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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> Birmingham City Council v Gill [2016] EW Misc B3 (CC) (12 February 2016) URL: http://www.bailii.org/ew/cases/Misc/2016/B3.html Cite as: [2016] EW Misc B3 (CC)

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IN THE COUNTY COURT AT BIRMINGHAM

		Priory Courts 33 Bull Street Birmingham B4 6DS
		12th February 2016

APPROVED JUDGMENT AND SENTENCING REMARKS
APPROVED JUDGMENT

HER HONOUR JUDGE CARMEL WALL:

1. On 29^th July 2014, His Honour Judge Robert Owen QC made an order which is set out at page 1 of the bundle in these terms:

"Thomas Gill, whether by himself or by instructing or encouraging any other person shall not

(1) assault, harass, intimidate, pester, threaten or use violence against Miss Sarah Jordan of 6 Pudsey Drive, Sutton Coldfield, Birmingham.

(2) Communicate by any means whatsoever verbally or otherwise with Miss Sarah Jordan, including but not limited to by telephone, text message, email, Facebook or any other social networking site, except through a solicitor or social worker for the purpose of arranging contact with their son, Layton Gill Jordan."

(3) He was not to enter the area outlined in red on the map attached, which shows Miss Jordan's property at the centre of a wider exclusion zone.

(4) He was not to enter Bath Row, Edgbaston.

2. The allegations in this case concern the first three of those terms. The order was to continue until 29^th July 2019 and so it is not disputed that it was in force at the end of 2015 and the beginning of 2016. The order was personally served on Thomas Gill, and that is not disputed, on 7^th August 2014.
3. The trial before me today has concerned allegations that are set out in an amended notice of committal which is at page 23 of the bundle. Seven specific allegations are made and I will deal with each of them in turn.
4. In terms of evidence, I have heard oral evidence given on oath from Sarah Jordan and from the respondent, Thomas Gill. I have also heard evidence from Audrey McDonald and from PC Carrington but their evidence is not central to the issue in this case. Miss McDonald produced police logs of complaints that Miss Jordan had made but I remind myself that those complaints are not independent of Miss Jordan, even though they are consistent with the evidence that she now gives. PC Carrington produced a Dictaphone which it is not disputed was the property of the defendant and which contained a recording of his voice.
5. This case requires me to compare and consider the evidence from Sarah Jordan and from the respondent about the specific allegations made and I remind myself when I do that that it is the applicant who must prove this case in relation to each allegation and that the claimant must prove the case to the criminal standard. That standard is so that I am sure or that it is proved beyond reasonable doubt, to use another expression, that the respondent has committed the breaches that are alleged against him.
6. In considering the evidence, I say at the outset that I found Miss Jordan to be a straightforward and honest witness in giving her account. I found her evidence to be clear. I am not persuaded that her withdrawal of an allegation in 2013 undermined her evidence in any way. Quite the contrary, it seemed to me to show that she was willing to accept when she had made a mistake and she was very clear that, in relation to matters to which I will turn in a moment, she had not made a mistake in these proceedings.
7. When I consider the arguments that are raised by the respondent as to why I should reject her evidence, I do not find them convincing. He firstly invites me to find that Miss Jordan is not a truthful witness because she has given inconsistent evidence about the length of their relationship and the age of their son. It seems to me that the type of relationship that the respondent and Miss Jordan have had, means that any differences in description of its duration do not amount to a significant inconsistency in evidence. Any previous error in the age of her son is, clearly, a straightforward mistake and does not indicate that she is an inconsistent or unreliable witness.
8. I have already addressed the second point that the respondent has made to me about the previous allegation that was made in 2013, an allegation which she withdrew, having accepted that she had made a mistake on that occasion.

MR GILL: She didn't actually... Sorry, your honour. She—

9. THE JUDGE: The account that the respondent gives, that it is Miss Jordan who is trying to pull him back into a relationship by deception, is simply not credible when one takes account of the fact that it is the respondent who keeps going back to her property. That makes no sense at all when he says that he does not wish to have any relationship with her and is not obsessed with her. In my judgment, it supports the contrary assertion, that he does want or did want to resume a relationship and that was why he persisted in breaching this injunction and attending at her property, often in breach of bail conditions imposed firstly by this court and also by the criminal courts.
10. The respondent in this case has claimed to be truthful throughout but it is right to say that he has only today made partial admissions in relation to many of the allegations in the notice of committal. In relation to a specific part of the case that is made against him, which is the allegation that he threatened violence on 7^th January, at the outset, he did not accept that he had done that at all. Then, in cross-examination, he did accept that he had threatened violence but qualified his admission by saying it was directed at another person and not Miss Jordan. It seems to me that these changes are a strong indication that he has not been straightforward or truthful in his evidence.
11. I now turn to the specific breaches. The first breach is alleged to have occurred on 4^th December 2015. This is not a breach in respect of which any admission is made by the respondent. What is alleged is that a Facebook message was sent to Miss Jordan either by the respondent personally or at his instigation. I find that breach is proved. I accept that Miss Jordan did receive the communication that she exhibits to her Affidavit, which was a Facebook message referring to a relationship with the respondent and also referring to her son. It seems to me that message must have been sent by somebody who knows her well. The Facebook message purported to be sent by Morgan Gill, also known as Morgan Murphy, who is the respondent's brother. He is a young man of only 14 or 15. He lives in Northern Ireland with adoptive parents and has never met Miss Jordan. I do not find it credible that he would have sent her that message.
12. The respondent gives an account in his evidence, that it was Miss Jordan herself who set up a false Facebook account and sent herself a message in order to get him into trouble. If that was right, then it makes no sense for her to create a message signed by Morgan Gill and not simply the respondent himself. I reject that suggestion. I find it was the respondent who was trying to distance himself from the message that he sent to her so as to avoid trouble. I am sure that this was a message that the respondent either sent himself or that he arranged for somebody else to send it on his behalf.
13. I now turn to the second breach, which is an allegation that on 7^th December at night, the respondent attended at Miss Jordan's property and left a bag with goods for their son and a Dictaphone with his voice recorded on it with abusive language. I have heard the recording on the Dictaphone. The respondent has made a partial admission to this allegation. He accepts attending at the property, which is a breach of the injunction. He admits leaving those belongings for his son and he admits leaving a Dictaphone and he accepts that it is his voice on the Dictaphone with the abusive language I have already referred to. I reject his account that he did that at Miss Jordan's request. That makes no sense to me at all. She was at pains to tell me during her evidence that she has set up additional security in the property in order to keep the respondent away and it does not seem credible to me that she would have asked him to bring gifts to her property.
14. The way in which the respondent claims she asked him to do this lacks credibility. He says that she impersonated his brother and sent him a message saying that his son wanted a X-box and a magic set and it was only later that the respondent realised that it was Miss Jordan posing as his brother who had sent that message to him. That is an account that is entirely lacking in credibility and I reject it. It seems to me and I find that it was the respondent who believed that by sending gifts to his son, he might in some way inveigle his way back into Miss Jordan's affections. In any event, the aspect that he has admitted puts him in breach of the injunction.
15. I turn to the third breach alleged to have occurred on 9^th December. The allegation is that the respondent attended at Miss Jordan's property and they had a discussion where he blew a kiss to her and shouted that he loved her and wanted her to marry him. The respondent again has made a number of partial admissions. He admits attending at the property. He admits saying some of the words that she alleges but he disputes that he shouted, "I love you. Marry me." In the context of this case, it makes no difference whether he said those words or not but having accepted Miss Jordan's evidence in relation to the matter as a whole, it seems to me that this would be a bizarre aspect for her to invent, having regard to the fact that the remainder of the allegation is accepted by the respondent. I therefore accept her account and reject the respondent's account of that incident, so that I find it proved.
16. The fourth and fifth breaches are, in my judgment, the most serious of the matters alleged against the respondent. Both of those breaches occurred on 7^th January. In the first of them, the resondent admits presence at Miss Jordan's home. Initially, he denied the allegation that he threatened violence at the property. The specific allegation is that he shouted, "I'm gonna get a gun and blow your fucking head off," whilst making a gun gesture; and that later he said, "And watch when I see your brother I'll fucking shoot him too." In cross-examination, he changed his position to the extent that he admitted using those words but he said that he did so because he believed somebody else was at the property, a person he names as Joseph Cunningham. The respondent has been contradictory in his evidence, moving from an initial denial to an acceptance of what he has done but not the person to who it was directed. There is no persuasive evidence that there was any other person at the property at that time. I have seen his demeanour on the CCTV footage captured at the time. I am sure that he was threatening violence against Miss Jordan on that occasion.
17. I also take into account in finding this breach proved that he has pleaded guilty in the Magistrates' Court to offences of criminal damage and either harassment or threatening behaviour (it matters not) in relation to the two incidents, alleged to have occurred on 7^th January, firstly in the early hours of the morning and then later at six o'clock in the morning (the fifth breach alleged). He admits by those pleas that he attended and at the very least harassed Miss Jordan on 7^th January and returned later and smashed a window (the fifth breach alleged). The fifth breach is in any event admitted in full and so I find that breach, too, is proved.
18. I now turn to the sixth breach. That is an allegation that on 19^th January the respondent attended at the property. The specific allegation was that he attended there and banged on the front window. There is no evidence that he banged on the front window but I do find it proved that he attended at the property. The reason that I accept Miss Jordan's evidence about that, is that she was quite sure about what had happened because she said she spoke to the respondent about his breach of bail and that was why she said she could be sure it was him and not anyone else. Her statement made under section 9 of the Criminal Evidence Act on the day of the incident is consistent with her having had a conversation with the respondent and I accept her explanation when challenged that there is no CCTV film of this incident because the system was temporarily broken and was later fixed by her brother. I find that breach proved.
19. As far as the seventh breach is concerned, that is an allegation that on 21^st January, the respondent attended at 6 Pudsey Drive. He has admitted that in full and I find it proved. The specific allegation is that he banged on the door and he has admitted in his evidence that he did knock at the door.
20. Finally, in considering the respondent's case as a whole, there is no persuasive evidence to show that this case is one of Miss Jordan harassing the respondent, as the respondent claims. It is rather the respondent who has consistently gone back to her property to undertake what amounts to a campaign of pestering and harassment.
21. It follows then that in relation to the first allegation, I find that there is a breach of terms 1 and 2 of the order, in relation to the fifth allegation a breach of terms 1 and 3 of the order and in relation to each of the other four allegations, I find that there are breaches of terms 1, 2 and 3 of the order.

MR GILL: So is that guilty on everything then? Yes, basically.

THE JUDGE: I have found all of the breaches proved.

MS CULLEN: Your honour, the next matter to consider is sentencing and, of course, the defendant has an opportunity to raise mitigation on this point.

THE JUDGE: Yes.

MS CULLEN: I have handed up my skeleton argument setting out the principles on which the court deals with sentencing and with your honour's permission, I will just take you through those matters and also just to address your honour on the feature of this case concerning 7^th January, where the defendant has pleaded guilty but is awaiting sentencing in the criminal court and how it is suggested the court should deal with matters where that situation arises.

At paragraph 30 of my skeleton argument, page 6, the court has the power to impose an unlimited fine or imprisonment for up to two years. The main objectives that the court will be looking at are punishment for breach of the court order, securing future compliance and rehabilitation of the defendant. The sentence will need to reflect aggravating and mitigating features of the breach. In this case, I would draw the court's attention to a number of aggravating features. The first I have cited as a possible aggravating feature in my skeleton argument. That is deliberate flouting of the court's orders on repeated occasions. Your honour will be aware of the three previous committal orders included in the bundle which set out numerous previous breaches over the course of the past 18 months or so.

Further aggravating factors are, of course, in this case, while there have been some minor admissions, there have not been admissions to the full extent of most of the allegations. Miss Jordan, of course, has had to give evidence before the court. This is not a matter of an early admission of guilt. It has been refused throughout, in particular the nature and how the defendant has put his case I would say is an aggravating feature.

The nature of the breaches, your honour in my submission was right to draw out the 7^th January as being the most serious incident in terms of what took place during that occasion and that breach but the other incidents where the defendant attended the property in my submission are still very serious breaches, given the background of this case, given the nature of the relationship, of the previous domestic violence and the defendant attending Miss Jordan's property late at night on a number of occasions and, of course, the aggravating feature that we have four allegations, if you take the 7^th January allegations as two, taking place whilst the defendant was on bail, whilst the defendant had already been before the court and reminded of the importance of complying with his injunction.

A further matter to bring your attention which in my submission is an aggravating feature is that the defendant, of course, was sentenced previously to nine months in prison. He applied to purge his contempt I believe on 7^th October or early October last year and coming up to two months later, he is breaching again.

The other matters I would say are relevant to this case are matters that the Court of Appeal has drawn the court's attention to to take into account in the case of Leicester CC v Lewis [2000] 33 HLR 37, and that is paragraph 33. The court will have to look at the behaviour the injunction was aimed at protecting people from and, in this case, we draw the court's attention to the nature of the relationship between Miss Jordan and Mr Gill and her desire and the local authority's desire to protect her from that relationship and from Mr Gill attending. The strength of the case against the respondent in the original injunction application; the defendant never actually disputed the original injunction; the consideration that was given to the terms of the injunction; this amended injunction was made following committal proceedings and, of course, the importance of having an exclusion zone is something that I would draw the court's attention to. Whether the breaches were deliberate and the frequency of the breaches; we have breaches taking place over a very brief period of time, of course, less than a month and a half, and several breaches that the court has found proved. Whether the respondent made any attempt to stop or leave the situation that caused the breach of the injunction; in all of these allegations in my submission these were deliberate attempts where the defendant went out of his way to either Miss Jordan's property or to message Miss Jordan and this is not an example of an accidental breach or a breach that he was trying to avoid. The escalating nature of the breaches we say is something else that the court will need to take into consideration.

Ordinarily, where there is a first breach, the case of Amicus Horizon Ltd v Thorley suggested the court should take into consideration sentencing guidelines for antisocial behaviour orders. I have not produced those to the court because—

THE JUDGE: No, but this is not a first offender.

MS CULLEN: Indeed.

THE JUDGE: Yes.

MS CULLEN: The other matter to draw your attention to is time spent on remand. That is not automatically deducted from any sentence passed on committal but it is open to you as the judge committing the defendant if you decide to pass a sentence of imprisonment to reflect the period of remand in the total period of imprisonment.

THE JUDGE: That is 37 days.

MS CULLEN: I believe it is. I think we have three weeks most recently and then two weeks. I think it was 10^th December to 23^rd December.

THE JUDGE: Which would be 14 days.

MS CULLEN: Yes.

THE JUDGE: Then 21^st January until today would be another 23 days, so I make that 37.

MS CULLEN: It is not mandatory for you to do so but it is something that you will want to consider when looking at the total sentence. One matter just to address you on now while I have an opportunity is you will have seen, your honour, in the previous committal order the defendant came before the court to purge his contempt and was released much earlier than would ordinarily have been done so. Obviously, I appreciate that any defendant has the right to make such an application but if—

THE JUDGE: That was October.

MS CULLEN: That was October, yes. The sentence had initially been for nine months, so he would have been due to be released... August was when it was passed so it was well before he would have been due to be released. We would ask the court to consider when passing sentence that if there is any purge application, that it be reserved to yourself if possible, should there be a purge application at a later date. We would submit that that is necessary in this case because of how recently these present breaches took place after that purge application and because there have previously been purge applications followed by further breaches. Your honour, will you excuse me one moment?

The final matter, your honour, just to address you on is how the court should approach matters where you are dealing with concurrent proceedings. Your honour, there are a number of cases. There is Lomas v Parle [2003] EWCA Civ 1804 but Slade v Slade [2009] EWCA Civ 748 is the most recent which I have with me.

THE JUDGE: I am not familiar with that.

MS CULLEN: Can I pass up a copy and I will provide a copy to Mr Gill as well?

MR GILL: Might as well just tell them to give me it later in prison. What is this? Now I'm not being funny. I've proved she's lying in statements and they're not even bothered about it. What's this about?

THE JUDGE: I have given my judgment and I will listen to you on sentence in a moment. Thank you.

MR GILL: This is not right. I'm telling you straight it's fully not right - I'm contacting the Irish embassy as well - how I've been treated. I go to police stations. They won't do it and there's lies in statements. That's perverting the course—

THE JUDGE: Mr Gill—

MR GILL: Do you know what? It's not—

THE JUDGE: —I am listening to counsel at the moment.

MR GILL: —right. I am going to contact the Irish embassy. My hand on heart, yes, I'm contacting the Irish embassy. I'm making sure they do a complaint because I'm just taking... all I'm trying to do is move on with my life, yes, and she's harassing me and you... you lot know from the revenge porn she put on the sites, that's not somebody—

THE JUDGE: Mr Gill, stop.

MR GILL: I've had enough.

MS CULLEN: Your honour, Slade v Slade was slightly different to the case we are concerned with here. That was where there were proceedings in the County Court between a father and a mother and an undertaking not to harass. By the time of the contempt proceedings, the mother had pleaded guilty in the Magistrates' Court to causing malicious damage and had received twelve months on probation for that and then the court went on to sentence for committal proceedings but there is some useful discussion in the case which summarises the case law where there are concurrent proceedings and how the court should deal with that, which starts at paragraph 15 of the judgment. The one to particularly draw your attention to is paragraph 19, which is the Lomas v Parle case which is cited where husband had been committed for four months for breach of an injunction for harassment and he had also been subject to pending proceedings in the Magistrates' Court for the offence of breaching a restraining order and the court gave guidance as to what the court on committal proceedings should do.

THE JUDGE: Because I am the first court, I pass the sentence that I think is right for everything and then it is the second court that has to take into account the sentence I have passed when dealing with Mr Gill later.

MS CULLEN: Indeed. To just confirm with your honour, we have been in touch with the Crown Prosecution Service and we will, of course, update them as to what has happened today. In respect of—

MR GILL: [inaudible].

MS CULLEN: In respect of what we are dealing with, breach of an injunction, there are different principles to apply. You will obviously take into account the features of it. The criminal court will have the opportunity to look at what sentence you have passed but it is a slightly different matter because it is a criminal offence rather than, in this case, the court is looking at the fact there has been a breach of the injunction and the importance of complying with the injunction in the future.

MR GILL: [Inaudible] they just don't believe me. They know exactly what she's doing. They just don't care.

THE JUDGE: The matter that is on the PNC, and I appreciate that Mr Gill thinks that he has pleaded guilty to something else, that is the harassment without violence, is it not?

MS CULLEN: I believe it is, your honour.

THE JUDGE: Yes.

MS CULLEN: Your honour, unless there is anything further you would like me to address you on in sentencing, those are the points I wish to make.

THE JUDGE: Yes, thank you. Mr Gill, in relation to the criminal proceedings, are there any medical reports being prepared about you?

MR GILL: Your honour, there's nothing wrong medically. Do you know what it is? I've hand on heart, yes... I've had enough. I really and... No, hold on. Your honour, you're sitting there and you're not believing me, yes? You're seeing naked photos. These are getting posted on revenge porn, so ex-girlfriend revenge porn, so, no, I'm not being funny. What more can I do? I'm going to the police station to report her and she's doing it with her two brothers and her... and a guy who scarred my face to wind me up. Now, I've not seen my son in three years. What more can I do? I've got myself a trade. I've come out. I get into work. I'm getting threatened. What more can I do?

THE JUDGE: I wanted to ask you about that. When did you get your bricklaying qualification?

MR GILL: I got it in jail in January and I passed my CSCS in June, so I've been—

THE JUDGE: That is January of last year, is it?

MR GILL: I think so, yes. I passed it in jail. I think it was in January of last year. No. I passed my CSCS in... I think it was in June. When I finished my licence, I seen somebody in probation. Sohail his name is and I done it so maybe I could pass my CSCS card and I've... I keep getting... Every time I get into a job, I'm getting phone... It's like you don't believe me. I am getting phone calls and she's doing... like, you think... why would she post... if she's fully 100 percent, innocent in this, why would she post that photo on that site? She didn't... and, your honour, she—

THE JUDGE: No. I just want to ask you one or two questions.

MR GILL: [Inaudible].

THE JUDGE: I know that you are going to be sentenced by the court next week.

MR GILL: And they know that throughout because... Sorry.

THE JUDGE: Has the court asked for—

MR GILL: Anger management.

THE JUDGE: —any medical report about you?

MR GILL: No, they've asked for anger management. What they've said is, yes, I was doing... I was doing a pre-sentence report and they... they've suggested anger management. Now, the thing is, your honour, I don't need a medical report because I'm not mad. I don't need somebody to try and tell me I'm mad because I know I'm 100 percent sane. I am not a mad person. I've just had enough of this girl. I really and truly cannot stand the sight of her. She keeps lying. Look, you're not even concerned that she's lied in every statement now. What more can I do? If you're not concerned that she's lied in every statement, then... If I was to lie in a statement, I would be placed under arrest.

THE JUDGE: Mr Gill, you have told me—

MR GILL: But, your honour, this really concerns me.

THE JUDGE: Yes, I have heard that.

MR GILL: Hand on heart, I'm contacting my embassy about it because how I've been treated, yes... how I've been treated, you're not even bothered that she posted... Do you know what that word "revenge" means?

THE JUDGE: Mr Gill—

MR GILL: She's doing this to take the mick out of me.

THE JUDGE: —I have heard your evidence. I have heard your evidence and I have made my judgment. Now I have to consider what is the right sentence and I just wanted to check one or two things. You have said that you have been in care and you came out of care. How old you are now?

MR GILL: 28.

THE JUDGE: You are 28.

MR GILL: All I want to do is work and see my son. Every time I try and see... put my application in so I can turn my life is... she's... she's... honest to God, hand on heart, I never want to see her again. I really and truly don't. I have had enough of that girl. I don't want to see her for the rest of my... I only want contact with my son. I don't want to see her at all.

THE JUDGE: Is there anything else about you that you think I need to know when I—

MR GILL: Yes.

THE JUDGE: —consider what the right sentence is.

MR GILL: Last week, I was meant to start my bricklaying job, your honour, [inaudible], yes? Every... Since I've come out of jail, I keep getting myself into work. Whether or not you believe me, you must know... it don't take a genius to know that she's lying. It don't take an idiot to know that this girl's lying because she is fully lying through her teeth and she knows... and, like, it's obviously... posting them photos like that is just proof. Now, I'm trying my hardest to be... I've turned my life around. I've... like, for a year and a half, I never committed a criminal offence to make money. Do you know what that is for somebody who come out of care? That's [brilliant?]. Care was a prison. That's what a care home was to me. I've had enough. I don't want to see the girl. I really and truly don't like her. I don't want her anywhere near me. I just want contact with my son. That is all I want, to see my son. I don't want to see her. I don't even like the girl. I really, truly don't. I've had a... and she makes me physically sick. Like I'd want to be with a girl who posts naked photos on a revenge porn site. Why would I... Let's be honest. Why would I want to walk down the street with a girl like that? Really and truly, why?

THE JUDGE: Thank you.

MR GILL: Why would I want to spend time... Look, I really and truly just want to work.

THE JUDGE: Just—

MR GILL: I just want to work.

THE JUDGE: I have made a note of that. Thank you.

MR GILL: I just want to work.

MS CULLEN: Your honour, sorry to bring this up. Just one point to confirm, we were emailed by probation on 11^th February stating that Mr Gill did not adhere to his interview appointment on 21^st January and a nil report has been submitted to the court.

MR GILL: Because I was arrested.

MS CULLEN: We did then tell probation... We had told probation previously that he had been remanded in custody.

THE JUDGE: That Mr Gill was in custody, yes. So he could not—

MS CULLEN: But it does not appear from our understanding that there is any report—

MR GILL: No.

MS CULLEN: —at the moment that is due before the criminal courts.

MR GILL: Yes. What the judge... What the magistrate actually did say, your honour, the magistrate did actually want me to have... the magistrate actually wanted me to have anger management. Now, my concern is I've got my bricklaying trade, yes. I can't learn nothing from being in jail now. I've fully... I've had enough. I've had enough of prison. I can't stand the place and it's... why... the reason why I haven't gone out and commit crime, and you may or may not believe me but I hand on heart am trying my hardest just to be a good guy and see my son and I haven't seen my son in three years. Do you know how hard that is every time I get into a job, I'm getting threatened... you don't even... nobody will believe me. I'm not being believed by anybody. Do you know how that feels to me? Do you know how that feels that I'm trying my hardest to just work and be a good geezer and that nobody in the world's believing me? I'm just trying to be honest. I go guilty to everything I do. I own up to everything I do. I've been honest with you and I'm just telling you how I feel in my heart and I really and truly... I've had enough of the girl. I've got no... I don't love her at all. I don't want... I'm not obsessive. I just don't want to be with her.

THE JUDGE: Mr Gill, I am going to proceed to sentence now.

Sentencing remarks

HER HONOUR JUDGE CARMEL WALL:

22. Thomas Anthony Gill, this is a committal hearing for breaches of an antisocial behaviour injunction that was granted on 29^th July 2014. The breaches are in respect of paragraphs 1, 2 and 3 of that order. Those paragraphs state as follows: that you shall not assault, harass, intimidate, pester, threaten or use violence against Miss Sarah Jordan of 6 Pudsey Drive, Sutton Coldfield, Birmingham; that you shall not communicate by any means whatsoever, verbally or otherwise with Miss Sarah Jordan, including but not limited to by telephone, text message, email, Facebook or any other social networking site except through a solicitor or social worker for the purpose of arranging contact with your son, Layton Gill Jordan; thirdly, that you shall not enter the area outlined in red on the map attached to the order which shows an exclusion zone. Paragraph 4 of that order is not relevant to these proceedings because no breach of that paragraph has been alleged.
23. I have heard evidence in this trial and for the reasons that I have already given in my earlier judgment I have found the breaches alleged against you to have been proved. I am obliged to set out those breaches in this judgment. Firstly, that on 4^th December 2015 at approximately 9.18pm, you or an agent acting on your instructions pestered or communicated with or harassed or intimidated Miss Jordan by sending a Facebook message at 21.18 hours and I find that that is proved and is a breach of paragraphs 1 and 2 of the order.
24. Secondly, that on 7^th December 2015, at approximately five minutes past ten in the evening, you attended Miss Jordan's property. You left there an X-box and magic set. Inside the bag holding those goods was a Dictaphone with your voice recorded on it saying, "Fucking bastards, cunts, cunts, cunts," which was a breach of the terms at paragraphs 1, 2 and 3 of the order.
25. Thirdly, that on 9^th December 2015 at approximately 10.40, you attended at Miss Jordan's property, she saw you outside the window, you blew a kiss to her and shouted, "I love you, bab. Marry me" in breach of paragraphs 1, 2 and 3 of the order.
26. Fourthly, on 7^th January, at about 1.45 in the morning, you attended outside Sarah Jordan's property, verbally abused her by shouting "Slag" and "Slut", kicked her doors really hard and threatened violence by shouting, "I'm gonna get a gun and blow your fucking head off," whilst making a gun gesture with your hand and, while walking away, you were threatening violence and shouting, "Watch when I see your brother I'll fucking shoot him too," which was a breach of paragraphs 1, 2 and 3 of the order.
27. Fifthly, the same day, at approximately 6am, you entered the rear garden of 6 Pudsey Drive, Sutton Coldfield, the property of Miss Jordan. You smashed a rear double glazed window and then ran away from the property. The smashing of that window was a breach of paragraphs 1 and 3 of the order.
28. On 19^th January, you attended at 6 Pudsey Drive and communicated with Miss Jordan in breach of paragraphs 1, 2 and 3 of the order. On 21^st January 2014, you again attended at 6 Pudsey Drive, that you knocked on the door and were there in the garden and that was a breach of the order.
29. As I say, based on your partial admissions and the evidence of Sarah Jordan, I have found those matters proved to the criminal standard.
30. I now have to sentence you in relation to the totality of those breaches. I take account of the fact that the purpose of sentence in committal proceedings is to punish you for breaches of the court order, to secure future compliance with the order and also have regard to your rehabilitation and that I must weigh the aggravating and mitigating factors of these breaches.
31. I turn, firstly, to the aggravating factors. I am satisfied that these were deliberate and intentional breaches. This injunction was designed to protect Sarah Jordan by keeping you away from her and her home. That was the purpose of the exclusion zone and the purpose of paragraphs 1 and 2. Each breach has involved you either communicating with her or, in respect of six of the seven breaches, deliberately attending at her address at times when she was bound to be at home.
32. Next, I take the view that they are serious breaches. In particular, the breaches on 7^th January are serious. The breach at 1.45 in the morning involved threats of serious violence. The breach at six o'clock in the morning when you went back to the property involved actual damage to the property when you smashed the window.
33. Thirdly, I take account of the timing and location of the breaches. I have already referred to the fact they occurred at Miss Jordan's home. The breaches, by and large, occurred at night or in the early hours of the morning. I have heard evidence from Miss Jordan about the effect of the breaches on her. She described herself, and I accept her evidence, as being scared of her own shadow, having to put plastic over the windows, fit extra security and padlock her back gates and it is clear that your conduct is causing significant distress to her. I am satisfied that she is a vulnerable person because she is the sole carer of a young child who is now aged 8 who lives at the property and who has, in fact, been present on most of the occasions when this order has been breached.
34. I attach weight to the fact that your conduct shows a total disregard of court orders. These breaches occurred on seven separate occasions over a one and a half month period shortly after you were released from custody in October 2015 when you purged your contempt in relation to the last committal sentence that was passed upon you. In these proceedings, you were granted bail. Having been granted bail on 23^rd December, 2015 you went on to breach the injunction on a further four occasions. On the last two of those occasions, on 19^th and 21^st January, you had been granted conditional bail in criminal proceedings. Those criminal proceedings arose out of the events on 7^th January. Not only did you breach the order again while on bail granted in these committal proceedings, but you breached the conditions attaching to the bail granted in the criminal proceedings, which were conditions of no contact with Miss Jordan, a curfew and to keep away from Miss Jordan's address. There is no indication from your past conduct that you have respect for any form of court order or that you are likely to comply with court orders in the future.
35. I attach weight also to the history of breaches that have been dealt with by earlier separate committal proceedings on three other occasions. On 29^th July, 2014 His Honour Judge Robert Owen QC passed a sentence of 36 weeks. District Judge Shorthose on 12^th June of last year passed a sentence of eight weeks and His Honour Judge Mithani QC passed another sentence of nine months on 18^th August 2015. Yet, within a matter of months after coming out of custody, you were breaching the order again.
36. I must also consider the history generally of this matter, that there has been a history of injunctions being taken out for domestic violence and that this injunction, in its present form amended in 2014, in fact dates back to 2012.
37. Finally, I have regard as an aggravating feature to your character generally. Your antecedent history which I have been shown shows a number of previous convictions which include in 2006 and 2009 carrying a bladed article; threats to kill in November 2006; and, more recently, assault occasioning actual bodily harm on 2^nd November 2012 when you were sentenced to 20 months imprisonment. The fact of those convictions means that the harassment and your threats of violence carry more weight with your victim than they might do if made by somebody without that history of offending.
38. In mitigation, you are still only 28 years old. You did make partial admissions in these proceedings. The credit I can give you for that is limited because it did not avoid the trial taking place and, more importantly, it did not avoid the need for Miss Jordan to give evidence. It is notable that your justification for the hearing today when the breaches were proved was that, as you said, you wanted your day in court.
39. I accept that you have made some effort to rebuild your life, that you have done a bricklaying course in custody and got your CSCS card. You say that you want to work and lead an honest life in the community but it is difficult to attach much weight to that because almost as soon as you come out of custody, you are committing further breaches of this order.
40. I understand there is an emotional context that I take into account. It is clear that you have very great feelings for your son and it also seems that this continual campaign of harassment comes out of a relationship that you have found very difficult to give up. Those are factors that I consider but they do not excuse your conduct and, indeed, the presence of your child when many of the breaches have occurred aggravates rather than mitigates what you have done.
41. The Sentencing Guideline Council suggest a starting point of six months for breaches of an Anti-social Behaviour injunction but that is for a first time offender for these types of offences and you are certainly not a first time offender. In my judgment, there is no alternative to an immediate custodial sentence. If I were to suspend a sentence, I could have no confidence that you would comply with its terms. There is no indication in the way that you have behaved, particularly offending on bail, that if you kept your liberty, the order would be complied with in the future.
42. I pass a sentence which takes account of all the breaches rather than imposing consecutive terms and so I have regard to totality in passing the sentence that, in my judgment, is proportionate to your conduct as a whole and is the least sentence that reflects the seriousness of what you have done. I also have regard to the time you have already spent on remand, which totals 37 days.
43. But for the limited mitigation and the time you have already served, the sentence that I would pass concurrent on all breaches would be one of 18 months. I reduce that to a term of 16 months to take account of the time you have spent and that limited mitigation. You will serve up to half of that sentence in custody and I reserve any applications to purge your contempt. Thank you.

MS CULLEN: Your honour, I was just going to briefly address you on costs. There is—

THE JUDGE: I am not intending to make an order. It seems entirely academic.

[Hearing ends] Addendum
44. In approving this transcript I have noted that the sentence passed does not reflect my intention in sentencing.
45. From a starting point of 18 months (concurrent on all breaches) my intention was to reduce the sentence to reflect limited mitigation and then to give full credit for the 37 days Mr Gill spent on remand prior to the hearing. Thos 37 days are the equivalent of a custodial sentence of 74 days (because of the effect of section 258 of the Criminal Justice Act 2003).
46. To achieve my intention the sentence should have been one of 14 months and 23 days (concurrent on all breaches). I have varied the committal order to substitute this sentence.