Case No. H70MK029
Luton County Court
28 July 2021
Her Honour Judge Bloom
Chief Constable of Thames Valley Police
PC Price appeared on behalf of the Applicant
Miss S Powell (Solicitor) appeared on behalf of the Respondent
1. This is a committal application. It was brought before me on a power of arrest but the police have been extremely efficient and have prepared a committal application which has been served on the defendant.
2. The defendant has been extremely fortunate to have an experienced solicitor able to assist him on the Duty Advice Scheme, who has also seen the committal application. Mr O’Donnell has agreed with his solicitor that he would like to proceed today. He has accepted the breach. The issue before me today has been what sentence should be passed.
3. The background to this matter is that an application for an injunction was obtained as recently as 7 July. On the original application the defendant was attending remotely by CVP, according to the documents, and at that point he was already in custody, and was attending either remotely from custody at that point.
4. An order was made on 7 July, with a power of arrest attached to it. That order prevented him, amongst other things, from going into the area, location, and vicinity of 17 Simpson Place, and there was an exclusion zone with a map attached, that was denoted in red, where he was not to go.
5. At that hearing, he was present by CVP, and therefore was fully aware of the terms of the injunction.
6. He was served at Bullingdon Prison on 12 July with a copy of the order, and there certainly has been no suggestion from him today that he was not in receipt of that order.
7. I am told by the police that they asked that it be printed out in colour so that he was fully able to see that the area was delineated in red.
8. He was in prison. He was released from prison on 15 July.
9. There was a return date to this Court yesterday when the injunction was made final. He chose not to attend that hearing.
10. Mr O’Donnell has told this Court that he is of no fixed abode, and when he came out of prison, he went to stay at 20 Simpson Place. This is next door to 17 Simpson Place, and plainly is in the vicinity of 17 Simpson Place. He was staying with a friend called Mr Richards.
11. The issue around 17 Simpson Place is that he has a partner called Miss Edwards. It is, I am told by the police, a violent relationship. Mr O’Donnell is violent towards Miss Edwards, particularly when he is intoxicated, or possibly only when he is intoxicated.
12. Most recently he was in front of the Magistrates’ Courts on 15 July, where he pleaded guilty to three offences, two of battery and one of common assault on Donna Edwards; and was sentenced to 12 weeks, wholly suspended for 15 months, along with alcohol treatment and a rehabilitation activity requirement.
13. He has admitted his guilt, and I take that into account that he has, to his credit, accepted that he was, when he was arrested this morning, in the vicinity of 17 Simpson Place. Whilst I acknowledge and accept his plea, it would have been difficult for him to dispute it. My understanding is the police had body cameras on and they indicated that he was at or near the address at the time they arrested him this morning.
14. PC Price has explained to me that Donna Edwards is not actually named on the order, either to prevent contact, or to prevent going within a certain distance of her, because she herself does not wish to be so named. In addition, I am told by the defendant they remain in a relationship together, despite the very serious injuries that she has suffered. In addition, the fear of the police, as a result of statements from people who know Donna Edwards, is that Mr O’Donnell will kill her one day, due to the violence that he exhibits when he is under the influence of alcohol. He has, in the past, not been willing to engage in alcohol recovery programmes but has indicated he would now be willing to engage in such a programme.
15. In mitigation, Miss Powell has been extremely clear and helpful. She has explained that, whilst he accepts that he was in breach, there was an element of confusion, as he understood that he was not allowed to go near to 17 Simpson Place, but he had not appreciated that meant he could not go near number 20. Hence, in fact, he was staying with Mr Richards, who is a friend of his, and he had nowhere else to go. His mother is not willing to have him to stay according to the police, due to his behaviour.
16. It is right, as Miss Powell says, there are no additional offences. The breach is a simple breach, in that he was in the area, and found in that location. In addition, it was Mr Richards, of Number 20, who called the police because somebody was kicking on his door, but he was clear when the police came that the person kicking on his door was not the defendant but was another party. Therefore, there were no other allegations against Mr O’Donnell in respect of his behaviour since he was released on 15 July, save that throughout that time he has been in the vicinity of 17 Simpson Place.
17. Miss Powell says that, in the circumstances, given that there are no other breaches, and that Miss Edwards has not requested an order to restrain contact between them, and they remain in a relationship, it would be unjust to commit him immediately, and the Court should consider other alternatives, in particular a suspended sentence, and that he is someone who needs the help and assistance of Probation.
18. I have in mind the Sentencing Council’s guidelines for breach of a criminal behaviour order. I bear in mind the starting point is different because in a criminal behaviour order, the maximum term that can be passed is five years’ custody, whereas in this Court the maximum period is two years’ custody, and therefore one has to scale down accordingly to reflect the difference in outcomes that are permissible in the Criminal Courts.
19. However, in determining the type of offence category, the Court considers, as far as culpability is concerned, is it a very serious breach which is Culpability A; is it a deliberate breach between Culpability A and C; and is it a minor breach or breach just short of reasonable excuse.
20. Pausing there, I am satisfied it is a deliberate breach. I take into account what Mr O’Donnell says but he was present at Court when the order was made on 7 July; he had a copy of the order; and Number 17 and Number 20 are next door to each other; and if the order says that, “You are not to be in the vicinity of Number 17”, even if he had not looked at the map, it must have been patently obvious to him that being at Number 20 was likely to be in breach of the Court order.
21. As far as harm is concerned, the level of harm has to be assessed by weighing up all the factors to determine the harm that has been caused or is at risk of being caused. In addition, the Court has to give weight to the original offence or activity for which the order was imposed, and the circumstances in which the breach arose.
22. Category 1 is that the breach causes very serious harm or distress, or the breach demonstrates a continuing risk of serious criminal and/or anti-social behaviour. Category 2 are cases falling between this category and the lowest category. The lowest category is where it causes little or no harm or distress; demonstrates a continuing risk of minor criminal and/or anti-social behaviour.
23. In this instance, as far as the harm is concerned, the original injunction was designed to try to stop this defendant from causing damage or physical damage or bad behaviour, in the vicinity of two addresses where Miss Edwards lives, to try and minimise the opportunity for there to be contact with them, for her own protection, whether she wished to be named as a party or otherwise.
24. I take account of what Miss Powell says regarding the anomaly, that there is no restraining order in the Magistrates’ Courts, or this Court, that names Miss Edwards. However, the purpose of the order, as I am told by the police, was very much to seek to protect this lady from the batteries and common assault which the defendant had pleaded guilty to, and to reduce the possibility of contact between them when he was under the influence of alcohol.
25. I take into account that, on the occasion we are concerned with, he was not in fact doing anything himself wrong, and that the police appeared to have been called because of third party actions. However, he did run off and hide. He knew, therefore, that what he was doing, or where he was, was likely to be a problem.
26. I am satisfied that this is a Category 2 matter; that it falls somewhere between the two other categories; and the breach demonstrates, a continuing risk of more than minor, and possibly serious criminal and/or anti-social behaviour; and it is at the top of Category 2.
27. What is of particular concern in this case, in my view, is that the order had only been made on 7 July; he was only released from prison on 15 July; and he was back at this Court on 28 July, today. That is a remarkably quick breach. Within two weeks of being released from prison, he is in court for a breach, and acknowledges that, in fact, since he was released from prison, he has been breaching the order on a daily basis by staying with Mr Richards, because that is inside the exclusion zone.
28. I, therefore, consider it to be a deliberate breach; Culpability B; and that the harm to be Category 2. The starting point is therefore 12 weeks’ custody and the category range is a medium-level community order, (which I cannot impose) to one year’s custody. However, the starting point would be 12 weeks’ custody.
29. I do not consider that that would be an appropriate sentence in this case. However, I have considered whether there are other aggravating factors. The breach was committed very soon after it was made; it targeted the person who was meant to be protected. I have considered whether there was a genuine misunderstanding of the terms of the order. The very fact that Mr O’Donnell was hiding suggests that he fully understood that he was in breach of the order.
30. I obviously take account of the guilty plea, which means that the sentence should take that into account.
31. With all that in mind, my view is that, in this case, the proper sentence would be 28 days in prison. I have considered whether to suspend it. I am not going to suspend it in this instance. Mr O’Donnell must understand that, just because it is a civil order, it does have teeth; he will be in trouble if he breaches it; he will go to prison if he breaches it; and the sentences will get ever larger if he continues to breach them.
32. It is completely unacceptable for somebody to be in Court on 7 July, be released on 15 July, and be in breach immediately, and stay in breach until he is arrested on 28 July. For those reasons, in my view, the proper sentence is an immediate custodial sentence of 28 days.