In the County Court sitting at Coventry
Case No: B00CV620
Monday, 5th October 2015
District Judge Bull
Whitefriars Housing Group
- Under the guidelines the court then has to take into account aggravating and mitigating factors, which are listed at some length in Annex B to the relevant guidelines. I am satisfied that I ought to take into account the following aggravating matters:
- The guidelines state that breach of an interim order or of a final order is equally serious. There are provisions in the guidelines relating to a breach which also constitutes another criminal offence. Those aspects of the guidelines are not relevant in this case because Mr Burbury, in committing these breaches, did not commit any other criminal offence.
- I have to take into account the original conduct that led to the making of the order, and that is a relevant consideration insofar as it indicates the level of harm caused and whether this was intended. I repeat what I have just said, that effectively there is a considerable degree of foreseeability in this case that those who are affected by the injunction will be put in fear by Mr Burbury’s presence in the area.
- At paragraph 13, the guidelines state that, ‘the assessment of the seriousness of an individual offence must take into account not only the harm actually caused by an offence, but also any harm that was intended or might foreseeably have been caused’. That, in the context of this case, seems to me to be important, because the harm that might foreseeably have been caused is that those who are stated in the application to be vulnerable to force and aggression and pressure from Mr Burbury might foreseeably have been caused alarm and distress and felt their vulnerability when they became aware of his presence in the area.
- The guidelines specifically state that there are two dimensions to the harm involved in breach of an ASBO. The breach itself may cause harassment, alarm or distress, which can reduce the quality of life in the community protected by the order, and the breach of the order also contravenes an order of the court, and that contravention of an order can undermine public confidence and the effective administration of justice.
- I remind myself from those guidelines that the main aim of sentencing for a breach of a court order is to achieve the purpose of the order. Therefore, the sentence for breach should primarily reflect the harassment, alarm or distress involved. The fact that behaviour constituted a breach of a court order is a secondary consideration. In addition, the sentence for breach must be commensurate with the seriousness of the offence, and therefore I should take into account culpability and harm and the degree to which the offender intended to breach the order. It is clear that in this case that there was an intention to breach. The degree to which the offender intended to cause the harm that resulted, or could have resulted, is also something that I have to take into account.
- I have already said, when I was asking Mr Burbury what he wanted to say before I dealt with the matter (he having declined to seek an adjournment for representation), that I take into account that he has admitted these matters. I also take into account the Sentencing Guidelines Council’s guidelines on sentencing for breach of Anti‑social Behaviour Orders. An Anti‑social Behaviour Order is not exactly the same thing as an injunction under this Act, but it is a very similar order. I am satisfied that those guidelines are something that I should take into account, and, indeed, in relation to the old Housing Act injunctions, there was specific authority that the court should take the guidelines into account.
- Mr Burbury said to me that, when the police gave the injunction to him, they said that he could not have another hour, but they were prepared to take him to collect his possessions, and, for the reasons I have already given, he did not take advantage of that offer. He also told me that he has lived all his life in the Willenhall area, (although his current home address is in Nuneaton), and that he was left by the police, effectively, at Coventry railway station with nothing. This situation arose however because of his unwillingness to let the police take him back into the area to collect his goods and chattels.
- I am asked by the Claimant to take into account that these are not technical breaches and that any failure to enforce the injunction, in effect, deprives those who are concerned about Mr Burbury in the relevant area of protection from him.
- I have been shown the places on the map where the defendant was and they are well within the relevant area, not right at the centre of it, but not right on the boundary of it either. There can be no doubt, and indeed the defendant accepts, that he knew he should not be in those places.
- The second breach which is before me today took place the following day at 10.10am in the morning. On that day, Police Constable Craig Simpson went to 57 James Croft in the excluded area, pushed the garden gate, and there he saw the defendant, who said, ‘This is bollocks’. That breach is also admitted by the defendant.
- The order was served on 26 September 2015 and came into force on that date. Just over a week later, on Sunday, 4 October, Police Community Support Officer Calendar saw the defendant within the excluded area when she was on foot patrol. He is alleged by her to have behaved furtively, and, effectively, to have attempted to avoid her. However, she caught up with him on foot patrol, and, in due course, identified him because she was familiar with him. She alleges that he said, ‘You were right’, as if to say, ‘You were right to follow; you have recognised me correctly’. That breach, in the document setting down the breaches alleged against the defendant, is set down in the form that the defendant was present in Tintagel Close, Willenhall, Coventry, at 12.50 on the afternoon of 4 October. That allegation is admitted, and has been specifically admitted today by Mr Burbury.
- At the time that the order was served, it was served by Police Sergeant Ashton personally, who stated that he went to some trouble to go through the order and explain it to Mr Burbury, and to make sure that Mr Burbury understood that he was not allowed to be in the relevant area. It is accepted by Mr Burbury – he has told the court so today – that the officer offered to take Mr Burbury into the Willenhall area at the time of service of the order to enable Mr Burbury to collect belongings that he may have had in the Willenhall area, but that Mr Burbury declined that offer because he did not want to take the police to places where he had been. He was given a copy of the map which defines the area from which he is excluded and taken to the railway station at Coventry so that he was in a position to travel away from the area. The officer says that Mr Burbury declined the offer to take him into Wilenhall to collect his belongings and said that he had nothing to collect. Mr Burbury says, as I have already stated, that he did not want to take advantage of the opportunity given to him by the officer because he did not want the police going with him to places that he had been to.
- As I have already stated, there was an opportunity in that order for Mr Burbury to apply to set aside or vary the order, but he did not do so. It seems to me that, in the absence of Mr Burbury having done so, I have to deal with these breaches – and I will come to the breaches that are admitted in a moment – on the basis that Whitefriars’ case is made out, that there are people in the relevant area who are in fear of Mr Burbury, and who are vulnerable, and do find themselves in fear of him and in fear that they will be threatened by him.
- It is relevant to give some background in relation to the reasons why the order was granted. Whitefriars’ case is that Mr Burbury is dealing in drugs on a significant scale in the relevant area and that his mode of operating is, effectively, to take over the houses of vulnerable individuals, who are dependent on drugs or alcohol, or are mentally ill, and threaten them so that he can deal in drugs on a sort of ‘pop-up’ basis from the relevant properties that he is alleged to have taken over. The gravamen of the case that Whitefriars brought against Mr Burbury, at the time the injunction was granted, was that there are a group of vulnerable people in the relevant area who live in fear of Mr Burbury because of the way in which he operates, to whom he has been violent, to whom he has been aggressive, and against whom he makes threats. For that reason, they sought the order which they obtained, excluding him from the Willenhall area.
- There was also an opportunity, set down in the without notice order, to apply to set aside, or vary, or discharge the order on 48 hours’ written notice. For whatever reason, Mr Burbury has not done that. Indeed, the order was served upon him as long ago as 26 September, two days after it had been granted and he has not applied to vary it or to set it aside.
- On 24 September of this year, His Honour Judge Gregory granted an injunction under the Anti-social Behaviour, Crime and Policing Act 2014 against Alex Burbury. That injunction was granted without notice to Mr Burbury, on the basis of a claim put before the court by the Whitefriars Housing Group. The injunction ordered, as far as is relevant for today’s proceedings, that Mr Burbury must, within one hour of being served with the order, be outside of that part of Willenhall, Coventry, which is edged red on the attached map, and having left that defined area, must not enter any part of that exclusion area at any time. The effect of the order was, within one hour of it being served, to exclude Mr Burbury from a substantial area of the environs of Coventry, known as the Willenhall area. The map clearly marked where he should not go. There were other provisions which do not concern me at present.
- That Mr Burbury is on bail for other offences in the relevant area;
- That Mr Burbury has failed to respond to warnings or concerns expressed by others about his behaviour in the form of this injunction;
- That the victims of the defendant’s behaviour, who were the people concern for whom gave rise to the original injunction, are vulnerable.
- I shall not go through the other aggravating factors. There are many but I do not regard any of them as relevant to this case.
- I then must take into account personal mitigation, and there seem to me to be two relevant factors in personal mitigation here.
- The first is that Mr Burbury has, as promptly as he could, admitted the breaches. He has not even troubled to take the opportunity to get legal representation when that opportunity was offered to him; he has just said that he wants to get on with the matter.
- The second is that I do not have any real doubt that Mr Burbury indeed probably had personal property to recover from the area and it may well be, on the balance of probabilities, that he was recovering that personal property. However, that does not take away from the seriousness of what he did, in the sense that he was given an opportunity to recover that property by being taken to the relevant premises by the police and did not do so, instead electing to use his own efforts to recover the property later in knowing breach of the injunction.
- In terms of the decision-making process that the relevant guidelines require me to go through, I have to first identify the relevant starting point from a tabulated set of circumstances. I am satisfied, bearing in mind that the guidelines tell me that I have to take into account the harm that might foreseeably have been caused by these breaches, that the starting point within those guidelines which I should take, is that serious harassment, alarm or distress was caused or was intended to be caused, in the sense that it was entirely foreseeable that it would be caused. That gives me a starting point of 26 weeks in custody and a threshold of two years in custody.
- I have to consider the relevant aggravating factors, of which there are few, and I have already outlined them. I also have to consider the mitigating factors and personal mitigation and I have to consider reduction of sentence given the admissions made by the defendant.
- I am satisfied that there would have been a need, albeit that he did not take the opportunity when first given, for Mr Burbury to recover his personal possessions. I am also satisfied that he should be given a very substantial discount from any sentence that I am going to pass, because he, as I have already stated, admitted these breaches at the first possible opportunity. However, I am also satisfied that the custody threshold is passed because of the seriousness of the harm there might be to those who were in the relevant area at the time that Mr Burbury chose to breach the injunction and go back into that area, given their vulnerability. I am also satisfied that, in sentencing for these two offences, it is right and appropriate that I should sentence consecutively, because the breaches were committed on successive days, after Mr Burbury knew that he had been seen on the first day by the Police Community Support Officer, and he went ahead. Even if he was not fully aware that he had been seen and identified on his first visit to the area, Mr Burbury was well aware on two successive days that he was in the area that he should not have been in.
- I am satisfied, given that there is no evidence that the defendant did actually threaten anybody or behave aggressively towards anybody, that I should pass a sentence at the bottom end of the period of custody that I regard as appropriate. It seems to me that, for the first offence, the appropriate period of custody is a sentence of 21 days in prison, and for the second offence, which I will pass consecutively, a period of 28 days in prison. That is a total of 49 days’ imprisonment.
- I will leave the order to be drawn up. There should also be an order, given that these are committal proceedings, for a transcript of what I have said to be prepared on an expedited basis at public expense.