Case No: B2/2008/1342
Neutral Citation Number: [2008] EWCA Civ 739
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(MR RECORDER BLEASDALE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 12th June 2008

Before:

LORD JUSTICE TUCKEY
LORD JUSTICE CARNWATH
and
LORD JUSTICE JACOB
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Between:

	BIRMINGHAM CITY COUNCIL
	Respondent/
Claimant	
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FLATT	
Appellant/
Defendant	

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(DAR Transcript of 
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Mr M Paget (instructed by Messrs Tyndallwoods) appeared on behalf of the Appellant.

Mr M Reihill (instructed by Birmingham City Council Legal & Democratic Services) appeared on behalf of the Respondent.
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Judgment

Lord Justice Tuckey:

1.	This is an appeal as of right by William Flatt against a sentence of four months’ imprisonment imposed by Mr Recorder Bleasdale QC in the Birmingham County Court on 21 May 2008 for breaches of an anti‑social behaviour injunction.  The contention is that this sentence is manifestly excessive.  The argument is that it was too long and/or should have been suspended.  

2.	The appellant, who is now 69, is a tenant of the respondent council, of 23 Westray Close in Birmingham B45.  He has lived at this address alone for a number of years.  There is a considerable history of friction between the appellant and his neighbours in and visitors to the close which relate among other things to parking and dogs making messes in the close.  

3.	The injunction was granted on 11 June 2007.  It followed a number of incidents including one which resulted in the appellant being convicted on 11 October 2006 for an assault on his neighbour, Mr Masters.  The assault was charged as common assault but it was a particularly nasty one because the appellant had poured petrol over Mr Masters and threatened to light it.  He received a community sentence for that offence from the magistrates.  The injunction which followed restrained the appellant from: (1) using or threatening violence towards named neighbours; (2) verbally abusing, swearing and/or acting in an intimidating and aggressive manner towards the residents or visitors of Westray Close; and then (4) causing an obstruction with his vehicle; and (5) from acting in a manner capable of causing nuisance or annoyance towards anyone living or visiting Westray Close.

4.	The first of the two breaches of the injunction found proved by the recorder after a hearing, which took place over three days, occurred on 16 November 2007.  Mr Masters was walking in the area of the close designated for car parking, and marked as such by bricks set into the road surface, when the appellant drove into the close in his van and drove at Mr Masters in this parking area.  To what extent he actually entered the parking area is not entirely clear to me, but Mr Paget says his wheels only touched the brickwork denoting its boundary.  But whatever course it actually did, Mr Masters thought that he was going to be struck by the vehicle and in order to avoid it doing so he had to jump out of the way and in doing so he landed on the hard surface of the parking area and hurt his back, which did not require any hospital treatment but was still causing him pain some days after the incident.  He was understandably shaken and frightened by what had happened.  The recorder heard evidence about this because the appellant had denied that he had gone anywhere near Mr Masters, and at the end of the day concluded that the appellant had not intended to hit Mr Masters but had intended to scare him.

5.	The second breach found proved occurred on 9 December 2007 when Mr Rose, a regular visitor to the close, parked in the close at a time when the appellant’s van was not there.  When he returned to his car the van had returned and parked near to it.  The appellant then made allegations to the anti‑social behaviour officer of the council that Mr Rose had obstructed his van.  The recorder found that the allegations were false and the situation had been contrived by the appellant so as to cause nuisance or annoyance to Mr Rose in breach of paragraph five of the injunction.  As I have said, the appellant denied both breaches of the injunction and the recorder had to resolve issues about what had actually happened.  We only have a note of his judgment.  Having found the two breaches proved in the way I indicated, he came to sentence the appellant after hearing mitigation on his behalf and he said:

“It is the first breach that concerns me … You wanted to frighten Mr Masters, you achieved your objective, that was an extremely stupid thing to do. Also I find that later you were making up allegations about Mr Rose.  

In relation to the first breach.  It was an incident that was denied.  Just a year before you had been convicted of pouring petrol over Mr Masters.  On that occasion you were given a community sentence.  And I am sure you were given a full warning what the consequences would be if you breached the ASBI on 11 June 2007.  

I have had the opportunity to sit and watch you whilst mitigation was presented.  I take the view that you hold the court in poorly disguised contempt and you don’t have proper regard for these proceedings.”

6.	In the course of these sentencing remarks the recorder said: “I have no option but to send you to prison”.  Mr Paget, who appears for the appellant today, says the recorder did have options, as undoubtedly he did; but I do not take what the recorder said as saying he had no options at all available to him.  All he was saying is that these breaches which he had said concerned him were sufficiently serious to require imprisonment, and that any other alternative was not an option which he could contemplate.  Mr Paget, in his submissions that the sentence was manifestly excessive, reminds us of what the options in fact were.  He has referred us to the case of Hale v Tanner [2000] 2 FLR 879,  a decision of this court in which Hale LJ said a number of things about sentencing for contempt of court, but making it clear that she did so only in the context of family cases.  Nevertheless she did make the point, and indeed it is a point which applicable to contempt of court cases generally, that it does not follow that imprisonment is to be regarded as the automatic consequence of the breach of an order, and she also made the point that it is common practice to take some other course on the first occasion when someone has to be dealt with for contempt of court for breaching an injunction.

7.	All that is general guidance.  Mr Paget has also referred us to the sentencing guidelines for breach of protective orders, which indicate that where there is a single breach involving some violence and/or significant physical or psychological harm to the victim, which it seems to me this case is, a starting point of 13 to 26 weeks of custody is appropriate.  Mr Paget sought to put what happened here in the lower category where a community order would be appropriate.  But a community order cannot be imposed for contempt of court so that really does not help very much.  So far as aggravating and mitigating features are concerned, which the sentencing guideline helpfully lists, he accepts that this is a case where there is the aggravating feature of the proof of history of violence or threats by the offender, but none of the other aggravating features identified in the guideline are present, and he says that there are mitigating factors here because the breach occurred after a long period of compliance.  I cannot accept that.  The order was first made some time earlier in 2007, and it was made finally, as I have said, in June 2007 and these breaches occurred in November and December 2007.  I do not think that that can be described as a long period of compliance on the appellant’s behalf.

8.	As well as the identified aggravating feature in this case, it seems to me that it was appropriate for the recorder to take account of the fact that the appellant did not have the mitigation which undoubtedly is strong mitigation in a case of this kind, of his having admitted the alleged breaches; or, more importantly, any sign of remorse from him for what he had done, which must have had a serious effect on the victim of the main breach, Mr Masters.  The recorder also took into account the appellant’s attitude to the proceedings in the sentencing remarks to which I have referred, which again seems to me to be a further aggravating feature of this case.  So was a sentence of imprisonment wrong in principle?  Mr Paget accepted that it was not, but only with the caveat that it should be a suspended sentence.  That I do not think is the right approach.  The courts have said that in fixing the term of any sentence of imprisonment one should not take account of the fact that it should be suspended.  In this case it seems to me that a sentence of imprisonment was clearly justified for the serious breach in relation to Mr Masters.  The length of that sentence, a four-month term, was, I would accept, at the top end of the range of sentences available to the judge for this breach.  I might have imposed a lesser sentence but I am unable to say that four months was manifestly excessive.  So that does leave the remaining question as to whether or not that sentence should have been suspended.  There are no guiding principles as to when such a sentence should be suspended.  So far as contempt of court is concerned, the court has an absolute discretion as to whether to do so or not and might well have done so in this case, had the appellant admitted the breaches and shown some remorse.

9.	But in the light of the fact that he did not, and also the attitude he displayed to this matter, I think that the recorder was perfectly entitled to take the view that this was not a case for suspending this sentence.  It was therefore a sentence which was within the wide discretion that we have in dealing with this appellant for the contempt of court.  He had the advantage of having seen and heard the appellant over the three day hearing, and I am unable to say that the discretion which he exercised not to suspend was wrong.  

10.	For those reasons I would dismiss this appeal.
:  
Lord Justice Carnwath:
11.	I agree.  Lady Hale LJ in Hale v Tanner made clear that if imprisonment is appropriate, the length of committal should be decided without reference to whether or not there is a suspension.  It seems to me that the difference between the four months which the judge adopted and the three months which Mr Paget has suggested is really not such as could possibly justify intervention of this court.  As to whether it was to be suspended, against the background of the seriousness of the offence which led to the order, and the violent character of the action on this occasion as found by the judge, coupled with the appellant’s own failure to show any signs of remorse, it is impossible to say that this was a case where the judge was not entitled to hold that an immediate imprisonment sentence was appropriate.

Lord Justice Jacob:
12.	I agree with both judgments.

Order: Appeal dismissed