Vivid Housing Limited -v- Drake

County CourtCommittal for Contempt of CourtJudgment

Case Number: J00PO713

In The County Court At Portsmouth

4 May 2023

Before:
District Judge Pain

Between:
Vivid Housing Limited
-v-
Drake

Judgment

MS PARKER appeared on behalf of the Claimant
MR SPARKES (Solicitor) appeared on behalf of the Defendant

JUDGMENT
(Approved)

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DJ PAIN:

  1. I give my ex tempore judgment in relation to the application for committal by the claimant of the defendant in respect of breaches of an injunction order made by this Court. This is my judgment in respect of the appropriate sentence that should be passed in respect of Mr Drake for the breaches which have been admitted by him today. Vivid Housing, who bring this application, have been represented, today, by Ms Parker of counsel, and Mr Drake has been represented by Mr Sparkes. I have heard submissions from both of them.
  2. I am going to start by setting out a brief history of Mr Drake’s tenancy and these injunction proceedings. Mr Drake was granted a tenancy of 5C, Shaftesbury Road in Southsea on 24 March 2016. He was the subject of a without-notice injunction obtained by the claimant on 9 September 2022. A final injunction was granted in his absence on 30 September 2022, when he did not attend an on-notice hearing. That final injunction was personally served on Mr Drake on 10 October 2022, and that order included a power of arrest in respect of paragraphs two to four. Mr Drake had, in fact, by that date, been charged with assault occasioning actual bodily harm on one of his neighbours, Mr Tighe, that occurring, it appears on 22 August 2022, and he had been bailed to live at his mother’s address.
  3. On 17 October 2022, Mr Drake was sentenced to a term of imprisonment for an offence, as I understand it, of possession of a bladed article. I clarified the matter with Ms Parker. I do not understand that that offence relates to this property or, indeed, to this tenancy at all, or these proceedings. The circumstances relating to Mr Drake’s subsequent release from custody and his return to the property have been set out in the affidavit of Abigail Merwood which is before me, and I have seen, dated 18 April 2022. Mr Drake was released from custody on 20 February 2023. On 21 February 2023, he was convicted of two counts of common assault against the Tighes and he was given a suspended sentence of imprisonment with a number of conditions and requirements. He eventually returned to his property on 16 March 2023.
  4. Mr Drake was arrested for breach of the injunction on 13 April 2023 and brought before this Court on 14 April 2023, appearing before District Judge Emerson. He was, on that occasion, remanded on bail to 20 April 2023 and, on the 18th, two days prior to that adjourned hearing, the claimant issued an application for committal to prison in respect of the allegations which are now in these proceedings before me. He was re-remanded by me on bail to today in order for Mr Drake to obtain legal advice and funding for those legal services.
  5. The schedule of allegations relied on by the claimant in their application runs to some 16 allegations relating to incidents between 16 March and 7 April 2023, and Mr Drake, today, through Mr Sparkes, has admitted a series of breaches of the injunction, and I shall read out the breaches as they are admitted: “On 26 March 2023, the defendant was smoking in the communal area of the Shaftesbury Road building”. That is the property in which his flat is located.
    “On 18 March, throughout the night and into the early hours, the defendant repeatedly slams the communal door in the building, comes and goes excessively, has excessive numbers of visitors who also cause noise nuisance and had the fire brigade force entry to his home at 00.42 hours as he locked himself out. These activities caused noise nuisance to the other residents. He was clearly intoxicated.
    20 March, throughout the early hours of the morning, the defendant came and went excessively to the building with visitors, causing undue noise disturbance to other residents. He was clearly intoxicated.

    On 21 March, the defendant slams the communal door to the building loudly, causing noise nuisance to others. The slamming caused disrepair to the door”.

    That particular allegation is admitted by Mr Drake insofar as it amounts to a breach of clause 11 of the injunction, that clause being, “Engaging in conduct that causes or is likely to cause a nuisance or annoyance to any person set out in paragraph 2(a) to (e)”, which names a number of individuals. It is not accepted that it was a breach of a different clause, clause six, relating to noise nuisance specifically.
  1. Mr Drake also admits that on 25 March 2023, he was smoking in the communal area of the building and he was also drinking alcohol and clearly highly intoxicated. Again, that is an admitted breach of both clause five and clause 11 in the injunction.
    “On 27 March 2023, the defendant returns to the building, clearly highly intoxicated, smoking in the communal area.
    On 28 March, at 10.46am, the defendant spoke to the claimant on the telephone. The defendant called his neighbours ‘retarded’ and threatens to ‘take the law into…’ his own ‘…hands’.
    On 28 March 2023, at 5.30 in the afternoon, the defendant made sounds which it is believed by the witnesses Patrick and Patricia Patten are ridiculing and discriminating against the Pattens and harassing them due to their disabilities. This caused them significant alarm and distress as well as emotional and psychological harm”.
    That was admitted as a breach of clause 10 relating to engaging in conduct that causes or is likely to cause harassment, alarm or distress but not a breach of clause two relating to the use or threat of violence towards any person as defined in that clause.
  2. A similar allegation is made in respect of later on the following evening on 29 March 2023 at 11.33pm where, again, sounds were made in those terms and, again, it is admitted by Mr Drake that this is a breach of clause 10 but not of clause two. Again, some seven minutes later, it seems, on the same occasion, the same allegation, and, again, there is an admission from Mr Drake that this is a breach of term 11 but he does not, on this occasion, consider it to be a breach of clauses two or 10:
    “On 29 March, the defendant returns to the building, smoking in the communal area.
    On 7 April, the defendant deliberately slammed the communal front door which had only just been repaired by the claimant and was also, once again, smoking in the communal area”.
    That particular allegation is admitted on the basis that it is a breach of clause five relating to smoking and 11 relating to causing or being likely to cause nuisance etc., but not in relation to an allegation of breach of terms six and 10 of the injunction. Finally, on 7 April, an admission that “The defendant was causing noise nuisance and smoking in the communal areas”. Again, an admitted breach of clauses five and 11.
  3. Those allegations, essentially, fall into a number of separate categories. The first is smoking in communal areas, the second, causing noise nuisance through the slamming of doors, and, thirdly, an individual threat made to the housing officer on 28 March 2023, where Mr Drake called his neighbours “retarded” and that he indicated that he said, would take the law into his own hands. The final category is that of making sounds on the Ring doorbell outside Mr and Mrs Patten’s house which ridiculed and discriminated against them and caused significant distress, that being on 28 and 29 March 2023.
  4. It should be noted that Mrs Patten has a learning difficulty. The nature of that difficulty has not been precisely identified before me today, but it appears that the nature of that disability is such as it was the subject of Mr Drake’s ridicule of her on 28 and 29 March 2023. The defendant, Mr Drake, clearly considered this to be a significant disability, calling, as he did, his neighbours “retarded”. Those are the matters for which Mr Drake falls to be sentenced today for his admitted breaches of the terms of this Court’s order. I have considered the affidavit of Ms Merwood to which I have referred, and, also, documents relating to the impact of the conduct of Mr Drake on Mr and Mrs Patten. I have also noted, as I have described, the admissions made by Mr Drake.
  5. I was reminded by Mr Sparkes of the sentencing objectives when dealing with breach of a court order as identified in the case of Lovett v Wigan Borough Council [2022] EWCA Civ 1631, and, in particular, in order of priority, the objectives in sentencing are:
    1) to ensure compliance with the order;
    2) punishment; and
    3) rehabilitation.
  6. There are a number of sentencing options which are available to me: an immediate custodial sentence, a custodial sentence that is suspended on terms, an unlimited fine, no order, or, indeed, as I am primarily invited by Mr Sparkes, to adjourn sentence in a similar way in which a Criminal Court might defer sentence for a period and, at the end of that period, sentence would then be considered. The correct approach to sentencing, in these cases, is set out in the case of Her Majesty’s Attorney General v Crosland [2021] UKSC 15. The first matter is to assess the seriousness of the breaches and this is in two respects: first of all, what is the culpability of the defendant, Mr Drake? Secondly, the harm that has been caused or intended or likely to be caused by him.
  7. I deal, first, with the question of Mr Drake’s culpability. Mr Sparkes, on behalf of Mr Drake, says that the culpability fits into Culpability B. When I refer to that, I refer, of course, to what I think has been described as “the grid”; the table which is designed to identify starting points for judges dealing with these matters by reference to the category of harm numbered 1 to 3 and the degree of culpability, labelled A, B and C. Taking each of those factors, the Court is invited to identify which combination of culpability and category is present in a particular case in order to identify the appropriate starting point and, also, the range of sentences from which there may be reasons to depart in either direction.
  8. Accordingly, Mr Sparkes says that the culpability, in this case, is B, that being, perhaps, not with great definition, a category between A and C. A is a very serious breach or persistent serious breaches and C is minor breaches, so, Mr Sparkes puts the matter in between those two other categories in the level of Culpability B. In contrast, counsel for the claimant says that the culpability of Mr Drake is higher, and that is it is in A. In this case, it is clear that there are a number of breaches which took place over a relatively short period of time. Each of those breaches is a deliberate act of Mr Drake. They were intended to cause harassment, alarm or distress to his neighbours. He should have been aware that that would be the effect. In isolation, some of these matters might not appear to be particularly serious breaches of the injunction or to cause particular levels of harassment, alarm or distress. Other admitted breaches carry a higher level of culpability, in my view such as making noises intending to ridicule his neighbours as he passes their Ring doorbell, no doubt, knowing that that will be recorded and transmitted to those inside.
  9. Having said that, I, nevertheless, accept that culpability, in this case, is in Category B. It is a broad category between minor breaches and a very serious or persistent serious breaches. It is, however, in my view, towards the top end of that category. The question, then, is what harm was caused or was intended or likely to be caused by this conduct? The parties are agreed that, in terms of harm, we are in Category 2, Category 2, being again, falling between Category 1 and 3. Category 1 is a breach causing very serious harm or distress and Category 3 being a breach which causes little or no harm or distress. It is clear that the conduct of Mr Drake has had a significant impact on his neighbours, particularly on Mr and Mrs Patten which I have seen from the statements provided by the witness statement from Victim Support, from Ms Ryall and the witness statement of Lisa Griffiths, both of which detail the effect that this conduct has had upon Mr and Mrs Patten. That includes them seeking counselling and wishing to move from the property in which they reside.
  1. In terms of the grid, I find, therefore, that this is a matter falling in square B2. This has, as its starting point, the imposition of a month in custody. It carries with it, nevertheless, a range of appropriate sentences between adjourning sentence and a sentence of three months’ imprisonment. I have heard from Mr Sparkes, and he invites me, primarily, to adjourn sentence in order to create a degree of opportunity for Mr Drake to demonstrate that he can improve and modify his behaviour. I do not consider that this is a case in which I should adjourn sentence.
  2. In terms of returning to the appropriate approach to sentencing in these cases, I, first, should consider whether I consider a financial penalty sufficient for these breaches, and I do not, because it seems to me that the starting point from which I am invited to start is the imposition of a period in custody. Then, I ask whether this is a contempt that is so serious that only a custodial sentence will suffice. Again, the grid provides me with a starting point of one month, and I can adjust that, and I take into account two matters: first, any aggravation in this case and, secondly, any mitigation. In terms of aggravation, there appears to have been a history of problems with neighbours, including the conviction for common assault for which Mr Drake was given a suspended sentence. There is, also, as I have accepted, a particularly vulnerable victim here who was caused harassment, alarm and distress, as admitted.
  3. In terms of mitigation, Mr Drake has, once he has received legal representation, made admissions, avoiding the need, therefore, for a full hearing, and avoiding the need for witnesses who have been affected by his behaviour to attend court in order to prove those allegations. However, I do not consider that there is any indication of remorse from Mr Drake beyond the making of those admissions. I accept, however, that he has had difficulty with addictions and is now trying to address those matters.
  4. In my view, these matters, the breaches of the injunction order are so serious that only a custodial sentence will suffice. I consider that the appropriate overall term would be a period of nine weeks. However, I have taken account of the early admissions which have been made and reduce that overall term to a period of six weeks. I would impose a period of six weeks’ imprisonment in respect of each breach relating to the ridiculing of the Pattens, to run concurrently to each other; a period of two weeks, on each noise-related breach to run concurrently to each other and to the six-week sentence; and no penalty in respect of the allegations relating to smoking in communal areas. The total sentence of imprisonment is therefore a period of six weeks. I consider that to be the shortest period of imprisonment which would properly reflect the seriousness of the contempt, in this case.
  5. I must finally ask the other question posed to me by Mr Sparkes, and that is whether I should suspend this sentence of imprisonment. Mr Sparkes says that I should suspend it. He points, primarily, to the first purpose of sentencing, and that is to ensure compliance with this order. There is an existing suspended sentence hanging over Mr Drake and Mr Sparkes also relies upon what he says is Mr Drake’s compliance with those conditions. I do consider, in light of those submissions, that there are grounds for suspending the sentence in this case. In my view, that would provide Mr Drake with an appropriate opportunity to show that he is capable of complying with this order and to alter his behaviour and conduct towards his neighbours.

    What I intend to do is to impose the order of imprisonment that I have set out but to suspend it on terms of compliance with the injunction order and to suspend it until what I understand to be the expiry of the order which, I think, is 25 February 2024.

End of Judgment.