Claim No: H00SN158
IN THE COUNTY COURT AT SWINDON
DISTRICT JUDGE HATVANY
SWINDON BOROUGH COUNCIL
- On 5 July 2021 this Court made an Injunction Order (‘the order’) under the Anti-social Behaviour, Crime and Policing Act 2014 (‘the Act’) against the Defendant. The Defendant did not attend the hearing. The Defendant was personally served with the order on 25 July 2021.
- The order contained a number of provisions, some of which have a power of arrest attached.
- On 9 August 2021 the Defendant received a 12-week custodial sentence for breaching provisions 2, 3 and 4 of the order. The sentence was suspended until 11:59pm on 9 August 2023 on condition that the Defendant complies with the order. The Defendant did not attend the hearing and was personally served with the committal order on 17 August 2021.
- On 29 September 2021 provision 2 of the order was varied by consent between the parties.
- On 16 November 2021 the Defendant was arrested on suspicion of having breached provisions 2 and 3 of the order.
- On 17 November 2021 the Defendant appeared at Court and was remanded without bail. At this hearing the Defendant indicated that she had a pre-booked appointment with Turning Point which would constitute a defence to the alleged breach of provision 2 of the order.
- The matter came back before the Court on 24 November 2021 with the Defendant due to appear via CVP from HMP/YOI Eastwood Park. The Defendant was displaying symptoms of COVID-19 and was unable to be produced. Accordingly and accordance with paragraph 7 of schedule 1 of the Act the Defendant was further remanded without bail.
- The matter further came back before the Court on 30 November 2021. In the intervening period the Claimant had obtained further evidence showing that the Defendant did not have a pre-booked appointment at Turning Point on 16 November 2021. However, it was noted that she did have one on 15 November 2021.
- The Claimant submitted that whilst this would normally, in its view, be mitigation rather than a defence, given the circumstances it was willing to withdraw the allegation in regards to the breach of provision 2 of the order if the Defendant was minded to admit the breach of provision 3.
- The Defendant indicated that she admitted the breach of provision 3 of the order, namely that “At approximately 3pm on Tuesday 16 November 2021 the Defendant, whilst in Temple Street, Swindon, behaved in a manner likely to cause alarm, harassment or distress contrary to provision 3 of the order of 5 July 2021 (as varied).” The Defendant apologised to the Court.
- This admission, in conjunction with the evidence before the Court, caused the Court to determine, beyond a reasonable doubt, that the Defendant was guilty of the alleged breach of the order.
- On that basis the Court proceeded to the question of sentencing.
- The Court heard from the Claimant, represented by Mr Bigwood, on the matter of sentence. In summary, the Claimant submitted that:
- Whilst the sentencing guidelines in relation to ASBO’s could form the starting point for any sentence there is, as set out in Willoughby v Solihull Metropolitan Borough Council  EWCA CIV 699 there is, in relation to further breaches of an order, scope to deviate from the guidelines.
- Applying the sentencing guidelines the breach resulted in an outcome of Level A Culpability and Category 1 Harm. This was due to the number of breaches of the order in a relatively short period of time since its service (4 breaches in less than 4 months) and the use of violence and causing alarm and distress to vulnerable people and the employees of a charitable organisation tasked with helping such persons.
- The starting point therefore was a 2-year custodial order and that such order ought not be suspended as a suspended custodial order was still in effect and had, in the Claimants submission, clearly not achieved the aim of ensuring compliance.
- There are 3 main considerations when sentencing a defendant:
- the first is punishment for breach of an order of the court;
- the second is to secure future compliance with the court’s orders if possible;
- the third is rehabilitation.
- The Defendant expressed remorse for her actions and explained the assistance she was seeking to deal with her addictions. The Defendant also indicated that the person against whom she had used violence had acted in a way so as to provoke her.
- The Court determined that the breach was at Level A Culpability but was on the verge between Category 1 and Category 2 Harm as, although there had been the use of violence, there was no serious harm resulting from that violence. The Court therefore determined, having considered the mitigation submitted by the Defendant that it would assess the breach as being at the level of Category 2 Harm.
- The Court was also mindful that the ASBO sentencing guidelines allowed for sentences of up to 5 years in custody and therefore they should be read in the context of the maximum available punishment for contempt of court being 2 years.
- The Court therefore determined that the starting point was a 12 month custodial sentence.
- The Claimant noted that this was the first hearing the Defendant had been able to attend following her arrest and that it was the first hearing whereby she was in possession of the relevant documents so as to be able to make a decision as to her liability. The Court therefore determined that the 12 month custodial sentence should be reduced by one third to take account of the Defendant’s admission of guilt at the first opportunity. Therefore the sentence would be reduced by 4 months.
- The Court also noted that the Defendant had been remanded without bail for a period of 13 days and was therefore entitled to a discount of 26 days from her sentence.
- The Claimant enquired whether, for ease of calculation, the sentence could be reduced to 7 months to take into account the discount for guilty plea and the reduction for time spent on remand. The Court concurred and ordered accordingly. The custodial sentence was to commence immediately.
- The Court also determined that there had been a breach of the suspended custodial sentence that was imposed on 9 August 2021 and ordered the activation of that sentence to run concurrently with the 7 months ordered for this breach.
- The Defendant was reminded that she would only serve half of the 7 month sentence.