, B25 or attend Flat 1, 219 Millhouse Road, Yardley. Also, paragraph 3 prevented the defendant from contacting Miss Babenna Younis by telephone, including but not limited to, text messages. There was also a prohibition upon the defendant harassing, intimidating, using or threatening violence against Miss Abeda Eunice.
3. It is accepted on behalf of the defendant that on Saturday, 22 January 2022, he was found in the garden of a property next to that which is occupied by Miss Younis. The circumstances in which that occurred I shall come to in a few moments.
4. It is necessary first for me to set out the history of the matter so far as is relevant to the question of sentence before me today. It is not the first time the matter has come before the Court. It is accepted that on 20 March 2020, the defendant was sentenced to a term of 56 days’ imprisonment, which was suspended.
5. On 29 June 2020, the matter came back before the Court again, when HH Judge Truman imposed a further 14 days but did not activate the term of suspension.
6. On 15 December 2020, the matter came before the Recorder Burns in this Court when His Honour imposed a sentence of 28 days’ custody therefore activating the earlier suspended sentences.
7. The matter came before the Court again on 21 October 2021, almost a year since the last time it had come before the Court. On that occasion, HH Judge Tucker made a detailed order recording the fact that the defendant had agreed to engage with Change Grow Live (“CGL”), to try to address the problems he was having with alcohol. Her Honour also noted that the defendant had already served three days in custody.
8. On that occasion, Her Honour imposed a sentence of 9 weeks and four days, suspended until the expiration of the injunction order. The condition of the suspended sentence is that he complied with the injunction order. The injunction was also amended in the following terms, imposing a positive requirement for the defendant to engage with the services of CGL until the expiration of the injunction order.
9. Also, it was ordered that as he had a working phone he was to contact Birmingham City Council without unreasonable delay if there were any issues with his engagement with CGL. There was also a further positive requirement to be supervised by Birmingham City Council to obtain four weekly updates from CGL in regard to the defendant’s engagement with the service.
10. As I say, on 22 January, the defendant was found in the garden of the property next to that which is occupied by Miss Eunice. He accepts that he was drunk when he was found in that location. On his behalf, by his solicitor, Mr Ricketts , I am told that he had been out socialising and that he tried to take a bus back to his home. I am told that he only paid a sufficient fare which enabled him to travel for five stops. I am told that the fifth stop was that which was outside the garden of the property neighbouring that of Miss Eunice. I am told that the defendant’s intention was to speak to the occupier of the neighbouring property, who he understood to be a taxi driver, who could perhaps take him the remainder of the journey home.
11. I expressed surprise that the defendant was unable to pay the additional bus fare but took the view that he could take a taxi instead. Upon his behalf, I was told that he would pay for the taxi when he got back to his home, that being where he had some money. The owner of the neighbouring property declined to give the defendant a lift in a taxi. He fell asleep in the back garden and was later found by the police in the circumstances I have already set out.
12. I therefore consider two matters:
(i) The sentence I should impose for what happened on Saturday, and;
(ii) Whether I should activate the custodial sentence, either in whole or in part, which was imposed by HHJ Tucker earlier in the course of these proceedings.
13. I remind myself, of course, of the Sentencing Guidelines which I have to apply when determining the question of sentence for the breach before me today. I have no doubt that I have to regard this as a deliberate breach. I cannot excuse the consumption of alcohol as a reason for a breach of the order. The defendant clearly knew the terms of the order, and, in being in the garden of the property next door, I conclude that he deliberately breached the order. I do not, I am afraid, accept what I have been told regarding taking of a bus, which only enabled a five stop journey and that journey quite coincidentally ending outside the property where the defendant was not meant to be.
14. Against that however, looking at the question of harm, I accept that there is no evidence of the defendant being in contact with Miss Younis, who is the person protected by the terms of the injunction. I am told that the defendant understood Miss Younis to be in custody. Whether that is the case or not is not clear to me, but, as I say, clearly, she was not contacted on this occasion. There is no evidence of that and therefore I can record this as Category 3 for the purposes of whether harm was caused or not.
15. I am afraid I conclude though, against that background, applying the breach guidelines, that for this breach, the custody threshold is passed. This is not the first time the matter has come before the Court and accordingly, I do conclude that the custodial threshold is passed.
16. I conclude that the correct sentence for this breach is a term of three weeks’ imprisonment. I make a reduction note of one third for the prompt admission of guilt made on the defendant’s behalf this morning, making a sentence of two week’s imprisonment for the breach before me today.
17. I conclude that there are no grounds for suspending the sentence. This is not the first time the matter has come before the Court and the defendant, in breach of the terms of the order made by HH Judge Tucker, has come before the Court just three months after Her Honour imposed the sentence.
18. I also need to conclude whether I should activate all or part of the sentence which was imposed by Her Honour. In so doing, I have to have regard, of course, also to the totality principle. It strikes me I should activate the sentence of HH Judge Tucker. I have regard to the fact that the defendant has tried to comply with the requirements of Her Honour’s order, namely attending CGL attendances, but it was a further term of the order that there be no further breaches of the injunction previously granted. I take the view that a period of two weeks’ imprisonment is appropriate by way of activation of the sentence imposed by HH Judge Tucker.
19. Standing back, I ask myself whether five weeks is a proportionate response to the breach before me today and also the breach of Her Honour’s order. I conclude it is. Therefore, I impose a sentence of 5 weeks’ custody which will be served immediately, seeing no ground as I do for suspending it.
20. It is important, Mr Johnstone, you understand the court orders are there to be complied with. I have not been impressed with what I have heard as to the reasons that you were in the property on Saturday, and for those reasons, I am imposing the sentence of 5 weeks’ imprisonment.
End of Judgment.