Court of Appeal cuts sentence for breach of anti-social behaviour injunction

The Court of Appeal has ruled that the sentence imposed on a defendant for breaching the terms of an anti-social behaviour injunction, was manifestly excessive.

In Gill v Birmingham City Council [2016] EWCA Civ 608 the appellant had been sentenced by Her Honour Judge Wall to 14 months and 23 days imprisonment for breaching an ASBI dated 29 July 2014.

The appellant and his former partner, a tenant of the city council, had a child together from a previous relationship. Under the terms of the ASBI Gill was required not to:

“(1) assault, harass, intimidate, pester, threaten or use violence against [his former partner]

(2) communicate by any means whatsoever verbally or otherwise with [his former partner], including but not limited to by telephone, text message, email, facebook or any other social networking site, except through a solicitor or social worker for the purpose of arranging contact with their son.

(3) … enter the area outlined in red on the map attached, (which shows [his former partner’s] property at the centre of a wider exclusion zone).

(4) enter Bath Row, Edgbaston."

Prior to the hearing on 12 February 2016, there had been three previous committal orders made against the appellant.

The application for committal before HHJ Wall involved seven alleged breaches of the ASBI. The judge found all of the breaches proved. Gill appealed.

Lady Justice Gloster said she was in no doubt that, in the circumstances of the case, there was no basis for the court to go behind the findings of fact made by HHJ Wall.

“Contrary to the appellant's submissions, she carefully directed herself as to the criminal standard of proof and properly addressed the submissions and evidence presented by the appellant in relation to what he said was the unreliability of [the former partner's] evidence,” Gloster LJ added.

“It is clear from the judge's careful consideration of the evidence relating to each of the alleged breaches that she had well in mind the arguments presented by the appellant's in his defence. In my judgment, she was on the material before her, including the past history of the appellant's conduct, entitled to reach the conclusion which she did, namely that all of the individual breaches had been proved.”

The Court of Appeal judge agreed with counsel for Birmingham that HHJ Wall was clearly entitled to have regard to the following factors not only by reference to the definitive guidelines produced by the Sentencing Guidelines Council in relation to breach of Anti-Social Behaviour Orders, but also in her general consideration of the case. These factors were:

"i) the fact that there had been seven breaches of the order;

ii) the fact that six of the breaches related to the appellant visiting [his former partner’s] address late at night or in the early hours of the morning;

iii) the seriousness of the breaches, in particular that committed on 7 January 2016, when there was a threat of violence and damage to property;

iv) the vulnerability of [the former partner] and the impact that the breaches had on her;

v) that four of the breaches took place whilst the appellant was on bail for breach of the ASBI demonstrating ‘a total disregard of court orders’;

vi) that there had already been three previous committal orders against the appellant."

Lady Justice Gloster concluded, however, that "despite these serious features of the case against the appellant", she considered that, taking all the circumstances into account, a sentence of 14 months 23 days was in fact manifestly excessive.

The Court of Appeal judge said: “What the judge in my view failed to do was to take into account:

i) the fact that the appellant had very properly pleaded guilty in the Magistrates Court to the two most serious offences relating to the events of 7 January 2016;

ii) and that on any basis the appellant is a man who is deeply frustrated in his inability to see his son.”

Gloster LJ added that Gill should have been given more credit for his two guilty pleas “and that, taking into account the period of time the appellant had already spent on remand, and the fact that he had made genuine attempts to turn his life around and had obtained a job, which would be kept open for him on his release from prison, the correct sentence in this case is one of 12 months”.