England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 12th August 2004

1. Sir Edwin Jowitt: This appellant is 24 years old. He has a history of irrational behaviour which has taken the form of hoax calls asking for the attendance of the emergency services. This conduct began when the appellant was only seven years old. It was not until 1996, when he was 16, that it first brought him before a criminal court when, for a series of such offences and an offence of using threatening behaviour, he was prosecuted under the Telecommunications Act 1984. He was made the subject of a supervision order to continue until he reached the age of 18 which would take him to the end of May 1998. Sadly supervision was not successful in restraining the appellant.
2. In October 1997 he was again before the court, when for a further series of hoax phone calls to the emergency services he was sentenced to two months' detention in a young offender institution. Also on this occasion offences of affray, common assault and threatening behaviour were dealt with. In total the detention period was four months.
3. Then in January 1998 the appellant was put on probation for six months for making further hoax calls. In November of that year for more such offences, an offence of arson and an offence of deception he was made the subject of a two year probation order and required to attend an anger management course. The hoax calls had begun within days of making the earlier probation order.
4. In February 1999 for more such offences the appellant was sentenced to be detained for three months in a young offender institution. For the next series of offences the prosecution decided to prosecute the appellant for the common law offence of committing a public nuisance and at Newcastle upon Tyne Crown Court he was sentenced to five years' detention. The appellant was released from that sentence on 21st March last year. Two months later the hoax calls began again and on 17th February this year at the same Crown Court for 12 offences of public nuisance the appellant was sentenced to concurrent sentences of eight years' imprisonment.
5. He appeals against these sentences by leave of the single judge.
6. It would not be helpful if we were to prolong this judgment by rehearsing the facts of every one of these 12 offences, but we refer to a few of them to give a picture of their variety. On 20th May the appellant called the fire brigade from his mobile phone claiming that his house was on fire. Two fire engines were dispatched. On 22nd May he made four calls. He twice called for an ambulance, falsely claiming he had been assaulted. He called for the coastguard, claiming that he was suicidal after a family row. He called the police, saying he was going to jump into the water at Blyth docks. On 28th May the appellant called the ambulance service, giving a false name, claiming that a friend had taken an overdose. Finally, on 14th June, the appellant called the fire service claiming there was a fire in a public house in Blyth. Two fire engines attended. It was discovered that they had been called as a result of a hoax call. Later that day the appellant made another hoax call to the coastguard which resulted in a search and rescue operation being launched. Using a false name, he said that his friend had threatened to throw himself into Blyth docks. The search and rescue operation lasted for 45 minutes. It even included the use of a police helicopter.
7. The appellant was arrested on that same day. In interview he admitted making the hoax calls. He said that he felt suicidal and needed help.
8. The pre-sentence report makes the point that the calls for help were made on the pretext that the appellant's suicidal thoughts were genuine. A more obvious body for him to approach would have been the Samaritans. The writer of the report says that, although the appellant accepts that his hoax calls had caused constant disruption, he seems to have only a superficial appreciation of the potential harm involved. He appears to have no real understanding of the risk to genuine victims in genuine life and death situations to whom help may be delayed because his hoax calls are being attended to. The writer speaks of the attempts which have been made to help the appellant, all without avail. When under supervision in the community the appellant has failed to respond each time to any attempt made to help him. This includes also the period when the appellant was on licence after he was released from his five year sentence.
9. The writer of the report accepts that prison has not acted as a deterrent, but she concludes:

"Until he makes some prolonged and consistent attempt to find an alternative way of coping with personal crises, then the danger is that he will revert to making phone calls. The risk of reoffending is therefore high."

10. In the parole assessment report, made while the appellant was serving the five year sentence, the writer recorded that, prior to that sentence being imposed, the appellant had been seen by five different psychiatrists. He writes:

"The general consensus by all was that he was neither significantly mental impaired nor presenting symptoms of mental illness."

11. It was noted, however, that he has a history of conduct disorder and a personality disorder. He had been offered voluntary out-patient counselling at the Kolvin Unit of the Department of Forensic Psychiatry at Newcastle General Hospital, but failed to keep appointments.
12. The writer adds:

"On the recent visit Mr Lowrie told me that he was now very sorry for what he has done and fully understands the consequences of his action. However, his main motivation for not reoffending appears to be to avoid further custodial sentences. The persistence and nature of these his offending would indicate that Mr Lowrie does not understand the seriousness of and potential dangers of his actions."

13. We point out that, despite the appellant's protestations to the writer of this report, the appellant's telephone calls began, as we have said, only two months after his release from a substantial period of imprisonment.
14. We have before us today two psychiatric reports written since the period the appellant received that earlier sentence of five years. The first is from Professor Grubin, Professor of Forensic Psychiatry, and is dated January 2000. He concludes:

"... there can be little doubt that Robin Lowrie meets the criteria for psychopathic disorder as defined in the Mental Health Act. Clinically he could be diagnosed as suffering from either antisocial or emotionally unstable (impulsive type) personality disorder. His behaviour and his interactions with others are clearly inflexible, maladaptive, and persistent. He is impulsive and deceitful, he has little regard for social norms or for the safety of others, and he displays little in the way of remorse. There is also evidence of emotional instability."

15. Professor Grubin concludes by referring to the views of other psychiatrists, one of them being Professor Graham, that at the time of writing the report a hospital order was not indicated.
16. The second report is dated 31st August 2003, before the sentence under appeal was imposed. Its author is Dr Turkington. He says at paragraph 25:

"Mental state examination: This revealed that he was able to talk about all his problems in tremendous detail but showed almost nothing in the way of emotional resonance with any of the distressing matters discussed. He was not depressed when seen and showed no evidence of anxiety. There was no evidence to indicate a psychosis."

17. Then at paragraph 30, continuing through to paragraph 33, Dr Turkington says:

"There is clear psychiatric mitigation.... Unfortunately the problem in this case is that he has a severe personality disorder with antisocial and alexythmic traits which will respond only minimally despite the best efforts of psychological support as delivered by the community psychiatric nursing served from North Tyneside District General Hospital.

As such there must be a high risk of repetition and a strong likelihood of further abuse of illegal substances and alcohol. Though he currently appears very highly motivated to engage in treatment, it is unfortunately the opinion of all medical health professionals involved that his personality disorder is such that it would be very unlikely to respond to any degree that might allow the level of risk to diminish of repetition."

18. Speaking of provision if the appellant were to retain his liberty, Dr Turkington said:

"There would be no advantage to be received by having this young man attending the psychiatric out-patient clinic as he would not benefit from any form of psychiatric medication of any kind. The supportive psychotherapy by nursing staff would have to be ongoing over a very long period of time and would help to a small degree but not enough to diminish risk of repetition."

19. This is the factual and psychiatric context in which we have to consider this appeal.
20. Mr Styles for the appellant says that, bearing in mind the plea of guilty, the judge at first instance must have selected too high a starting point to impose the sentence that he did. We accept this was a long sentence and that the situation faced by the judge was one of despair. All things have been tried to prevent this man behaving as he so persistently does behave. There is simply no reason at the present time to think once he regains his liberty there will be any change. Everything seems to indicate to the contrary.
21. What we have to bear in mind, despite the psychiatric mitigation, which plainly there is, is the impact of this appellant's behaviour on innocent people. The more often this type of offence occurs, the greater the likelihood that one day, for example, an ambulance will be on its way to deal with some call and in response to a hoax call by the appellant some person in desperate peril will not receive the prompt attention that is required and will lose his or her life. The Court takes the view that society is entitled to expect the courts to provide protection against that eventuality.
22. Regrettable though it is, nothing can be done to help this appellant. This appeal has to be dismissed.