May 7, 2020

Moat Homes LTD -v- Jessica Cook & Frankie Schock

Civil Judgment

Claim No:F01BR951

In the Bromley County Court

13 January 2020

4 March 2020

Before:

District Judge Brooks

Between:

Moat Homes LTD

-and-

Jessica Cook & Frankie Schock

MS A ATHILL appeared on behalf of the Claimant

The Defendants did not attend and were not represented

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JUDGMENT

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JUDGE BROOKS:

I am satisfied on the basis of what Ms Meyer says in her statement, confirmed by her oral evidence today, that those breaches have occurred – each of the breaches mentioned in her statement and in the Scott Schedule, which I have seen. I also rely upon and am satisfied by the evidence contained in Mr Pine’s statement that the breach, which he sets out, is also proven.
In the preamble to the order, I want to set out what you told me earlier on about the mother and Frankie Schock being in attendance and also what you said about her disappearing rather rapidly. I am satisfied that they were served with these proceedings, both Defendants, because the first Defendant’s mother turned up and Ms Schock turned up. So, they have been served in compliance with my order which allowed service by an alternative means.
Two things arise from that: One, there needs to be a sentencing hearing, that will not be today, so we need to bring that back for that. (Counsel’s mobile rings) I think it is listed for a hearing with a time estimate of half a day just in case they turn up and want to say things.
In terms of service upon them, when they were here when I dealt with them for the first breach, I gave them a leaflet, I am not sure if a copy was provided to your counsel.

MS ATHILL: I did notice it in the order. They were given a copy in relation to contempt of court.

JUDGE BROOKS:

If a further copy could be supplied to them and a letter written to them telling them that they are entitled to… I think they are still entitled to legal advice, if they wish to come along at the sentencing hearing, I suspect that they will not. I want to make sure that we do not miss out any procedural matters, that they are entitled to come along.
The second matter which arises is bearing in mind that there is a breach, or a number of breaches, that activates the suspended sentence which I made at the back end of last year. I have some ideas about how we deal with that but I am interested to hear what you have to say. I think it is either the police or potentially there is a bench warrant, but they need to be dealt with.

MS ATHILL: I have dealt with it recently in another court and that is what happened – they activated the sentence, I believe a warrant was then issued. I do not know what happened with that warrant but I can only assume it got passed on to the police and given to them when it was executed.

JUDGE BROOKS: Right.

MS ATHILL: I am afraid I do not know any more procedurally than that but I can confirm that that is what happened – a warrant was issued on activation of that suspended sentence. That might also assist if they were to be arrested and put into custody, it would help them come back to the court for the next hearing and deal with the sentencing of the future breaches.

JUDGE BROOKS: I would go slightly further than that, I think that is the only way that we are going to get them to court.

MS ATHILL: I would agree.

JUDGE BROOKS: Although I am not a bit surprised, had the mother still been here, would Frankie Schock have stayed around? I do not know.

MS ATHILL: No, I do not know. It might be then we were saying re service, we might then need to say if they are in custody, we will obviously serve them then.

JUDGE BROOKS:

Can you draft whatever needs to be drafted, I think probably the warrant. Can you check the procedure on that because I suspect if we just say to the police they need to be arrested, they will do nothing. They will need to have something – if it is a warrant, that can be drafted and that can be given by your client to the police, they can get them arrested and then carted off, together with the committal order from before saying that is now activated.
I think this order needs to say words to the effect that the suspended sentence is now activated. I think normally in relation to committal, we have to complete a form, but that form…

MS ATHILL: Yes, I do remember the Judge on the previous occasion was filling out a form that I had not previously seen and I do not know if this court has a copy of it.

JUDGE BROOKS: We do, they have not put it on this because I suspect they were not thinking that I was going to be doing this. Let me just see. I have never dealt with one where we are activating a suspended order. (Pause)

JUDGE BROOKS:

Also, in the order you need to say if they want to serve any evidence in relation to the sentencing, they can do that and they can turn up. (Pause) The forms I normally deal with are remand, they are not granted or bail granted. They do not deal with the activation of the suspended sentence.

JUDGE BROOKS: If you could look into that. I will give you my email address and you email in. I want to make sure that we get it right then the police can go off and find these people. (Email address supplied) I will not seek to ask you to send it in tomorrow because you have got some things you need to look at. Is there anything else you think needs to go into the order? If you think of anything else, add it and draw it to my attention and I will confirm whether that is okay or not.

MS ATHILL: Okay, I am very grateful.

JUDGE BROOKS: Anything else?

MSW ATHILL: No, thank you very much.

JUDGE BROOKS: Thank you, ladies,

MS A ATHILL appeared on behalf of the Claimant

The Defendants did not attend and were not represented

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JUDGMENT

(Re Sentencing)

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JUDGE BROOKS:

I have to sentence Ms Cook and Ms Schock for breaches of the injunction dated 20^th September 2019. Ms Cook and Ms Schock have not attended today, I am not surprised by that because they have failed to attend other hearings.
I checked with counsel at the outset to see whether they had been served, and she informed me that not only had the court served documents on the Defendants but also the Claimant had as well. I am satisfied that they have been notified of this hearing.
On 13^th January this year I found that Ms Cook was guilty of 14 breaches and Ms Schock of 10 breaches of the injunction. These are further breaches as the parties were both, of course, sentenced to two months imprisonment, suspended for 12 months, for breaching the injunction on 9^th October 2019. A date which is quite important because a lot of the breaches which I see today are after that date and they were, of course, in court on that day.
As these breaches were further breaches of the injunction, I activated the suspended sentence and listed this sentencing hearing for the breaches found proved on 13^th Today I am considering what sentences to impose on both Defendants.
There are three objectives when considering sentences: 1) One, punishment for the breach of an order of the court. In this regard, sentencing must be proportionate to the seriousness of the offences. This is determined by assessing the culpability of the Defendant on the level of harm the breach has caused or is at risk of being caused. 2) To secure future compliance with the court orders, if possible. 3) Rehabilitation of the Defendants. I suspect that is never going to happen, bearing in mind the Defendants which I have come across here.
I also take into account the Sentencing Guidelines concerning breaches of Antisocial Behaviour Orders, which Guidelines took effect on 1^st October 2018. These Guidelines provide a number of steps the court must take when sentencing in cases of this type. The first is to determine the offence category by assessing the culpability and harm.
Culpability: The Guidelines set out three levels, a), b) and c) – a) being very serious or persistent breaches; b) being deliberate breaches falling between levels a) and c); and level c) being minor or breaches just short of a reasonable excuse.
In my judgment, the correct assessment of culpability is level b) because the Defendants were aware of the injunction as they were served with it and also they committed further breaches after being sentenced on 9^th They were both in court on that day and have carried out further breaches. D1 did so on nine occasions and D2 did so on five occasions after that hearing.
Taking into account the antecedents of the Defendants, which I summarised last time, as failing to attend hearings, failing to surrender to custody, committing offences while on bail, failing to comply with community orders, breach of a conditional discharge, there is, in my judgment, a pattern of disregard for court orders.
Harm: I now assess the level of harm. I do this by weighing up all the factors of the case in determining the harm that has been caused or was at risk of being caused. I have also considered the original activity for which the order was imposed and the circumstances in which the breaches arose.
The Sentencing Guidelines provide three categories of harm: Category 1), Breach causes severe harm or distress. A breach demonstrates a continuing risk of serious criminal and/or antisocial behaviour. Category 2), Cases falling between categories 1 and 3. Category 3), Breach causes little or no harm.
I have re-read Ms Meyer’s statement. It confirms that the residents were subject to hearing the Defendants argue; shouting at D1’s mother to gain access to her home; drugs paraphernalia, i.e. methadone bottles being left in places where the Defendants were not supposed to be; the tenants being at risk of harm as the Defendants paid little regard for their safety, as they had to move out of their path or run the risk of being barged over; and D2 setting off a fire alarm which could not be shut off for an hour when the fire brigade attended, which took up their time which could have been better spent elsewhere. In addition, at least 30 tenants having to wait in public areas being concerned that there may have been an actual fire when in fact there was not.
In my judgment, the correct assessment of harm is as follows: Somewhere between categories 2) and 3).
Having assessed culpability and harm, the Sentencing Guidelines then provide the court with a starting point for the sentence and a range of available sentences above and below that starting point. In this case, I assess culpability as level b) and harm as somewhere between level 2) and 3). The Guidelines set a range of between 12 weeks to 12 months for these offences.
The Defendants have not attended today so I do not know even of any mitigating factors, save for their apparent drug addiction. I say apparent because drug paraphernalia has been found. I am not too sure what they are addicted to, it may be heroin, it may be something else – that is usually the case when someone takes methadone.
I also take into account the totality principle and have decided against making the Defendants serve the sentences that I am about to set out separately. In other words, all sentences will be concurrent.
I do take into account that the Defendants have undertaken persistent and flagrant breaches of the order, in my judgment, complete contempt for this court and the orders that it makes. Suitable sentences must, therefore, be imposed taking into account the culpability and harm that I have assessed.
What I am going to do now is to read from the schedule of allegations. I am not going to go through the allegations themselves, I am just going to call them Allegations 1) and so on.
For Allegation 1), which is relating to both Defendants: 14 days in prison, suspended for 12 months.
Allegation 2), again this is both Defendants: Again, the same sentence.
Allegation 3), again it is both Defendants: Again, the same sentence.
Allegation 4), they have already been sentenced for that. That was the one on 9^th October, which I dealt with.
Allegation 5), i.e. the day after they were sentenced: Two months custodial sentence, not suspended.
Allegation 6), three months custodial sentence for D1.
Allegation 7), three months for D1.

MS ASTHILL: Sorry sir, could I just ask you to repeat. So, 5) was two months custodial. 6) was…?

JUDGE BROOKS: 6) was three months. Sorry, I will go a bit slower. Sorry, Ms Asthill.

MS ASTHILL: Thank you.

JUDGE BROOKS:

6), three months custodial for D1.
7), same again for D1.
8), same again for D1.
9), three months for D2.
10), three months for D1.
11), three months for D1.
12), same again.
13), three months.
14) and 15), I think they are both guilty of 14) and 15), or is that D1? (Pause) Yes, both of them. 4 months.
So, they will run concurrently with the sentence which I passed on 9^th October.
I should comment that this order is put in place to protect D1’s mother and the other residents at this sheltered accommodation. Although the Housing Association have not had the assistance which they would normally get, save for someone who they are seeking to protect, such as the mother here, I think that they have acted proportionately and properly in taking the action which they have to stop this harassment and the difficulties which have been in place.
Various parties have had their identities protected because of their concern at being targeted by the Defendants and have, on occasion, been frightened, as I set out earlier on. I hope that these sentences which I now impose, once these Defendants are detained, will give them the protection which the court gave.