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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Birmingham City Council v Thornton [2016] EW Misc B2 (CC) (02 February 2016) URL: http://www.bailii.org/ew/cases/Misc/2016/B2.html Cite as: [2016] EW Misc B2 (CC)

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IN THE COUNTY COURT AT BIRMINGHAM

		The Priory Courts 33 Bull Street Birmingham B4 6DS
		2nd February 2016

HIS HONOUR JUDGE WORSTER:

1. This is listed before me this morning for sentencing. Michael Thornton is fifty-two. He has a serious alcohol problem and has had for some significant time. He has a record of previous convictions before the criminal courts. That record is an indicator of the role of drink in his behaviour, and of his inability to keep to the terms of court orders. I have read that record on previous occasions. There are a number of suspended sentences, offences on bail, and community orders not complied with. But it is a feature of that record that his offending is not of the most serious kind. The longest sentence imposed by the criminal courts is one of six-months. Normally he has been dealt with in the past by sentences measured in weeks.
2. He has been a tenant of the local authority for, I am told, thirty-two-years and has been at his current property 295 Groveley Lane in Northfield since 19^th of March 2012. As a consequence of his conduct a without notice antisocial behaviour injunction was granted in August of 2014. He was almost immediately in breach of it. At a hearing on 5^th of September 2014 the court made no order in respect of that breach. An on notice injunction was granted. Mr Thornton breached that. and on 24^th of October 2014 a four month sentence suspended for twelve-months was passed.
3. Mr Thornton breached the order again. It was at that stage that a psychiatric report was obtained. I have read it before today, but I have reminded myself of it today. It reveals something of Mr. Thornton's background and the damage that alcohol has done to his mind and his life.
4. As a consequence of the breaches, for which he was before the court, on 12^th of December 2014, Judge Lopez made an order for six-months' imprisonment, varied subsequently to ninety-two days to take account of the time he had spent on remand.
5. On 14^th of January 2015 Mr. Thornton was released as a consequence of an application to purge. He breached the order again. A further sentence of three-months suspended for twelve months was made on 26^th of January 2015. He breached the order again. I made an order on 11th of March 2015, sentencing him to seventy-four days. He was released on 16^th April. He breached the order again, and on 26^th of June 2015 a sentence of twenty-weeks was passed by Mr. Recorder Evans, Q.C. He was released from that sentence on 19^th of August 2015.
6. Today I have to deal with him for a series of further breaches which he committed after his release from custody in August 2015. There are seven which are admitted between 12^th of September and 2^nd of December 2015. On 12^th of September talking loudly so that he could be heard outside his flat. On 19^th of September again talking loudly, but on this occasion also playing music. 27^th of October laughing, talking loudly and swearing. The same on another occasion in October. On 3^rd of November, talking loudly and playing music. On 24^th of November between ten p.m. and seven a.m. having a visitor at the property and talking loudly. Again, on 2^nd of December for three hours in the early hours, between 1.30 and 4.30, a visitor at the property and talking loudly.
7. I have said before when sentencing Mr. Thornton that I accept that this conduct is not targeted, in the sense that he goes about this behaviour with the intention of causing distress to his neighbours. But he must know by now that this conduct does cause distress to his neighbours, for on many occasions in the past this has been pointed out to him.
8. Talking loudly and playing music, of itself, falls towards the bottom of what one would class as antisocial behaviour. There are no threats, no violence, no threats of violence. These are not the actions of an irredeemable man. They are thoughtless. I would class them as worse than careless, reckless would perhaps be the right word. But they are an obvious source of distress to people who are entitled to live their lives in peace.
9. After the incident on 2^nd of December he was brought before the court and bailed. It was at that stage that it became apparent that the Claimant intended to obtain a possession order. On 5^th of January 2016, following negotiation between the council and solicitors instructed by Mr. Thornton, the court made an order which, it was hoped, would resolve this problem. I say "resolve the problem": it involved Mr. Thornton giving up the tenancy at his flat. That was presented to me for my approval. I regarded the proposed order as the right order to make. It seemed to me that the local authority had taken an entirely proper and sensible view when considering whether or not there was any useful purpose served in pursuing the outstanding breaches. I recall saying on that occasion that the loss of his home was punishment for Mr. Thornton.
10. Mr Thornton had been excluded from his property following his arrest pending the outcome of the committal application. The order for possession allowed him back in for a period of weeks so that he could make arrangements to find somewhere else to live. It was made plain to him by the terms of the order, and by the court, that he was to keep to the terms of the antisocial behaviour injunction in the weeks that followed.
11. However, on 13^th of January 2016 Mr. Thornton breached the order in a number of different ways by having visitors to the property on two occasions when he should not have done. On the first occasion he would seek to excuse his actions on the basis that it was for a short period and for a proper purpose. Seeking to excuse conduct which is a breach of an order is not an attractive thing to do. Court orders are there for a purpose. But it is the second breach is the more culpable. For in drink, Mr. Thornton returned to the property. He says that a friend of his happened to be there and joined him in his flat. They sat up and made sufficient noise to lead his neighbours to phone the police again. When the police arrived they could hear the noise coming from the flat. Mr. Thornton was obviously drunk. Initially he was not unpleasantly drunk. He allowed the police in, there were comments exchanged, but he then got upset, was arrested and did not behave very well.
12. As a consequence of that arrest, and breach of the orders, he comes back before the court. Plainly he is at risk of losing his liberty. The last incident in particular is an aggravating one. Taken individually these breaches fall towards the bottom end of what antisocial behaviour might be. The aggravating features are the history and repetition, which I have summarised above, and the effect upon his neighbours in circumstances where he must have some understanding of that.
13. In the course of her opening, counsel for the Claimant has taken me to some of the statements from those neighbours. Their evidence highlights the effect that this sort of conduct can have upon those who have to live with it. One can only have the greatest sympathy for them. The purpose of this order was to try and protect them from that conduct and in many respects it has failed. That is through no fault of the Claimant authority, which has approached this matter impeccably. The defendant has been fortunate enough to be well represented on a number of occasions, including today. The responsibility for these matters is his.
14. This is a sentencing exercise which is fraught with difficulty. There are, generally speaking, three purposes in sentencing. Firstly, to punish for a breach of a court order. Secondly, to encourage compliance with the underlying order - in this case the antisocial behaviour injunction - and, thirdly, the rehabilitation of the defendant.
15. The fact that a possession order has been made and that Mr. Thornton will have to leave his property on 9^th of February removes the need to ensure compliance with the order to prevent noise nuisance and the like. Rehabilitation is a difficult matter for Mr. Thornton for the reasons set out in the latest report. The loss of a home is unlikely to be a constructive step in his life. And so I am focusing principally on punishment. That is punishment in the context of a long history of disobedience, and in circumstances where he has already been significantly punished by the loss of his flat.
16. Mr. Foster makes a number of well judged points in mitigation. This is a man who, generally speaking, admits what he has done. He has done things to reduce the problem over the years. He got rid of his dogs, his stereo, his DVD, he moved his bedroom and living room around. His alcohol consumption appears to have reduced, partly as a consequence of spending time in prison, but it does seem to have reduced. He has gone to counselling and I give him credit for that. But he has a chronic addiction to alcohol and, as Mr. Bellow points out, he is prone to relapse. Mr Thornton agreed to vacate his property and accepted in doing that that he had to pay a price for his antisocial behaviour.
17. This is a case, if there ever was one, in which it would have been of assistance to everyone - the Claimant, his neighbours, the Defendant and the court - if the court had more than the blunt instrument of imprisonment. The antisocial behaviour guidelines, which apply to sentencing in the criminal courts, incorporate express reference to the use of community orders as a means of dealing with lesser forms of harassment, alarm or distress. There are many cases heard in the county court, which involve conduct which is not of itself sufficiently serious to be a criminal offence, where a community order would be of obvious use. In this case the obvious order would be a requirement to attend on courses about alcohol. But the county court has no power to make such an order on a committal for contempt. The Court of Appeal has in the past identified that as a serious gap, and it has been a serious gap in this case.
18. The only sentence I can properly pass is one of imprisonment. The central question for me is whether or not I should suspend that sentence. There is a distinction to be drawn between the pre-5^th of January matters and the post-5^th of January matters, but I take all of the breaches together. The starting point would be between the six and twenty-six week period. I do not think it helps in a case where one is dealing with somebody who is not a first time offender to identify six weeks and then perform the mathematics. The Claimant's counsel is right that it is between the lesser degree and the serious because of the consequences for those who have been affected by this conduct.
19. The right sentence after a trial, taking account of all the breaches, is six months. That is to be reduced to reflect the admissions that Mr. Thornton has made. They are not all made at the first possible opportunity, and so I reduce the sentence by a quarter to reflect that. That brings the sentence down to four-and-a-half-months. From that a further sixteen days is to be deducted to reflect the time that has been spent on remand.
20. So the sentence I am minded to pass is one of four months concurrent on all the breaches. One could separate out the pre-13^th of January and impose 13^th of January breaches and pass a sentence consecutive in relation to 13^th of January breaches, but the totality of it would still be four-months.
21. Should I suspend it? This is the real issue. On the one hand, Mr. Thornton's behaviour justifies punishment. He has had many chances. But even on 5^th of January he was unable to control himself sufficiently to take the opportunity to leave his property peacefully.
22. I am just persuaded that this is a case where I should suspend. That is because I regard the loss of his flat to have been a serious punishment for Mr Thornton, which the reports suggest will have significant consequences for him. And it is because Mr. Thornton's neighbours will not have to put up with his behaviour any more. A condition of the suspension is that he shall not return to that flat. Whilst the court needs to ensure that people obey injunctions, they are the important people in all this.
23. The antisocial behaviour injunction runs until October, so I shall suspend to October with an express condition that Mr Thornton shall not return to that flat. Were he to do so it would add insult to injury to those poor people. He will have to make other arrangements to collect his belongings, but if he does return to that flat at any time after today for any reason whatsoever, it is four-months straight down. If he cannot understand that, then he does only have himself to blame.
24. I am also conscious that he intends to provide some care for his former partner, but, as I say, the principal reason for suspending is that those this order was designed to protect will no longer have to live with his conduct. So, four months concurrent on each, suspended to 9^th of October 2016. The terms of the suspension being that Mr. Thornton shall not return to the property at 295 Groveley Lane, Northfield, or within 100 yards of it for any reason whatsoever.