England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		Monday 11th June 2001

1. JUDGE GODDARD: On 8th February 2001 at the Bournemouth Crown Court before His Honour Judge Tyzack QC, this appellant was convicted of robbery and possession of an imitation firearm and was remanded for reports. On 4th May he was sentenced to three years on each count concurrent. On 5th June after an oral hearing the single judge granted leave but refused bail and he directed up to date reports. We have the prison report dated 7th June and the report from Dr Maginn dated 6th June, to which we shall come in due course, together with the information that has been placed before us this morning.
2. It is necessary to set out the history of this matter. The appellant is 38 years old. His one conviction was in February 1998 for an offensive weapon he was conditionally discharged.
3. The facts of the robbery were these. On 25th May 2000 the appellant went into a garage in Bournemouth. He threatened the cashier with an imitation handgun and demanded money. At first the cashier thought it was a lighter and that the man was joking. She then realised that he was serious and thought the gun might be real. She gave him the £10 and £20 notes. He demanded it all and she handed over the £5 notes. He left. The cashier was badly affected by this experience. It was recorded on CCTV but we are told by counsel in his advice that inter alia it showed that a customer had left a purse on the counter, came back and retrieved it by reaching under the appellant's gun arm.
4. At the trial there was no dispute as to fact. The victim was not called. Statements were read. An admission was made that the appellant was the man in question. The sole issue was the appellant's mental condition. His case was that he was not able to know the nature and quality of his acts, nor that it was wrong. However, the jury convicted.
5. We now turn to the reports made by four psychiatrists up to trial. On arrest on 29th May he was remanded to Dorchester Prison. Because of his mental state he was transferred to the hospital wing and then he was transferred to the secure unit at St. Anne's Hospital in Bournemouth.
6. On 11th July Dr Kosky reported. His conclusion was that it was his opinion that Mr B. was currently mentally ill. The exact nature of his illness was not clear. He recommended that he be transferred to an appropriately secure environment for further assessment and treatment. On 7th August Dr Kosky reported that he was still of the same opinion.
7. On 16th August Dr Stone reported that further assessment was needed to see if he was suffering from a mental illness or fabricating symptoms. His transfer to hospital was recommended. On 1st September Dr Rowton-Lee reported, having seen the prisoner on a number of occasions, that in his present state he was unfit to be tried. It is still not clear if his illness was genuine and he recommended admission under section 35 of the Mental Health Act 1983.
8. On 9th September he was so admitted and the period was extended from time to time. On 20th October 2000 Dr Rowton-Lee reported that it seemed increasingly likely that over the past two years he had had an increasing clinical depression but not a schizophrenic or psychotic illness.
9. On 14th November 2000 Dr Ford reported that currently his mental state was entirely normal and he was fit to plead. Over the past year he had suffered from a psychotic depressive process associated with alcohol abuse. It was just possible that he had a schizophrenic illness and had made an excellent response to treatment.
10. On 17th November 2000 Dr Rowton-Lee now believed that his depression, psychotic episodes secondary to the depression, his history of serious alcohol abuse and psychotic abuse secondary to alcohol abuse, had caused a mental disorder. He believed that the appellant's judgment was impaired at the time of the offence but he did conclude that he was fit to be tried.
11. On 28th November Dr Stone reported that the appellant had suffered from a serious mental illness, most likely schizophrenia, and was still suffering from residual symptoms. Although legally sane at the time of the robbery he was then suffering from a psychotic illness.
12. On 10th January 2001 Dr Kosky reported that it was likely that he was not in a normal mental state at the time of the offence and in his opinion was mentally ill at that time and he remained so though he was substantially improved. He did not believe that he now posed a significant risk to the public and would not support detention in a special hospital.
13. On 20th January 2001 Dr Ford reported that he was fit to plead but it seemed highly likely, given all the evidence from various sources, that he suffered from a psychotic illness which had occupied him for much of the year 2000 until his improvement with medication.
14. On 5th February 2001 Dr Rowton-Lee said that all psychiatrists agreed that this was a complex case with a division of opinion as to whether at the time of the offence he was suffering from a schizophrenic illness or some other mental state disorder. Both alcohol and depression would substantially impair his mental state. He was fit to plead and was not legally insane.
15. The trial then took place and on conviction on 8th February the judge made a section 38 order. He had a report from Dr Cantrell prepared for the purposes of transfer to hospital under section 48 although that doctor felt that for logistical reasons a section 38 order would not be helpful. However, as we have said, it was made.
16. On 25th April there was a report from Dr Farnham and Dr McNamara. The opinion expressed in that report was this:

"A case conference was held on 11th April 2001. It was agreed by the members of the Multi-disciplinary Team that there had been no evidence of mental illness over the time of his assessment on Devon Ward. It was agreed that he had recovered from the preceding depressive episode and psychotic symptoms and that there was no present indication for him to remain in hospital."

17. The report continued:

"There is evidence from both prison and hospital records that these symptoms of depression and psychosis were present prior to the index offence and it is likely that the index offence occurred whilst Mr B. was suffering from symptoms of psychosis and depression."

18. They also reported that his mental condition:

"...had responded well to treatment. He is no longer suffering from a mental disorder of a nature or degree to warrant further inpatient treatment, and therefore does not fulfil criteria for a disposal utilising the Mental Health Act. I therefore cannot make a recommendation for a Hospital Order under section 37..."

19. On 2nd May this was listed in front of His Honour Judge Wiggs in Bournemouth because His Honour Judge Tyzack was presently in Cornwall and it would be difficult to produce the defendant there. His Honour Judge Wiggs did not think that a probation order was appropriate and because that left only custody he referred it back to the trial judge. That indication produced an addendum to Dr Farnham's report which is dated 3rd May. It was an unsolicited and supplementary psychiatric report and it reads:

"I am alarmed to discover that, in the absence of specific recommendations for a hospital order, the Court feel obliged to consider a custodial sentence in Mr B.'s case. Although it is my opinion that Mr B. does not currently fulfil the criteria for a hospital order under section 37 of the Mental Health Act 1983 or a guardianship order I do believe that he continues to suffer from a mental disorder, that is depressive illness. Although this is not of a nature or degree to want treatment in hospital. It does clearly require further intensive treatment if Mr B.'s mental health is not to deteriorate.

If Mr B. receives a custodial sentence this is likely to have an extremely negative effect on his mental state and in my opinion will almost inevitably lead to the need for re-assessment and probably consideration for urgent transfer to hospital."

20. In short he proposed a community based sentence.
21. On 4th May the appellant appeared in front of Judge Tyzack. Having described the offences he continued:

"I accept that you were almost certainly suffering from a depressive illness of some kind at the time of the offences. You almost certainly had consumed a quantity of alcohol. Neither, of course, provide you with any excuse, although I accept the medical evidence which is before me that the fact that you were suffering from depression may reduce the responsibility you had for these offences. However, you must have and you must accept that you did and were responsible to a substantial degree for what you did.

I also accept that this was out of character for you, in the sense that apart from a conviction in 1996, some four years before, you are a man of hitherto good character. The sentence imposed by the court on that occasion was one of conditional discharge. You did not commit any offences during the period of that discharge. That I take into account in your favour.

Also, on 8th February this year I was persuaded, having heard the evidence of two eminent psychiatrists, Dr Rowton-Lee and Dr Stone, that an interim hospital order should then be made. At that time it seemed to me that you clearly fulfilled the criteria for making such an order, and indeed I expected in the light of what I was told then that some form of Mental Health Act disposal was the likely outcome in this case.

But that is no longer the situation. The joint report of Dr McNamara and Dr Farnham, clearly states that your mental condition has responded well to treatment, and that you no longer fulfil the criteria for any disposal under the Mental Health Act. It is therefore now for me to sentence you for these serious offences.

I have re-read all the medical reports upon you, which were before me on 8th February, and also Dr Farnham's supplementary report dated 3rd May this year. I quite understand and have sympathy with the submission that an immediate prison sentence may well cause a deterioration in your mental health. But the difficulty I am faced with is that it seems to me that these offences are far too serious for any form of community sentence. There would, in my judgment, be a sentence of public outrage if an armed robber was effectively placed on probation.

In my judgment there must be a prison sentence here, and if, as I hope does not happen, your mental health deteriorates, it must be a matter for the prison authorities to deal with appropriately. I do take into account in sentencing you today the following factors: Firstly, that the offences were committed against a background of the break-up of your marriage and your deteriorating mental health.

Secondly, although you pleaded not guilty to these offences, most of the evidence was read, including – and this is important – the evidence of Mrs Maclean.

Thirdly, that you have been receiving treatment for your mental problems for nearly a year now, and for almost all of that time you have been an inpatient in a psychiatric hospital or hospitals. I particularly bear in mind that none of that time can counts towards your sentence. It seems to me that I should bear that in mind, and bring the entire period into account.

Fourthly, it is to your credit that you have clearly cooperated with the doctors treating you, and that has caused you to respond so well to the treatment they have been providing.

Fifthly, apart from the conviction in 1996, for which you were given a conditional discharge, you are a man of previous good character.

Finally, I also bear in mind your present vulnerable state of health, and the fact that your wife and family are standing by you.

All those factors I take into account in your favour, because they do in my judgment reduce the normal tariff of sentence for this sort of offence. I have been referred to the case of Bigby (1994) 50 Cr.App.R (S) 424. I accept that the normal tariff of a case of this sort is one of six years' imprisonment. In the circumstances here, it seems to me that I can substantially reduce the normal tariff."

22. He then passed the sentence of three years' imprisonment.
23. The judge, when asked by Mr Pardoe, said that he had taken off the time spent in hospital and but for that reduction the sentence would have been one of four years and four months.
24. In his grounds of appeal Mr Pardoe submitted that this sentence was firstly wrong in principle because all the reports were reared to a hospital order, his culpability had been reduced by his mental state. Counsel relied on section 82(3) of the Powers of the Criminal Courts Act 2000 which, inter alia, required the judge to take account of the likely effect of custody on an offender who is and/or appears to be mentally disordered – that is suffering from a mental disorder within the meaning of the Mental Health Act. The court should not resile from the earlier stance because a hospital order could not be made. Bearing in mind he had spent 12 months in prison and/or secure unit, the probation order could be justified. Secondly, he submitted that the sentence was excessive, the judge having stated, as we have said, that but for eight months in hospital the sentence would have been four years and four months, and he had been referred to the authority where on very similar facts the court did not find 18 months unduly lenient.
25. We now return to the reports before us and what we have heard today. So far as the prison report is concerned, dated 7th June, the report from the prison service was that he wanted to be left alone. Dr Maginn's report dated 6th June, naturally brief in its conclusions, said that Mr B. describes a number of symptoms similar to his previous presentation when depressed with hallucinatory experiences, depressed mood and reduced appetite:

"These would be consistent with a depressive illness with psychotic features. However, his presentation when seen on 6th June was not entirely consistent with his expression of symptoms. Also the sudden recurrence of symptoms whilst taking medication, upon hearing that going to prison must raise a possibility also of feigning symptoms. The number of inconsistencies in his presentation and vagueness would seem to support this. Obviously this is the first occasion that I have met Mr B. and it would seem important that members of his own psychiatric team who have had past contact with him see him to evaluate his mental state."

26. It was in those circumstances that Dr Farnham saw the appellant this morning and he reported to us orally that the appellant's present state was that he suffered from a mild to moderate depressive illness. He was showing a slowing of thoughts and actions. He had maintained no contact with his wife and family and said that he had forgotten the address and telephone number. My Lord, Laws LJ, asked him the question as to whether the symptoms were genuine or not because of the contents of earlier reports. Dr Farnham said that different opinions had been expressed as to whether they were genuine but he took the view that he was supported in his opinion that there was a depressive illness because there was an understandable depression before the offending behaviour and there may be cultural issues which explain the questions that have been raised in the past as to whether these symptoms were genuine. So we are not only indebted to Dr Farnham but also to the court probation officer who also saw the appellant this morning in interview and has come to the conclusion that he qualifies for what is now known as a community rehabilitation order.
27. We, in our judgment, have come to the conclusion that that is the right sentence to be passed. We do not in saying that ignore the serious nature of the offence. We wish to emphasise that these are exceptionally different circumstances which can lead the court to take the course that we propose. We particularly bear in mind that there is evidence from the doctors for their opinion of an existing illness before this offence was committed. In these circumstances, we can say we feel that the right sentence is to make the community rehabilitation order with a condition of treatment. We understand that this can be provided by Dr Jeffries.

LORD JUSTICE LAWS: Stand up, Mr B.. For the reasons given in my Lady's judgment you will understand the court intends to make a community rehabilitation order in your case which will mean you will be supervised. Do you understand?

THE APPELLANT: Yes, sir.

LORD JUSTICE LAWS: The period for which we would make the order would be two years and we would make it a condition that you undergo any psychiatric medical treatment that is offered to you. Do you understand that too?

THE APPELLANT: Yes, sir.

LORD JUSTICE LAWS: The court can only make such an order if you consent to it being made. Let me explain however what the order means. It means you must, as I have said, cooperate with any medical treatment that is offered to you and any other directions of the supervising officer. Do you understand?

THE APPELLANT: Yes, sir.

LORD JUSTICE LAWS: You must cooperate with what you are told to do by him. You must make sure that the probation officer, the supervising officer in charge, always knows your address. If you were to breach or to violate the terms of the order you could be brought back here and punished again for the offence. Do you understand.

THE APPELLANT: Certainly.

LORD JUSTICE LAWS: If you commit any other offence meantime again you could be brought back here and punished again. Do you understand all those things?

THE APPELLANT: Yes.

LORD JUSTICE LAWS: Do you agree to the probation order, that is to say the community rehabilitation order, being made then for a period of two years?

THE APPELLANT: I respect.

LORD JUSTICE LAWS: We have to be clear. We cannot make the order unless you agree to it being made. Do you agree?

THE APPELLANT: I agree, sir.

LORD JUSTICE LAWS: Mr Pardoe, it is one of those cases where I am sure you will have a further word with him afterwards.

MR PARDOE: My Lord, I will.

LORD JUSTICE LAWS: So that there is no doubt that he understands what the position is.

MR PARDOE: I will.

LORD JUSTICE LAWS: Thank you very much. Then that is the order of the court.

In this case a representation order was made under the new legal aid regime and the court is therefore required to consider at the end of the appeal whether in effect to order any contribution to the costs against the appellant. In this case we make no such order. Thank you Mr Pardoe.