Case No: H00WV066
In Walsall County Court
2 June 2021
District Judge Thomas
Wolverhampton City Council
– And –
Donovan Paul Miller
1. THE DISTRICT JUDGE: Today I have presided over the contested hearing in which it is alleged that the Defendant has committed two breaches of an injunction made on 2 March 2021.
2. The nature of that injunction, very broadly, was to protect Rachel Davies and members of her family, from the conduct of the defendant, it being alleged that he is persistently abusive towards her. The injunction also covers the conduct of his partner, Tina Clarke.
3. As of today, the injunction has been made on a interim basis. The basis of the injunction is contested and I am told that in July of this year there is to be a case management conference at which directions will be given for the final contested hearing. Accordingly, and I say this for the benefit of the defendant, whilst the injunction is in existence and continues to run, the court has yet to determined whether the allegations that led to the injunction being made are true.
4. That determination however, is an entirely separate set of proceedings to the matter that I must determine today. I am determining whether or not there has been two breaches of the interim injunction on 21 April of this year, both in the morning and both involving the conduct of only Mr Miller towards Ms Davies.
5. I do not for the purposes of my judgment propose to recite in detail the exact nature of those alleged breaches, suffice to say that there is a very short clip of CCTV and an audio recording, both of which I will come to in due course. But very broadly it is alleged that Mr Miller deliberately blocked in Ms Davies or at least pulled alongside her whilst she was in her car and was abusive towards her and then continued to be abusive when she got out of her vehicle and went into her house. The hearing today, as I say, is just to determine those two alleged breaches.
6. By way of background it is uncontentious to say that Ms Davies and Mr Miller live next door to each other in Lauderdale Gardens in Bushbury. These are premises which are owned and managed by the claimant or the applicant in this case, Wolverhampton City Council. The hearing today follows the defendant’s arrest, albeit some time after 21 April, indeed, he was not brought before the court until the 5 May. It was adjourned on that occasion to allow the defendant to obtain legal representation.
7. I have already broadly set out the alleged breaches. The nature of the abusive language or threatening and offensive language is what I would describe as name-calling and cat-calling or taunting. There is a audio clip which is six minutes long, of which four minutes are relevant, which was recorded by Mr Davies, Ms Davies’s son, and also a short CCTV clip which also has with it some sound. It is really that evidence which is pivotal in this case.
8. It has been a short hearing lasting (taking out legal argument) a few hours during today and so for that reason I do not propose to recite in any great detail the evidence that I have heard. Of course, I approach the matter having reminded myself of the standard and burden of proof. Although this is a matter in the county court, the burden of proof, (in other words the level to which the court has to be satisfied to) is beyond reasonable doubt, that is to say I must be sure – and the party that bears that burden is, of course, the claimant who seeks to discharge that burden by calling the witnesses and putting before the court the evidence that it has.
9. I have referred to the audio evidence and the CCTV evidence. I have also heard the oral evidence of Ms Davies and her son, and I have also heard the evidence of the defendant and his partner.
10. In relation to all oral evidence that I have heard, I always take into account to some extent the passage of time and the fact that impressions and memories of witnesses can be slightly altered or faded.
11. Before turning to what I make of the evidence, it may assist if I set out my general impression of the witnesses themselves. Ms Davies I found to be an honest witness. I did not form the impression rather that she was lying or attempting to mislead the court. She had made a number of statements going back over a period of time and, starting with the police statement that she made back in May, those statements were all consistent with each other. In giving her evidence she was keen to convey her recollection of what happened, and under cross-examination she remained consistent, not only in what she said, but what she had put into her statement. It was not, and it is a point that has been raised by claimant’s counsel, put to her that she was not there when the audio recording taken by her son was made, and that is something that I will return to in due course.
12. I heard from Mr Davies – her son. He was in my view a young and earnest witness. His evidence really was simply to confirm that he had taken the audio recording. He said himself that he did not really look out of the window. He was not watching what was going on and was distracted doing other things. But to me that admission, demonstrated he was not embellishing his evidence, and this only confirmed his honesty and reliability namely that he said, “I didn’t see. I simply took the recording.”
13. I then heard from the defendant. I noted that the Order of the 5 May invited him to provide a statement of his evidence but ordered him to provide in statement form any evidence from a witness if their evidence was to be heard without the permission of the court. Despite that order being made, he called his partner, whose evidence I did admit, but it is right to say that the court and the claimant had no notice of what she was going to say and indeed, had no notice of who the witness was until she was called. That said,I think it would be fairly obvious to the Claimant who the witness was going to be. It is however worthy of noting that she said that despite not submitting a statement she had nevertheless gone to the solicitors, discussed the Claimant’s evidence, looked at the CCTV and heard the audio evidence. But I do not speculate as to why it is that she did not produce a witness statement. (Of the issue of speculation, of course I remind myself that I decide the case on the evidence as I have heard and I do not speculate about what might have been said.)
14. When considering the Defendant’s partner and the evidence she gave I do accept the points that were raised by the claimant in relation to this evidence which is was questionable for a number of reasons. Firstly, she was able to give very precise evidence, having never committed into writing her recollection of that day. This was on her own account, a routine day and there was nothing about it particularly to stick in her mind, particularly as the defendant was not arrested until some weeks later.
15. She is also the co-defendant in the other proceedings in relation to the breach proceedings, and she is of course the defendant’s partner. Therefore, it cannot be said that she is independent – indeed she has a vested interest in supporting the Defendant. Given all of those factors it is, in my view, indeed likely, that her evidence would be swayed by her husband and it is capable of being tainted. Therefore, I place little if any weight upon it. That said, it is perhaps curious that her evidence is at odds in some fundamental parts with that of her husband. For example, the defendant explained that he was laughing on the audio recording as he was on the phone to his brother and they were laughing about the pigeon in their yard. He did not and never did mention anything to do with the bird rolling over and being incapable of eating rice, which he and his wife had thrown down for it. That evidence only came from the defendant’s wife. In my view, given that the defendant’s whole premise that the audio recording is him and about a pigeon, it strikes me as odd that that piece of evidence would be completely missed out by the defendant.
16. For completeness I turn to the Defendant himself. I found him to be argumentative and contradictory. On several occasions throughout giving his evidence, he changed what he said subtly when confronted with other evidence, such as the audio recordings and CCTV which were at odds with what he was saying.
17. That said of course the most salient evidence was the video footage and the audio evidence. There is no dispute, and it certainly has not been put, that any of it is not applicable to what happened on the day in question. What the court is effectively being asked to do by both sides, is to interpret what it demonstrates. The CCTV is, I accept, short footage lasting a matter of seconds. It shows the defendant in the middle of the road next to Ms Davies, who is in the layby to his left. There is a parked car to the right of the defendant and his evidence was that he was waiting to allow an oncoming vehicle to reverse back so that he could pull into his drive. That footage has some audio, which shows, or rather you can hear, the defendant laughing loudly. Of course, the claimant says that that was at Ms Davies in a mocking and intimidating way; the defendant says he was talking to his brother. The further point that the claimant makes is that the audio only starts when the defendant pulls next to Ms Davies and not before and that is, it is asserted, not coincidental.
18. I have considered that footage with care. The Claimant invites the Court to note that the defendant is so loud that he can be heard on the CCTV camera, notwithstanding that it appears to be affixed to the house which is quite some feet away from where these vehicles were. The Claimant also makes the point that given the injunction, would it not have been better and more prudent for the defendant to park or wait further back?
19. The defendant of course says it is just coincidental that he is next to Ms Davies when he starts laughing on the phone and he is just having a conversation with his brother, but there is no evidence to support or to affirm that this conversation is taking place at the same time.
20. Both of those explanations could be applicable. I of course have to apply the standard and burden of proof. In my view, it boils down to what view the court takes of the CCTV. In my view, having seen that CCTV, I do not accept the defendant’s explanation. I take the view that, if the defendant were indeed waiting for an oncoming car to reverse, he would not have stopped where he did, but rather could and would have stopped further back. He is laughing to such an extent that, as I say, it is picked up by the CCTV camera on the house, and as I say, that laughing only commences when he reaches Ms Davies. The nature and manner of the laughing does not, in my view, support his assertion that this is a harmless conversation with his brother not least due to its taunting nature.
21. There is the then the audio footage. I accept that this is not the clearest. There is obviously a female voice as well as a males, but you can hear certain words. You can clearly hear the word “pregnant” several times and laughing. The defendant says that this was part of the conversation with his brother and it was a conversation about a pigeon which had been in the garden for a few days and which was so fat that it looked pregnant, hence the reference to “egg”. Of course that is in contrast to what the defendant’s wife said, which is that it is the two of them having a laugh about the fact that the pigeon is as large as a chicken and was falling over because it was not eating the rice that they had put down for it.
22. The recording is four minutes long. The words “egg” and “pregnant” are heard, and indeed the word “pregnant” is heard several times, as is reference to “three years”. You can then hear quite clearly a vehicle driving off. The defendant and his partner both say that Ms Davies is not present throughout. Of course, Ms Davies’ evidence was that not only was she present, but this was being directed at her and not at any pigeon. It was not put to her in cross examination that she had in fact left prior the words on the audio being spoken and I am of the view that those words are aimed at her as she is leaving her house but then returning to collect something and then eventually leaving – at this point the words and laughing stop.
23. It has been put by the defence that the phrase, “You look pregnant”, which is said a number of times, is in fact the defendant saying “it” or “him” or “yous”, I reject that. Having listened again with care to the audio recording, in my view the defendant is quite clearly saying “You look pregnant. You look like you’re pregnant for three years”. Accompanying that is of course the laughing, and I reject the assertion that these references were not aimed at Ms Davies but being aimed at a pigeon. I am satisfied beyond reasonable doubt that she was present and that these words referred to her. This is in combination with the laughing which can be heard. It is pronounced and it is sustained and, in my view, it is of a taunting nature. I do not accept that it reflects in any way a laughing conversation about a pigeon. If indeed it was a conversation about a pigeon after Ms Davies left, it begs the question why Mr Davies, her son, felt compelled to get his phone out and record what was being said. The phrase used by Counsel in this hearing was “maniacal laughing” and that is an apt description for what can be heard.
24. For those reasons, applying the appropriate standard and burden of proof, I find that the allegations are made out. The audio and the CCTV footage support the account provided by Ms Davies and, in my view, are not capable of explanation in the way that the defendant states. I am satisfied, therefore, beyond reasonable doubt, that the defendant has breached the injunction in the manner described.
(After further submissions)
25. I have considered with care the submissions that have been made and of course I am obliged to consider the Sentencing Council’s Guidelines. I have considered them in light of the new guidance, which I think is yet to come into force, but I have been referred to it and I think it is only right that I have looked at it. I have first of all to consider where these offences fall in relation to culpability and then harm. The lowest level of culpability which I am invited to apply on behalf of the defendant, is a minor breach or a breach just short of a reasonable excuse.
26. In my view, these offences, whilst certainly not the most serious, were deliberate and they were, to some extent, sustained. They were breaches committed whilst Ms Davies was in her car and whilst she was walking to and from her house. In my view, those are not minor breaches or breaches just short of a reasonable excuse, but neither are they very serious or persistent, so in my view they fall into culpability B, which is a deliberate breach, which I accept they were, falling between A and C.
27. I then have to go on to consider the harm and I am mindful of the fact that Ms Davies’s evidence, and in fact I was struck by it, was that she said she often did not leave her house because of the defendant, and when she saw him, and indeed on this occasion, she activated the CCTV via her mobile phone which she carried with her – a system she had set up because of the Defendant’s conduct. It cannot be said that these breaches caused little or no harm or distress. Indeed, her distress and dismay at what happened that day is set out in her statement. It is not a continuing risk of minor criminal antisocial behaviour in my view, but equally it is not very serious harm or distress. So in my view again it is category 2.
28. Therefore, the starting point is one of 12 weeks’ custody. I am mindful, of course, that the latest guidance which is yet to be in force says one month, but it is a starting point of 12 weeks, with a sentencing range of a community order to one year. Of course, this being the county court, I do not have the power to impose a community order, I can either impose a discharge, a fine or custody.
29. I have to then go on to consider the aggravating features. I think it is indeed an aggravating feature that these offences were committed so shortly after the order was made and specifically against somebody who was named in the order and who the order was designed to protect. Those are aggravating features. There is no reduction for a guilty plea, or in this case indication. We have had a full hearing at which the witnesses and indeed Ms Davies has been required to give evidence.
30. I have heard the mitigation that has been advanced on behalf of the defendant. He is not working. He lives with his partner and four children. He has been living there for several years. I say this for the benefit of the defendant and his partner, I do not include anything in relation to the injunction proceedings. Those are entirely separate matters. I have taken nothing into account in relation to the background. I approach this on the basis that this was a court order that was made and it is a court order that has been breached.
31. I am mindful, of course, of the fact the reason why there are breach proceedings, they are to enforce court orders, to punish breaches and to, where possible, produce rehabilitation of the defendant.
32. With all that in mind, my first question that I have asked myself is whether or not these offences cross the custody threshold. Of course the starting point is one of 12 weeks and I find in all the circumstances of this case, and particularly in light of the aggravating features, that it does but I reduce that term from 12 weeks starting point to 8 weeks.
33. I impose, therefore, a custodial sentence of 8 weeks’ custody in respect of each breach. I have to consider the totality principle and accordingly that sentences will run concurrent to each other and I also note the fact that the breaches occurred one after the other within a short time frame. Therefore the total is one of eight weeks.
34. I have then gone on to consider whether or not that sentence should be suspended. I have been careful not to double account, so the length of the sentence I have imposed reflects the number of the breaches and reflects the fact that they were committed so soon after the offence and at somebody designed to be protected by the injunction.
35. But in terms of the suspension, I have considered the nature of these offences namely that they were committed at the home of Ms Davies, that the defendant lives next door and that her home should be a place of sanctuary where she need not be harassed. In my view, no-one should live under those conditions. The offences were distressing and, in my view, they were designed to do be, they of a personal and taunting nature – the defendant deliberately blocked Ms Davies in when she was on the road in her car, and then again when she returned to her house. This was, in my view, sustained and deliberate.
36. In those circumstances, taking all that into account, I do not think it appropriate to suspend the sentence. I think that the appropriate sentence in the circumstances after the hearing, is one of 8 weeks immediate custody which will be in respect of each offence to be served concurrent.
37. Mr Miller, will you please stand. Mr Miller, the sentence that I am imposing on you is one of 8 weeks immediate custodial sentence in respect of each breach. Those sentences will be served concurrently, that means to say that they will run alongside each other – the total sentence is one of 8 weeks. You will serve half of that, so you will be in prison for four weeks and then you will be released on licence. Those four weeks will be less time served when you were arrested – this is the equivalent of two so it will be four weeks less two days. Upon your release, you will be on licence for the remainder of the term. What that means is, if you offend again during that period, you will be returned to prison to serve the remainder of your sentence.
38. I will also at this stage extend the period of the interim injunction to run for 12 months from today. That means that the injunction will now expire on 2 June 2022. It follows that once you are released from prison, if you breach the injunction again and you are brought back before the court, and any new breaches found proven you may be sentenced again to custody. Can I say this, that any future breaches — it is important you listen and I explain — it is important that you understand that if you are found to have breached the injunction again in the future, it is likely that a court will impose a further sentence which may be aggravated by the fact that these breaches have been found proven and resulted in a custodial sentence.
39. You may appeal my decision. No permission is required to appeal in these circumstances and you may also make an application to purge your contempt pursuant to CPR 81.31.