Sahin Korta-Haupt v Chief Constable of Essex Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Flaux LJ |
| Judgment Date | 13 July 2020 |
| Neutral Citation | [2020] EWCA Civ 892 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: B2/2020/0831 (1) |
| Date | 13 July 2020 |
[2020] EWCA Civ 892
Lord Justice Flaux
and
Lord Justice Peter Jackson
Case Nos: B2/2020/0831 (1)
B2/2020/0835 (2)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY AND FAMILY COURT
Her Honour Judge Murfitt (1)
E01CM274
His Honour Judge Lewis (2)
E00CM832
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Fidler (of Stephen Fidler & Co Solicitors) for the Appellants
Eve Robinson (instructed by Essex Police Legal Department) for the Respondent
Hearing date: 9 July 2020
Approved Judgment
Before the court are two appeals from sentences for contempt of court arising from breaches of Gang-Related Injunctions:
(i) On 4 June 2020 Sahin Korta-Haupt was sentenced to 140 days detention in a Young Offenders' Institution by Her Honour Judge Murfitt for seven breaches.
(ii) On 9 June 2020 Roland Douherty was sentenced to 84 days detention in a Young Offenders' Institution by His Honour Judge Lewis for six breaches.
Having heard submissions on 9 July 2020, we dismissed the appeals. These are my reasons for concurring in that decision.
Sahin Korta-Haupt
He is aged 19. He became subject to a Gang-Related Injunction imposed by Her Honour Judge Shanks on 10 January 2019 and subsequently reviewed on 17 December 2019 by His Honour Judge Lewis. The injunction continues until January 2021.
On 28 October 2019 he was committed to detention for a period of 129 days for breaches of the injunction. On 10 December 2019, he applied to purge his contempt before His Honour Judge Lochrane and was released on giving an undertaking to wear a GPS Tracker for a period of 6 months, as directed and fitted by Essex Police.
On 4 June 2020, he appeared before Her Honour Judge Murfitt and admitted to having breached his undertaking and to six breaches of the injunction. In summary:
(1) On 4 May 2020, by associating with Roland Douherty in a public place (Loughborough Junction);
(2) On 5 May 2020, by associating with Roland Douherty in a public place (Hendon);
(3) On 9 May 2020, by associating with Talliq Mwallim in a public place;
(4) On 16 May 2020, by associating with Talliq Mwallim in a public place;
(5) On 20 May 2020, by failing to make his mobile phone available on request for inspection by a police officer;
(6) Between 14 April 2020 and 7 May 2020, in breach of his undertaking, by not wearing his tracker; and
(7) On 16 May 2020, by associating with Talliq Mwallim in a public place (Spitalfields).
The appellant admitted these breaches and gave evidence in mitigation, including the fact that his girlfriend was pregnant.
The judge imposed sentences of 28 days detention in relation to each breach and reduced the total of 28 weeks to 20 weeks to reflect the admissions that had been made.
In her careful sentencing remarks the judge directed herself as to the principles of sentencing in this context: punishment proportionate to culpability and level of harm; securing future compliance; and rehabilitation. She considered in detail the appellant's account of wearing the tag but forgetting to charge it, but she found it to be deliberate. She noted his explanation for associating with Douherty at this particular time, as described below. She noted that the breach relating to the mobile phone consisted of hiding it from the police and then throwing it out of a window. She recorded the appellant's evidence that his girlfriend was pregnant and that he would not breach the injunction in future.
The judge analysed the nature of the breaches. She considered them to be persistent rather than serious. She reminded herself of the heavier impact of a custodial sentence during the Covid-19 pandemic: R v Manning [2020] EWCA Crim 592. However, she did not consider that suspension of the sentence was appropriate.
The effect of a sentence of 140 days would be that the appellant would be released on licence by around 13 August 2020.
Roland Douherty
He is aged 20. He became subject to a Gang-Related Injunction imposed by His Honour Judge Lochrane on 25 September 2018 and subsequently reviewed on 24 September 2019. It is due to expire in September of this year.
He had been the subject of three earlier committal applications:
(1) On 15 February 2019, he was sentenced by His Honour Judge Lochrane to a £50 fine for entering a prohibited area on 1 October 2018.
(2) On 7 June 2019, he was sentenced by His Honour Judge Boora for four breaches of the injunction by entering prohibited areas on 20 and 22 April 2019. He received four concurrent sentences of 14 days detention, suspended on terms that he comply with the terms of the injunction until its expiry date.
(3) On 3 October 2019, he was sentenced by Her Honour Judge Walden-Smith to 19 weeks detention for making a gang-related video. On that occasion the court did not activate the suspended sentence.
On 24 October 2019, he applied to purge his contempt and was released on giving an undertaking to wear a GPS Tracker for a period of 6 months, as directed and fitted by Essex Police.
On 20 May 2020, the appellant was arrested for breaches of the injunction. He spent one night in custody before being brought before the court the following day, when he was bailed. On 27 May 2020, he appeared before His Honour Judge Lewis and admitted to six breaches of the injunction:
(1) On 12 February 2020, by being in possession of cannabis at Stansted Airport;
(2) Between 12 February and 25 February 2020, by appearing in an Instagram story with Sahin Korta-Haupt, smoking what was, or was clearly intended to represent, a cannabis joint;
(3) On 4 May 2020, by associating with Sahin Korta-Haupt in a public place (Loughborough Junction);
(4) On 5 May 2020, by associating with Sahin Korta-Haupt in a public place (Hendon);
(5) On 20 May 2020, by being in possession of cannabis; and
(6) On 20 May 2020, by wearing an article of clothing with an attached hood in a public place (South London), when the weather was not inclement.
The judge heard evidence in mitigation from the appellant and his mother. A particular feature was that the appellant's younger brother had been murdered by stabbing in June 2018 in a gang-related incident. It was said by both appellants that they had met up when they did as it was around the time of the late brother's birthday. The appellant also referred to having started a university course in February 2020.
The judge reserved judgment on sentence to 8 June 2020, extending the Appellant's bail conditions to attend. On 8 June, the appellant failed to surrender to his bail, arriving at court approximately two hours late. Upon arrival, he was arrested pursuant to a warrant which had been made by HHJ Lewis in light of his non-attendance. He was brought before the judge on 9 June 2020, when these sentences were passed:
(1) Breach 1 – No penalty
(2) Breach 2 – 60 days
(3) Breaches 3 and 4 – 27 days on each count, to run concurrently with each other, but consecutively to the other sentences;
(4) Breaches 5 and 6 – 21 days on each count, to run concurrently with each other, but consecutively to the other sentences.
A discount of one-third was given for the admissions leaving a total sentence at 72 days.
The judge also activated the suspended sentence passed by His Honour Judge Boora on 7 June 2019. The total sentence was therefore one of 86 days detention, which was reduced by two days for...
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...Applicant is subject. As well as the two cases cited by Mr Leathley, the issue was raised in Korta – Haupt v Chief Constable of Essex [2020] EWCA Civ 892 (13 July 2020); Randhawa [2020] EWCA Crim 1071 (23 July 2020); Wayne [2020] EWCA Crim 1303 (25 September 2020); and Beirne [2020] EWCA ......
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