Sentencing remarks of DDJ Anderson: Optivo -v- Paul Boag

CivilSentencing Remarks

Case No G00ME110

In the County Court at Medway

and in the matter of an application for committal

2 August 2021

 

Before:

Deputy District Judge Anderson

Between:

Optivo

-v-

Paul Boag

  1. Mr. Boag, you are the subject of an anti-social behaviour injunction, made under Part 1 of the Antisocial Behaviour, Crime and Policing Act 2014 by District Judge Smith on 21 February 2020, on an application by Optivo (“the Order”).
  2. The Order was served on you in advance of a further hearing on 4 March 2020, at which District Judge Whitfield amended the Order to correct the name of the second respondent, Karl Natuzzi, but the prohibitions set out in the Order were not changed. You were present at that hearing and confirmed that you did not oppose the continuation of the Order.
  3. The duration of the Order was until 4 pm on 18 February 2022. A power of arrest was attached to paragraphs 1(a) to 1(f), 1(h), 1(i) and 1(j) of the Order.
  4. For the reasons given earlier today, I have found that you breached paragraphs 1(c) and 1(f) no fewer than 18 times between the date of the Order and 6 January 2021, when Optivo last updated the schedule of allegations upon which it relies in support of this application. You also breached paragraph 1(k) 16 times and the general prohibition against causing a housing related nuisance or annoyance twice.
  5. The principles concerning the objectives of sentencing are well-established, having been set out in the case of Hale -v- Tanner [2000] 1 WLR at page 2380H to 2381G, as approved by Lord Woolfe CJ in Robinson v Murray [2005] EWCA Civ 935. In that case, Hale LJ stated that:
    “there are three objectives to be considered: the first is punishment for breach of an order of the court; the second is to secure a future compliance with the courts order, if possible; and the third is rehabilitation which is a natural companion to the second objective.”
    I kept these objectives in mind when deciding on the appropriate sentence.
  6. The penalties available to me are an unconditional discharge, a fine of such amount
    as is appropriate and which you are able to pay, or committal to prison for a fixed
    term of up to 2 years, pursuant to section 14 of the Contempt of Court Act 1981.
  7. Section 230(2) of the Sentencing Act 2020 provide that I must not pass a custodial
    sentence unless I am of the opinion that the offence or combination of offences is so
    serious that imposing a fine (my only other option for a penalty) cannot be justified.
    In my view, a fine would not be an appropriate penalty in this case, for 2 reasons.
    Firstly, I find that, given the very significant number of breaches that have occurred,
    the custody threshold has been crossed. Secondly, you have already been
    brought before HHJ Sullivan on 4 January 2021, who found that you had breached
    the Order and imposed a fine on you, and yet despite that, you still proceeded to
    breach the Order again, on 5 and 6 January 2021. This satisfies me that imposing a
    further fine will not achieve the second sentencing objective of securing future
    compliance with the Order.
  8. Where the decision is made to impose a custodial sentence, then section 231(2) of
    the Sentencing Act 2020 provides that it must be for the shortest term (not exceeding
    the permitted maximum) that in my opinion is commensurate with the seriousness of
    the offence or combination of offences.
  9. In deciding whether the breaches I have found warrant custody and, if so, what length
    of sentence, I must apply the Sentencing Council Guidelines that apply to a breach
    of an anti-social behaviour injunction, following the case of Amicus Horizon Limited
    -v- Thorley [2012] EWCA Civ 817.
  10. In applying those guidelines, the first step is to consider the offence category by
    reference to your culpability and the harm you have caused.
  11. In terms of culpability, there are three categories:
    11.1. A – for very serious or persistent breach;
    11.2 B – for deliberate breach falling between categories A and C; and
    11.3 C – for minor breach or breach just short of reasonable excuse.
  12. In my judgment, given the sheer number of breaches I have found, your culpability
    falls within category A.
  13. Next, I must consider the level of harm you have caused by your actions, against
    three categories, namely:
    13.1 Category one, for a breach that cause very serious harm or distress or that
    demonstrate a continuing risk of antisocial behaviour;
    13.2 Category two for cases falling between categories one and three; and
    13.3 Category three, for a breach that cause little or no harm or distress, or which
    demonstrates a continuing risk of minor criminal and/or antisocial behaviour.
  14. Given the power of arrest attached to paragraphs 1(c) and 1(f) of the Order, which
    demonstrates a clear risk of harm should you breach these terms, I find that each
    breach of those paragraphs falls within category 1; and I find that all other breaches,
    whilst they are perhaps causing less harm and distress, should still fall within category
    1, given the repeated nature of the breaches which evidences a clear risk of
    continuing antisocial behaviour. I should add that I have in mind Ms. Ashton’s
    evidence that your behaviour drove her to self-harm and ultimately forced her out of
    her home. This demonstrates the harm caused by your conduct.
  15. Having determined the category, I must now decide on a sentence that falls within
    the category range provided by the Sentencing Council guidelines. For a case such
    as yours, where it is category A for culpability and category 1 for harm, the starting
    point is 2 years custody and the appropriate range is from 1 year to 4 years,
    depending on the aggravating and mitigating factors, although, as I have already said,
    the maximum sentence available for breach of the Order is 2 years.
  16. I have considered whether it would be appropriate to impose separate sentences for
    each of the breaches I have found, either to run concurrently or consecutively. In
    considering this point, I have taken into account the totality principle, which provides
    that it is usually impossible to come to a just and proportionate sentence for multiple
    offending simply by adding together notional single sentences. The guidance goes
    on to provide that it is necessary to address the offending behaviour, together with
    the factors personal to the offender as a whole, and that is the approach I’ve taken in
    reaching a decision about the appropriate length of sentence.
  17. Following the sentencing guidelines, I must now consider any mitigating and
    aggravating factors.
  18. Dealing first with mitigation, I note the submissions made by Ms. Hausdorff, both on
    4 June 2021 and today, about the fact you are of previous good character. She also
    advises me that there had been no further complaints made about your conduct by
    any residents at the property since 6 January 2021. She also noted the fact that I
    have found that Optivo did not come up to proof on 15 of the allegations made against
    you, although that has to be set against the fact that I found that 36 allegations were
    proved to the criminal standard.
  19. Ms. Hausdorff also argued that I should take into account whether Optivo had
    complied with its own policies in terms of safeguarding you, as a vulnerable
    person. She referred in particular to Optivo’s failure to provide you with the necessary
    support. I am not convinced by this submission, given the evidence of support set out
    in the correspondence passing between Vance Gilks, a Housing Officer employed by
    Optivo, and yourself, in August and September 2019, which includes reference to a
    discussion about how Optivo could support you with your “needs for your drug use,
    physical disability, health and wellbeing” (to quote from his letter dated 28 August
    2019). I therefore do not consider that there is any issue here that I ought to take
    into account when considering mitigation.
  20. All further submissions concerned whether any sentence I impose should be
    suspended, and I deal with those submissions later.
  21. Turning to any aggravating features, the matters I can take into account include
    whether the offence complained of is a further breach, following earlier breach
    proceedings; whether the breach was committed shortly after the Order was made
    and any history of disobedience of court orders. I have found that you have repeatedly
    breached the Order; you first did so within days of the Order being made; and you
    did so, twice, even after you had been brought before the Court on 4 January
    2021. These facts demonstrate a serious disregard for the Order and all amount to
    aggravating factors.
  22.  In light of these factors, I find that the appropriate sentence is 2 years imprisonment.
  23. The only question for me to consider now is whether that sentence should be
    suspended, under Rule 81.9(2) of the Civil Procedure Rules. In the Amicus case to
    which I referred earlier, Toulson LJ noted that often the first sentence for breaching
    an antisocial behaviour order when the custody threshold is passed is a suspended
    sentence. Further, in the case of Hale v Tanner, to which Ms. Hausdorff referred
    me, Hale LJ noted that suspension does not have to be the exception – “indeed, it is
    usually the first way of attempting to secure compliance with the Court’s order”.
  24. In considering this issue, I have taken into account the guidance to which
    Ms. Hausdorff referred me today, and the factors that govern whether it is appropriate
    to suspend a prison sentence. Whilst I find the third factor, concerning poor
    compliance with court orders is against you, I accept her submissions on the other
    factors, about the risk you pose to the public and also as to whether an appropriate
    punishment can only be achieved by imposing an immediate custodial sentence.
  25. I have also had regard to the fact that, whilst the Covid restrictions are being lifted, in
    the case of R v Manning [2020] EWCA Crim 592, the Court of Appeal has said that
    the current conditions in prisons represent a factor which can properly be taken into
    account in deciding whether to suspend a sentence.
  26. Thirdly, I have taken into account your disability and the fact that, whilst you require
    low-level support, that does include matters such as dressing, and to send you to
    prison would have a significantly greater impact on your well-being than for a person
    without your needs.
  27. I have also taken into account your mother’s ill-health and the support you have been
    giving her.
  28. Finally, I have had regard to the letter provided at the end of the hearing on 4 June
    2021, written by Mr. Beeching, who spoke to your character now that you have
    addressed your heroin addiction. I note Mr. Beeching is present in court today and I
    hope that, with his continued support, you will be able to stay clean and out of trouble.
  29. In light of all of these factors, I have decided to suspend your sentence but on the
    following terms: that you continue to comply with each and every paragraph of the
    Order, which will be extended for another year.
  30. In summary, I sentence you to 2 years imprisonment, suspended on condition that
    you obey the terms of the injunction granted on 21 February 2020, as amended on 4
    March 2020, the duration of which will be extended to 1 August 2022. This sentence
    is suspended until 1 August 2022 or further order of the court, whichever is earlier.
  31. Mr. Boag, to be clear, if you can comply with all terms of the Order from now on, you
    will not have to go to prison. But if you do breach any term of the Order, and that
    includes having any friends, girlfriends or other visitors in your flat after 7pm, then
    you will go to prison for 2 years. I note Ms. Hausdorff’s submissions that there have
    been no problems since Ms. Ashton left the property and I sincerely hope that is the
    case, so that your neighbours can enjoy their peaceful occupation of the property and
    you can avoid going to jail.