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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Amicus Horizon Ltd v Thorley [2012] EWCA Civ 817 (30 May 2012) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/817.html Cite as: [2012] EWCA Civ 817

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HASTINGS COUNTY COURT
(HIS HONOUR JUDGE HOLLIS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 May 2012

Lord Justice Toulson:

1. This is an appeal against a sentence of four months' imprisonment passed on the appellant on 3 Mary 2012 by HHJ Hollis in the Hastings County Court for breaches of an antisocial behaviour injunction. The injunction had been obtained in connection with possession proceedings brought against the appellant by Amicus Horizon Ltd and the committal application was made by Amicus. The judge dealt with the committal application at the same time as the trial of the possession action in which he gave judgment for possession.
2. It is an unhappy story. Amicus is a resident social landlord and the owner of sharehold accommodation for the not so young at Royal Terrace, St Leonards-on-Sea. In September 2008 the appellant became the tenant of one of the flats under an assured tenancy. He is aged 69. From April 2009 there were repeated complaints about his behaviour towards other residents, particularly female residents, and also to members of staff. In September 2010 Amicus issued possession proceedings alleging that he had behaved in a threatening and abusive way to residents and staff on various occasions. In due course the judge was to find that those complaints were well founded and they formed the basis of the possession order.
3. On 31 January 2012 the district judge made an interim antisocial behaviour injunction with a power of arrest, postponing final determination of the application for an injunction until the trial date. Plainly the purpose of this was for an order to provide an incentive to maintain calm until the trial of the action. On 1 March 2012 the appellant was arrested for breaches of the injunction alleged to have occurred on 29 February. The court adjourned the proceedings for those alleged breaches with the intention that those committal proceedings should be heard at the same time as the possession proceedings and the application for an injunction. The appellant was accordingly released on bail.
4. On 30 April 2012 the appellant was re-arrested in relation to two further allegations of breaches of the injunction. When the judge came to hear both the possession action and the committal applications the appellant maintained a denial of all allegations of antisocial behaviour. The judge found in favour of Amicus on the breaches leading to the issue of the proceedings. He also found to a criminal standard that the appellant was guilty of four breaches of the injunction. The first two arose out of a single incident on 29 February. The appellant entered the residents' lounge from which he had been barred (that was the first breach). When he was told to go out he swore and shouted threatening words (that was the second breach). The appellant was drunk at the time. He was unsteady on his feet and his words were slurred. For those breaches he was sentenced to two months' imprisonment and four months' imprisonment concurrent. The third breach occurred on 5 April 2012 when he swore at an elderly female resident as they were leaving a lift. For that he was sentenced to two months' imprisonment concurrent. The fourth breach occurred on 23 April 2012 when he swore and uttered threatening words to a member of the staff. She described the effect that it had on her in her statement in these words:

"I personally didn't feel threatened by James, probably because we were in a communal area where there were people about. But I would say had this happened either in my office or somewhere else I would have felt differently."

She described James's behaviour and language as abusive and foul. For that breach he was sentenced to four months' imprisonment concurrent.

5. In December 2008 the Sentencing Guidelines Council issued definitive guidelines for breaches of antisocial behaviour orders. Although those guidelines are directed at criminal proceedings, they are equally relevant when an antisocial behaviour order has been made by a civil court. Unfortunately, through no fault of his own, the judge did not have the benefit of being referred to them. The SGC recommends different sentencing bands according to the gravity of the harassment, alarm or distress, caused by the offender's conduct. For serious harassment the recommended starting point is 26 weeks' custody. For a lesser degree of harassment, alarm or distress, the recommended sentencing range is from a community order to 26 weeks' custody with a recommended starting point of six weeks' custody. For offences not involving actual harassment, alarm or distress, the recommendation is a community order.
6. It can be seen that the overall sentence passed for these breaches was towards the top of the range recommended for cases involving a lesser degree of harassment, alarm or distress. Overall I would judge that the conduct was at the lower end of that category and some of the breaches plainly did not fall into that category at all. For example, entering the residents' lounge having been barred from doing so plainly fell into the bottom category for which a sentence of two months' imprisonment is well outside the Sentencing Guidelines. There was an aggravating feature that the last two breaches were committed when he was on bail, and if a criminal court had been sentencing him for the same matters that might well have merited a consecutive sentence. However, the two sentences of four months' imprisonment -- one for shouting at residents when he was told to leave the lounge and the other for shouting threatening words at the member of staff who was not in fact intimidated or fearful as a result -- are significantly outside the Sentencing Guidelines.
7. In my judgment, although often the first sentence for breaching an antisocial behaviour order when the custody threshold is passed is a suspended sentence, there were legitimate grounds on which the judge could pass an immediate sentence. In particular, it was right for him to have regard to the past history and the aggravating feature of the final instance being committed while he was on bail. Realistically, he would have been aware that at the time when a possession order was made somebody who had behaved as offensively as this appellant had done in response to the previous orders of the court was liable to cause further stress and harassment, against which the residents were entitled to protection.
8. Accordingly in my judgment the offences, when viewed collectively, did pass the custody threshold and an immediate custodial sentence was merited. However, for the reasons which I have given I consider that the overall sentence of four months' imprisonment was excessive. I would substitute a total sentence of six weeks comprising six weeks for each of the two breaches for which he was sentenced to four months and two weeks for each of the offences to which he was sentenced to two months' imprisonment, to run concurrently from the date of his re-arrest at which time he was remanded in custody by the judge. I should add that Amicus have understandably not attended on the hearing of this appeal. Their purpose has been served by previous attendances at court and no doubt they did not wish to incur further funds in appearing before the court today. To that extent I would allow this appeal.

The Master of the Rolls:

9. I agree with what Toulson LJ has said and there is nothing I can usefully add.

Order: Appeal allowed