Case Number: H03EC459
In the County Court at Clerkenwell and Shoreditch
12 October 2022
District Judge Jacobs
London Borough of Tower Hamlets
MR TEMPEST appeared on behalf of the CLAIMANT
NO APPEARANCE by or on behalf of THE DEFENDANT
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DISTRICT JUDGE JACOBS: This is a sentencing in respect of a finding of breach of an anti-social behaviour injunction. I dealt with the breach at a previous hearing, on 20 September 2022 and I ordered a copy of a transcript of my comments, which has been served on both parties. I am not, therefore, going to repeat what I said at that hearing, save to say that there is one allegation of breach which I have found proved: that was that on 24 July 2022, the Defendant was in possession of a crack pipe within a London Borough. This was a breach of paragraph four of the injunction order of 30 December 2021, which prohibited him from being in possession of any illegal substance or drug paraphernalia, in any London Borough; that specifically included crack pipes.
The Defendant did not attend the previous hearing before me and he has not attended today, despite the order for today having been served upon him (and I have seen the certificate of service) by the Defendant, along with the transcript from the previous hearing, which took place on 20 September 2022. I note that he did attend a hearing on 15 August 2022. He is, therefore, well‑aware of these proceedings, but has chosen not to participate in the most recent two hearings.
In terms of mitigating factors, therefore, the Defendant is not here to put forward any mitigation in his defence.
In terms of aggravating factors, I take into account the fact that this is the second breach for exactly the same thing. The Defendant was arrested on 19 March 2022, for possession of a crack pipe. He was brought before District Judge Manners on 21 March 2022, who ordered that sentencing be adjourned until December 2023, with a power to restore sentencing. This was, however, outside of her powers, insofar as a sentencing hearing did not take place and it is now outside the time requirement for so-doing, pursuant to Rule 65.47(3) of the Civil Procedure Rules. Whilst, therefore, District Judge Manners has not stated on her order expressly that she found that there had been a breach on 19 March 2022, it must be implicit in the fact that she adjourned sentencing that she accepted that there had been a breach. The allegation was, as I have said, identical really to the allegation before me today: it was possession of a crack pipe. Whilst obviously not sentencing for the breach on 19 March 2022, I take into account as an aggravating factor, in respect of the breach which took place on 24 July 2022, that the Defendant has previously been arrested and brought before this court and a finding of breach implicitly made for being in possession of a crack pipe.
Turning to the Breach Offences Definitive Guidelines, I remind myself that these are Guidelines that are set out for a court which has the power to impose a maximum of five years’ custody, whereas I only have the power to impose a maximum of two years’ custody. I have to look at the Guidelines, therefore, in that context.
I agree with what is submitted by Counsel for the Claimant, that the culpability level here is B, deliberate breach, falling between A and C, where A is a very serious or persistent breach and C is a minor breach, or a breach just short of reasonable excuse.
I agree that the level of harm is Category 3, “breach causes little or no harm or distress. Breach demonstrates a continuing risk of minor criminal and/or antisocial behaviour”. As Mr Tempest for the Claimant rightly points out, the real harm of the Defendant’s continued drug use is to himself, although, obviously, one has to look at that in the context of wider anti-social behaviour associated with drug use.
When I look, therefore, at the table in respect of sentencing, the starting point is a high-level community order, which I do not have the power to order. The category range is a low-level community order to twenty-six weeks’ custody.
Mr Tempest points out that there has been a lack of engagement in the court process by the Defendant and that is something which I take into account. I am not, however, going to issue a bench warrant in order to make the Defendant come to court today to be sentenced. If I was going to do that, then I should have set out a warning to that effect on the previous order, which I did not do, although the order did clearly contain a warning that he could be sentenced in his absence. It seems to me, however, that if an order says someone can be sentenced in their absence, then it is not appropriate to then effectively arrest them for not coming along.
In my view, the appropriate sentence to be imposed in respect of this offence, bearing in mind it is a clear breach of the order and it is a breach which is almost identical to a previous breach and the lack of any mitigating factors being put forward by the Defendant, who is not here, would be a custodial sentence of four weeks. I consider, however, that bearing in mind that there has been no previous penalty imposed in these proceedings and bearing in mind the low level of harm caused by this breach, that that sentence ought to be suspended. I will suspend it for the term of the injunction, which, I believe, is until 30 or 31 December 2023.
DISTRICT JUDGE JACOBS: Just a moment. Just bear with me, while I just fill out the paperwork.
MR TEMPEST: Madam, I don’t know if you did need the date. You weren’t sure if it was the 30th or the 31st. It was 30 December 2023.
DISTRICT JUDGE JACOBS: Thank you. Sorry, I just need to make sure I fill out the N79 correctly.
MR TEMPEST: Of course.
DISTRICT JUDGE JACOBS: The original order is 30 December 2021, is it not?
MR TEMPEST: Yes.
DISTRICT JUDGE JACOBS: So, I need to order that Mr Shahin Ahmed be committed for contempt to prison for a total period of four weeks. The order is suspended until 12pm on 30 December 2023 and will not be put in force if during that time, the contemnor, Mr Shahin Ahmed, complies with the terms of the injunction order, dated 30 December 2021. The Defendant has a right to appeal against this order and he does not require permission to appeal and that will be clear on the face of the order. For the avoidance of doubt, the original injunction order dated 30 December 2021 remains in force. As I have said, I am only suspending the four-week period of imprisonment on condition that Mr Ahmed complies with the terms of the injunction order dated 30 December 2021. That is the condition upon which I am suspending the sentence. It is obviously unfortunate that Mr Ahmed is not here, but there will be a copy of the transcript to be done at the public expense; that will be sent to him, which will set out exactly what I have ordered today. Obviously, if he does breach the injunction order, then he will be brought back in front of the court, not only to deal with any new breach, but also in respect of the breach for which I have sentenced today.
MR TEMPEST: Very good, madam.
DISTRICT JUDGE JACOBS: Is there anything else, Mr Tempest?
MR TEMPEST: Madam, costs are reserved.
DISTRICT JUDGE JACOBS: Yes.
MR TEMPEST: I apply for an order that the Defendant pay the Claimant’s costs and there is no schedule, so it would just be to be assessed in detail, if not agreed.
DISTRICT JUDGE JACOBS: Yes. Thank you. Anything else?
MR TEMPEST: Madam, I am assuming that you will be making some provision for personal service of the order by my client?
DISTRICT JUDGE JACOBS: Yes.
MR TEMPEST: And I wonder if it’s likely to be available today?
DISTRICT JUDGE JACOBS: I do not know whether it would be available today, or not.
MR TEMPEST: We’ll liaise with the office downstairs.
DISTRICT JUDGE JACOBS: Yes, but I will make an order for personal service by the Claimant on the Defendant of the orders that I have made today and of the transcript that I am going to order. And I will order that the personal service has to take effect within three days of receipt of the same. Anything else?
MR TEMPEST: No, thank you, madam.
DISTRICT JUDGE JACOBS: Thank you very much, Mr Tempest.
MR TEMPEST: Thank you.
DISTRICT JUDGE JACOBS: I am going to just stay in here and fill out all the paperwork.
MR TEMPEST: Very good. Thank you, madam.
End of hearing.