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Sentencing for Breach of Housing Act 1996 Injunctions (ASBI's)
Amicus Horizon Ltd v Thorley [2012] EWCA Civ 817
Summary

The Court of Appeal has recently clarified two important points for courts dealing with committal proceedings for breach of Housing Act 1996 injunctions (ASBI's). These points are:

(1) The Sentencing Guidelines Councils' guidelines for breaching an ASBO are equally relevant to breaches of an ASBI; and

(2) Often the first sentence for breaching an ASBI when the custody threshold is passed will be a suspended as opposed to immediate term of imprisonment.

The Facts
  • Mr Thorley was a 69 year old man who was a tenant at accommodation for the "not so young".
  • Mr Thorley was the subject of complaints about his behaviour towards female residents and employees of his social landlord, and these complaints were found to be proven by the court.
  • On 31st January 2012 an interim anti social behaviour injunction with a power of arrest was imposed on Mr Thorley.
  • Subsequently, Mr Thorley breached the ASBI as follows: (1) By entering a residents lounge from which he had been barred; (2) By swearing and shouting threatening words when he was asked to leave the residents lounge; (3) By swearing at a female resident when he was leaving the lift; (4) By swearing and uttering threatening words to an employee of his landlord.
  • When the matter came before the court Mr Thorley denied all the allegations.
  • The court found the allegations proved, made a possession order and committed Mr Thorley to prison for a total of 4 months.
The Decision
The Court of Appeal concluded that in the case of Mr Thorley an immediate custodial sentence was justified but reduced the sentence to a total of 6 weeks on the ground that 4 months was "excessive".
More important, however, than the specific outcome of the case, are the points of principle that come from the Court of Appeal.
The first point is the applicability of the Sentencing Guidelines Councils' Guidelines for breaching an ASBO. As to these Guidelines, the Court said: "Although these guidelines are directed at criminal proceedings, they are equally relevant when an antisocial behaviour order has been made by a civil court." (Para 5).
The second point of importance is the recognition that "often the first sentence for breaching an antisocial behaviour order when the custody threshold is passed is a suspended sentence" (Para 7). This re-inforces what was said in Hale v Tanner [2000] FLR 879 when (in the context of family proceedings) Hale LJ said that it is often common practice to take some other course than immediate custody on a first breach, and these observations were applied in a Housing context in Birmingham CC v Flatt [2008] EWCA Civ 739. This does not mean that custody cannot be imposed on a first occasion but it is important to be aware of the courts common practice when representing those faced with committal proceedings.

The Sentencing Guidelines for Breaching an ASBO

The sentencing guidelines give the following guidance:

(1) Where serious harassment, alarm or distress was either caused or intended the starting point will be 26 weeks custody with the sentencing range being the custody threshold - 2 years in custody.

(2) Cases involving a lesser degree of harassment, alarm or distress, or where such harm was intended, or where this would have been likely if the offender had not been appprehended. The starting point is 6 weeks in custody and the sentencing range is a community order - 26 weeks custody.

(3) Cases where no harassment alarm or distress was caused and none was intended. The starting point is a community order and the sentencing range is fine - community order.

IMPORTANT OBSERVATIONS

A few points of note to be remembered are as follows:

(1) The guidelines (as for all criminal offences) talk about a reduction for a guilty plea and therefore the importance of an admission at the early stages of committal proceedings should be borne in mind.

(2) A community penalty is not available in committal proceedings. That does not mean the court should send the Defendant to prison simply because it cannot impose a community penalty, and it would be wrong for the court to escalate the sentence simply because a community penalty is not available.

(3) These are guidelines not tramlines.

(4) Mitigating factors explicitly recognised by the guidelines are: (a) Where the breach occurs after a long period of compliance; and (b) Where the prohibition was not fully understood especially if the order is an interim one made without notice. There are, however, likely to be other mitigating factors specific to the facts of each particular case to bear in mind.

Russell James
Russelljames@devonchambers.co.uk
Russell specialises in Housing, Homelessness, Property Litigation and Civil Litigation. Russell is recognised in Legal 500 for his work in Housing.


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http://sentencingcouncil.judiciary.gov.uk/docs/web_Breach_of_an_Anti-Social_behaviour_order.pdf