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Cite as: [2001] 1 Cr App R(S) 93, [2000] EWCA Crim 51

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TUCKNOTT, R v. [2000] EWCA Crim 51 (21st July, 2000)

Case No: 00/02617/X2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT MAIDSTONE
(HIS HONOUR JUDGE BALSTON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21st July 2000

B e f o r e :
LORD JUSTICE HENRY
MRS JUSTICE BRACEWELL
and
MR JUSTICE RICHARDS
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	REGINA
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	DAVID NEIL TUCKNOTT

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Carl Hackman Esq (instructed for the Appellant)
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE HENRY:
1. This is the judgment of the Court. David Neil Tucknott is now 40. On 15th March 2000 he pleaded guilty at the Crown Court at Maidstone (His Honour Judge Balston) on four counts of making threats to kill, and was sentenced to eight years' imprisonment on each count, concurrent. He now appeals against sentence with leave of the Single Judge.
2. The threats to kill were threats to kill his latest girl-friend, Ms Leslie Stone, and also, in Counts 2, 3 and 4, her new partner. Though, for reasons which will become plain, the threats were taken very seriously, there was no immediate danger to either because the appellant was serving a sentence of imprisonment at the time, and the threats were made not to the intended victims directly, but to prison officers escorting him to hospital for treatment of his wounds, self-inflicted when he heard that Ms Stone had a new boyfriend. The relationship with her was his third serious relationship with a woman to end in violence.
3. The first was in his early 20's, when on 24th August 1983 he was convicted of an assault occasioning actual bodily harm (Section 47) and put on probation for 18 months.
4. The next occasion was very much more serious.. He lived as man and wife with a woman by whom he had a son. After a four-year drunken and turbulent relationship he killed her with a knife, was convicted of manslaughter with diminished responsibility and was sentenced to seven years, serving five.
5. He was released from prison in September 1996. In 1997 he was the subject of three probation orders, the first for threatening behaviour, the next two for drink-driving offences.
6. In April 1998 he met Lesley Stone, and later in that year he moved in with her. The relationship was turbulent. He was possessive, drunken and violent. Later, he would say he was sorry and needed help, but he would do it again.
7. In February 1999 she "finally split" from him, he started harassing her, and this came to a head when he broke into her home, slashed her clothes, and put a brick through her window. He was arrested and charged, and on 28th July 1999 sentenced to 21 months' imprisonment for harassment, burglary and theft, and criminal damage.
8. When he was first imprisoned he was at Highdown, which was near Ms Stone's home and she visited him, apparently despite having written to the governor indicating that she wished nothing more to do with him. He seems to have interpreted this as her "... messing him around ... [with] mind games".
9. At Highdown there was a prison officer who had been to school with him. She saw him daily and it was to her that he made the first threat to kill Lesley Stone. He said to her that he had had murderous thoughts. He had killed his first wife, she was worth more than Ms Stone since she had borne him a son, while Ms Stone was messing him around, wanting him and not wanting him, and he was going to kill her and then himself. The officer believed his threats and alerted the prison authorities (Count 1).
10. The situation was temporarily resolved when he was moved to Elmsley, where he could only be in contact by telephone, which the prison authorities tried to prevent. However, he evaded this attempted restriction by getting others to ring her, and pass the telephone over to him. In one of these calls he found out about Ms Stone's new boyfriend. His reaction was to slash his wrist with a razor blade. This necessitated his being transferred to a hospital outside the prison for treatment. In the course of this he made a number of threats against Ms Stone to the prison officers escorting him, saying that he was going to kill her and her new partner when he was released, either by giving them an overdose of drugs or by acquiring a gun and shooting them. These conversations form the basis for Counts 2, 3 and 4.
11. In examining the medical reports, it is convenient to start with Ms Julia Houston's report of 23rd March 1999, prepared for the 1999 proceedings which led to his being imprisoned for 21 months, because, according to Dr Stephen Wood, Tucknott's condition remained unaltered from then until Dr Wood reported on it for the proceedings now appealed to us. Ms Houston reported:
a) that the medical team which had been responsible for treating him under a Probation Order (not recommended by them) gave their views (10th December 1998) that "... he was not treatable as an out-patient, and probably not treatable as an in-patient either".
b) that the Probation Service were concerned as to him, believing that he "... should be detained in a secure unit in the interest of public protection".
12. Her conclusion was:
"Mr Tucknott is a 38 year old man with a previous conviction for manslaughter against a partner, whose current behaviour raises extreme concerns about the risk to his current partner. He is currently charged with criminal damage, burglary and threats to kill (against her ex-husband). Although Mr Tucknott undoubtedly suffers from severe personality difficulties which manifest themselves in feelings of inadequacy, emotional instability, difficulties tolerating rejection and stress, and acting out of physical violence towards property, the results of the current assessment suggest that there are not enough indications for a positive response to treatment to recommend a period of assessment in a medium secure unit under Section 35. At the current time there is also no indication that he requires immediate transfer for urgent treatment in hospital. However, it should be noted that Mr Tucknott is likely to act out in a self-destructive way when he is under periods of stress or experiences real or imagined rejection, including the rejection from the Shaftesbury Clinic. Clearly he will require observation and close monitoring around this time. The current assessment also does not preclude Mr Tucknott being re-assessed again in the future should circumstances change. Should he require urgent treatment in hospital the possibility remains for him to be transferred to hospital as a convicted prisoner. Should he receive a custodial sentence that is long enough for him to be transferred to HMP Grendon Underwood, then this may also be a possibility. Our service would be happy to consider testing out his motivation for treatment in the community in the future should he wish to pursue this. Finally, in terms of risk management, it is also clearly important that Ms Stone is warned of the potential risk to her which I understand indeed she has been."
13. Dr Wood said:
"Mr Tucknott does not present any symptoms of a mental illness but there is clear evidence that he suffering from a personality disorder characterised by abnormally aggressive and seriously irresponsible social conduct. As such he could be classified as suffering from a pyschopathic disorder under Section 1 of the Mental Health Act. I have no direct evidence in either direction that Mr Tucknott's condition is susceptible to treatment or otherwise. The issue of treatability of psychopathic disorder is of course a highly specialised and controversial one and may be the subject of new legislation shortly. If such legislation were to relax the treatability criteria required by the present Mental Health Act, then I have no doubt that Mr Tucknott would be liable to preventative detention. ... I respectfully recommend that Mr Tucknott be remanded in custody for a further period to allow an expert opinion from a consultant forensic psychiatrist from Broadmoor Hospital to be obtained on the specific issue of Mr Tucknott's treatability."
14. At the same time, a report by Adrian Wilson of the Surrey Probation Service shows the real concerns of that body, both as to his high risk of re-offending and their fears as to the nature of such re-offending.
15. All in all, given the material in front of him, it is not surprising that Judge Balston concluded:
"Everything I have heard about you drives me to the conclusion that you are a volatile, disturbed and potentially extremely dangerous man. For these reasons I must pass a sentence which will protect the public from you for a considerable period."
Accordingly, he proceeded to pass the sentences of 8 years concurrent on each count. Mr Hackman for the appellant told us so far as Dr Wood's suggestion that the matter be put over for further investigation as to whether a more specialist team could find any treatable disorder, both the court and the defence had agreed that further adjournment would be of limited benefit, and the defendant ought to be sentenced immediately.
16. The matters of mitigation which Mr Hackman urged upon the Court were as follows:
a) guilty pleas were entered at the first opportunity;
b) the threats were not made to the intended victim or victims of the threats;
c) the threats were made to prison officers, rather than the public;
d) the defendant was not in any position to act upon the threats, and would not be for some time;
e) the threats were made largely in extreme circumstances, on the break-up of his relationship;
f) the defendant has shown that generally speaking he can exist in the community, and has a household to which he can go, namely that of Mr and Mrs Creed, who are aware of his offending history, and who the appellant lived with for 18 months prior to his imprisonment in 1999. Mr Creed has been a friend of Mr Tucknott's since childhood. There he has shown that the can live a normal life.
17. There has been a certain amount of judicial division as to whether threats to kill can amount to a "violent offence" for the purposes of passing a longer than normal, more than commensurate, sentence under Section 2(2)(b) of the Criminal Justice Act, 1991. Section 31 defines a violent offence as an offence
"which leads, or is intended to lead, to a person's death or to physical injury to a person".
For the debate see R -v- Richart [1995] 16 Cr App R(S) 981; R -v- Ragg [1996] 1 Cr App R(S) 176; and R -v- Wilson [1998] 1 Cr App R(S) 341. But that debate need not concern us. First the judge did not purport to act under that statutory provision, and in any event enjoys common law powers in relation to deterrent sentences. Second, as the appellant was serving a prison term, here his threats could not lead nor realistically be intended or likely to lead in themselves to death or injury to the persons threatened (though the potential risk to Ms Stone and her new partner is obvious).
18. Next, we remind ourselves that the maximum penalty for this offence is ten years' imprisonment, and that the judge did not here seek to make any sentences consecutive. Effectively the threats were largely directed against one person, Ms Stone. Viewed that way, this sentence was as high as it could lawfully be with the mitigation of a guilty plea if charged as a one-count indictment.
19. Mr Hackman made some submission to us as to the general level of sentencing for this offence. He cited R -v- Parker [1995] 16 Cr App R(S), R -v- Anderson [1992] 13 Cr App R(S) 456, R -v- Coleman [1994] 15 Cr App R(S) 713, R -v- Shepherd [1998] 1 Cr App R(S) 397. The cases of Anderson and Coleman appeared to turn on their own facts. We took the general level of sentencing to be as summarised in Blackstone 2000 at B1.97:
"Sentences approved by the Court of Appeal for this offence range downward from five years".
20. While courts at first instance have passed sentences in excess of five years, so far it appears that this Court on appeal has not approved a sentence of more than five years for this offence on a plea of guilty. It may be that a higher sentence could be justified in a special case, but the reason for the general position is plain: concern lest at higher figures the offence of threats is placed too high in the scale of violent crimes (in which category this offence, in our judgment, should fall). Given the seriousness of the threats in this case, we think the proper comparators are to be found in those cases where this Court approved or awarded four or five years in total. As those cases reflect, judges have to consider the safety of the public. This is difficult where, as here, there is no present possibility of either a hospital order or for the Court to pass a longer than normal sentence, as it could if this was a violent offence as defined in Section 31 of the 1991 Act. This dilemma is referred to in several of the authorities, for example R -v- Bowden [1986] Cr App R(S) 155.
21. Against that sentencing background, we are forced to conclude that the total sentences of eight years here passed were manifestly excessive when measured against the general level of sentencing for this offence. But we agree with the judge as to the need to protect the public within that general level of sentencing. Accordingly, we quash the sentences of eight years on each count and substitute sentences of five years on each count, concurrent. To that extent this appeal succeeds.
22. We add our own voices to those who have urged this offence to be made a "violent offence" under the Act. We hope too that Mr Tucknott's condition becomes treatable, and so amenable to hospital orders. That would provide a better protection for the public, and a better future for Mr Tucknott.